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Estate Guidance/ Land Acquisition Guidelines (Revised
07/2004)
(Revised 09/1999) This document provides general guidance for the procurement of all real property land interests by lease, purchase, condemnation, or otherwise. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (49 CFR Part 24) is mandatory and establishes the minimum Real Property Acquisition Policies for appraisal, negotiation and property possession standards and requirements. 2.Background The Federal Aviation Administration has been relieved from the requirements of the Competition in Contracting Act, Federal Acquisition Regulations (FAR), Brooks Act, Prompt Payment Act, and other restrictive regulations and laws. This document provides general guidelines for the procurement of real property land interests taking into consideration the changes in laws, rules and regulations. 3.Guidelines Normally land interests needed by the FAA are for on-airport sites or are site specific and will be acquired through a single source. Acquiring interests in land by the competitive method should be used when the possibility exists that more than one acceptable site exists within the delineated area that could satisfy the FAA. s needs. 4.Request The process for procurement of real property interests can be initiated informally such as a request for market information, potential costs, or availability. Prior to conducting formal negotiations, or awarding of a contract a formal written request certified by an authorized requesting official must be received. At present, formal certification is normally provided by means of a Procurement Request (PR); however, a memo or other form of document can be used as a formal request as long as the document contains an original signature of an authorized requesting official. If costs are involved in the procurement, a certification of funding must be received prior to obligation of any funds for any purpose or award of a contract. 5. Requirements (Revised 07/2004)Requirements received from the customer may be general in nature or can be very specific. The Real Estate Contracting Officer should ensure that whatever requirements are received, they contain sufficient detail to assure the customer. s needs are met. The Real Estate Contracting Officer should work with the customer to clarify unclear or incomplete requirements and verify that the procurement requested is in conformance with applicable regulations. When appropriate, the Real Estate Contracting Officer should advise the customer of any alternatives available to satisfy the requirement. Improvements to the land accomplished by the property owner (i.e. gates, grading, paving, clearing, fencing, etc.), as requested by the FAA, may be included in the procurement. Costs of improvements shall be evaluated to assure they are fair and reasonable. Payment for costs of these improvements can be by lump-sum payment or amortized over the term of a lease. On requests for renewal of existing leases, the Real Estate Contracting Officer should determine if the property continues to meet the FAA. s needs without any changes. Any changes required in the lease terms should be negotiated and included in the succeeding lease. Legal description, title information, market survey/appraisal, Environmental Due Diligence Audit (EDDA), Environmental Assessment (EA) or Finding Of No Significant Impact (FONSI) should be obtained as early as possible in the land procurement process. This information is required prior to making a final offer to the property owner(s) for a new land lease/purchase. The requiring office shall provide the EDDA, EA or FONSI. "Master" leases should be utilized for land lease renewals and new land leases of on-airport properties whenever possible. Master leases consolidate separate land leases into one document, and can significantly reduce the administrative work of the Real Estate Contracting Officer and airport officials. A Memorandum of Agreement (MOA) may be used only for on-airport, no-cost land sites. As with master leases, the use of an MOA is a regional decision. An MOA must contain the same clauses as a lease agreement, use standard lease numbers, and contain the acreage for each individual parcel leased. MOAs differ from master leases in that they use the current Airport Layout Plan (ALP) as the basis for identifying asset locations. Only the signed ALP "of record" is acceptable for use. The FAA sites covered under the MOA must be individually highlighted on the ALP. The sites highlighted must correspond to a listing that is made a part of the MOA, either as an appendix or an attachment. When a new ALP is introduced to the lease file, the existing ALP will not be discarded. Each ALP that is used as the basis for an MOA is required to be maintained in the lease file indefinitely. The listing must contain, as a minimum, each facility highlighted/number (that corresponds to the ALP highlighted/number), the facility contraction, GSA number, acreage, and appropriate comments. Additionally all mandatory data must be completed in the Real Estate Management System (REMS). As a minimum, every three years, the ALP will be reviewed with the appropriate Airways Facility (AF) staff (or its equivalent) to determine that the information relating to leased locations is correct. (Added 07/2004)The Real Estate Contracting Officer makes the determination of the appropriate method of procurement to be used to satisfy the requirement, either competitive or single source. A preliminary assessment of potential available sources may be needed to assist in the determination of the procurement method. 6.Procurement Method The single source method of procurement is appropriate when technical requirements, business practices, or programmatic needs have determined that specific location, site, or unique need is required to meet the FAA. s mission, or when it has been determined that only one source is reasonably available that can meet the requirement. Competition is appropriate when the requirement is not site or location specific and the reasonable possibility exists that there is more than one provider that can meet the FAA. s needs. Competition should be utilized whenever practical and reasonable. Competition is obtained by providing two or more sources an opportunity to express an interest in satisfying the requirement. Advertising is not required. Interest may be expressed either orally or in writing.
If the requirement is not for a site specific location and multiple sources may be available to meet the requirement, then advertising to allow for competition may be appropriate. When advertising the Real Estate Contracting Officer should utilize the publicizing method most likely to result in receipt of offers appropriate to satisfy the specific requirement. Advertisements in most cases will be by local or area wide newspapers; however, this is not limited and may include commercial trade journals, electronic bulletin boards, and the Commerce Business Daily. Multiple advertising may be utilized if considered necessary. The Real Estate Contracting Officer determines need or requirement for advertising. Data from a market survey may be used to determine the need for advertising. 8. Right Of Entry The Real Estate Contracting Officer should ensure that a "right of entry" permit to the property for any purpose has been obtained from the land owner prior to ingress by an FAA employee or any of it's agents. Legal counsel should be consulted for the proper action to take if the landowner refuses to grant a "right of entry" permit. Entry onto private property without appropriate rights may constitute trespass. 9. Survey / Title / Appraisers Competition for obtaining the services of surveyors, appraisers, or title companies, is not required, however, obtaining competition for providing these services is encouraged as a sound business practice and should result in award of a contract at the most reasonable cost. Ranking of surveyors as required by the Brooks Act, does not apply to the FAA. 10. Market Survey / Appraisal A market survey or appraisal should be accomplished for each land procurement where costs are involved. Market survey data can be used to: determine the availability of properties within the delineated area; eliminating unsatisfactory properties from consideration; determining the willingness of landowners to provide property for the FAA. s use; determining fair market rents; determining suitability of responses to advertisements; and, determining estimated cost for the purchase of property. An appraisal is a formal written statement that a qualified appraiser prepares independently and impartially, giving an opinion, as of a specified date, of the defined value of a described parcel of real property, supported by the presentation and analysis of relevant market information. An appraisal is used to determine the fair market rent, and value or just compensation for purchase of a specific property. 10a. Market Survey Market surveys can be conducted by telephone, mail, on-site visits, or a combination of methods. The survey can be informal - just data gathering, or formal - where a request for written data is made. When determining estimated market values, data should be obtained from a minimum of three sources. Sources may include, but not limited to: local real estate offices; other lessees, city/county/parish/township assessors; local appraisers; and, governmental offices dealing with land such as the Soil Conservation Service, Bureau of Land Management, and Forest Service. Market survey data should be recorded and retained in the land procurement files. 10b. Appraisal The following is offered as guidance on the need for or use of appraisals:
The Real Estate Contracting Officer shall determine the appropriate type of appraisal method to be used. The following information should be given, or made available, to the appraiser for consideration or inclusion in the appraisal:
For the purchase of real property the appraisal should include a before and after valuation of the property to determine the value of any severance damage. 11. Lease versus Purchase Analysis Except as noted below, a lease versus purchase analysis should be made for all new land interests to be acquired and existing land leases to be renewed, taking into consideration the expected term the property will be needed. The analysis is used to determine the most cost-effective method of procurement - purchase or lease. Data from a market survey or appraisal should be used for input into the analysis. If the analysis shows purchase to be the most effective method of procurement, the Real Estate Contracting Officer should initiate land purchase action in accordance with established procedures. If cost is not a determining factor, such as when a landowner is unwilling to allow FAA use of the property or demands unreasonable lease terms, and eminent domain proceedings are needed, a lease versus purchase analysis is not required. 12. Term Of Lease As provided in 49 U.S.C., Section 40110 (b)(2)(A) the FAA has authority to lease an interest in real property for not more than 20 years, without regard to FAA annual appropriations. This means the FAA has authority to enter into "firm-term" leases without violating the Antideficiency Act. FAA authority to lease real property does not allow lease terms in excess of 20 years, including all renewal options. For purposes of this guidance a firm-term lease is defined as the period or length of time the lease or portion thereof cannot be canceled without the approval of the lessor. Each region/center will determine when and how this authority will be used within the limitations set forth below. In using this firm-term authority, FAA Order 2220.1, Legal Participation in Procurement and Contracting, or its replacement order, must be followed. Caution must be exercised in implementing firm-term lease authority. A firm-term lease commits the FAA to future rental payments. The FAA must be willing to commit future annual appropriations for the term of occupancy. If funding is not committed the FAA would be in default of the lease and subject to claims by the lessor. Funding is the responsibility of the using organization and must be understood up front. The cost or terms of the longer firm-term lease must be advantageous to the FAA as compared to a one-year lease with renewal options. Prior to executing a firm-term lease the real estate acquisition team should advise and provide the organization responsible for funding with an analysis of potential lease costs and/or savings. Also prior to executing the lease the real estate acquisition team should obtain a written statement that acknowledges the terms and funding requirements of the firm term lease, including future budget year requirements. This written funding statement will be maintained in the real estate lease file. A firm-term lease shall not be entered into if, in the judgment of the real estate contracting officer (CO), there is any doubt about the long term need of the user. The objective in leasing a facility is to obtain what is best not only for the user but also for the FAA. In some cases obtaining the lowest cost is not always the best, even though it is an important consideration. There is no requirement to use firm-term authority. Firm-term leases are a tool in obtaining what is best for the FAA. If firm-term authority is used, the manner in which contract documents are written must be consistent. In establishing that consistency Regions/Centers should consider establishing, at least for some interim period, an appropriate level of firm-term lease review above the real estate CO. 12a. Firm-term authority for land leases only: Regions/Centers: 1-20 Years Firm-term Unlimited. Leases not exceeding 20 years including all renewal periods. Unless a firm-term lease is clearly advantageous to the FAA, suggest the "TERM" clause in the standard land lease that provides for 30 day termination by the Government be used. However, all FAA leasing actions in Headquarters organizations in Washington D.C. must be coordinated through the Real Estate Policy Branch (ASU-140), in order insure all relevant planning and policy issues are taken into consideration prior to using this authority. All requests shall be sent through channels to the attention of the Real Estate Policy Branch (ASU-140). 12b. Other Lease Considerations: To provide some protection to the FAA the lease should include a clause allowing the FAA to sublease the premises in whole or in part. 13. Evaluation / Negotiation Based on the results of market surveys or appraisals the Real Estate Contracting Officer should negotiate with property owners to obtain the necessary land interests at a fair and reasonable cost. Costs of any improvements to the real property to be included in the procurement should be evaluated to ensure they are reasonable. When using the competitive method of procurement, all offers received should be evaluated to ensure they can satisfy the FAA. s needs. The total cost to the FAA should be a consideration in making the final selection. In addition to land costs, items such as the following should be considered for each site: site preparation costs, costs for construction of access roads, special maintenance considerations, environmental considerations, and utility service availability and cost. If multiple offers are received and a competitive range is established, any offer falling within this range may be selected for final negotiation without further consideration of selection factors. Purchase or lease costs should be comparable to costs charged to the general market. The value of the Government's enhancements, or intended use should not be used in determining the procurement or lease cost of the real property. When appropriate, environmental cleanup costs for existing conditions should be considered in the negotiations. If environmental contamination is found, the requesting office should state in writing that they request continuation of the procurement. All reasonable efforts should be made to conclude negotiations to the satisfaction of the concerned parties. Determining when to cease negotiations with landowners who demand unreasonable fees or are unwilling to allow the FAA. s use of their property is at the discretion of the Real Estate Contracting Officer. Eminent domain proceedings, in accordance with established procedures, should be initiated when negotiations have reached an impasse and a satisfactory conclusion to the procurement cannot be reached. Protracted negotiations are generally not in the best interests of either party. 14. Contract Execution The Real Estate Contracting Officer will make any necessary changes or additions to the contract based on negotiations with the landowner. Legal review is recommended where deviation from standard clauses is made in a contract. Legal review is required on purchase contracts and legal counsel shall provide an opinion of title. The Department of Justice rules on condemnation and title requirements must be followed Lease documents should not state the specific type of facility to be placed on the premises. Stating the specific use (i.e. RCAG site and Access Road) could limit what type of facility the FAA is legally allowed to install on the premises throughout the term of the lease. The Prompt Payment Act does not apply to the FAA however, the FAA should make payments within 30 days after acceptance or as provided in the contract. As determined by the Real Estate Contracting Officer, the FAA may apply late payment interest to payments made within the scope of real property contracting actions. The Government is to make all payments through the use of EFT (P.L. 104-134). See Section D., Real Estate Asset Management, for guidance. The Real Estate Contracting Officer shall send an appropriate number of contracts to the property owner for signature and return for final execution. All off-airport leases and purchase documents (deeds) shall be recorded in the appropriate County/Parish/Township office. 15. Documentation Sufficient documentation should be developed that explains and justifies the procurement action taken. These documents should be retained in the applicable real estate procurement file as appropriate:
16. Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970.
Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, as amended (49 CFR Part 24). (www.fhwa.dot.gov/realestate/49cfr.htm)
and This
Act was intended to establish a uniform policy for the fair and
equitable treatment of persons who are displaced as a direct result of
programs or projects that are undertaken by a Federal agency or with Federal financial assistance. The ACT ensures that displaced persons shall not suffer
disproportionate injuries as the result of programs and projects
designed for the benefit of the public as a whole and minimizes the
hardship of displacement on such persons.
The ACT also establishes minimum Real Property Acquisition Policies for
appraisal, negotiation and property possession standards and
requirements. The
Uniform Act applies to any Federal or federally assisted program or
project if Federal funding is used in any
phase of the program or project.
Provisions of the
Uniform Act are mandatory and are applicable to each Federal agency
that administers programs or provides financial assistance for
projects, which involve land acquisition or relocation assistance. The
Uniform Relocation Act of 1970 was enacted January 2, l971 and amended
by: the 1987 Uniform Act Amendments, 1991 Public Law 102-240 and the
Nov 1997 Public Law 105-17. The Final Rule on the 1997 amendments was
published in the February 12, l999 Federal Register (Volume 64, Number
29, pages 7127-7133),
http://www.fhwa.dot.gov/realestate/UAfnl99.htm.
This final rule provides that “an alien not lawfully present
in the United States shall not be eligible to receive relocation
payments or any other assistance provided under the Uniform Act unless
such ineligibility would result in exceptional and extremely unusual
hardship to the alien’s spouse, parent, or child and such spouse,
parent, or child is a citizen or an alien admitted for permanent
residence”. The final
rule requires that persons seeking relocation payments or assistance
under the Uniform Act certify, as a condition of eligibility, that
they are citizens or are otherwise lawfully present in the United
States. The format of the
certification is left up to each Agency.
The certifications may be for individuals or a family [in which
case the head of household may certify as to the status of other
family members (see section 24.208(a)(2))].
FHWA has determined that the final rule applies to businesses
as well as individuals and believes the prohibition on benefits must
be applied differently to differing “ownership” situations, such
as: a sole proprietorship, a partnership or a corporation.
Any payments that a business is eligible to receive should be
reduced by a percentage based on the prorated shares of the ownership
between eligible and ineligible owners.
The following web site lists immigration offices you may need
to contact if you chose to verify self certified immigration
information: http://www.ins.usdoj.gov/natz/statemap.htm
The
Uniform Act designates the Department of Transportation (The
Department) as the lead agency for implementing the Uniform Act.
The Department has delegated this responsibility to the Federal
Highway Administration (FHWA) [49 CFR 1.48(cc)].
Pursuant to section 213 of the Uniform Act, the FHWA
promulgated a single government–wide regulation for implementing the
Uniform Act, at 49 CFR Part 24 (
WWW.FHWA.DOT.GOV/REALESTATE/49cfr.htm).
Note that as of 6/30/1999 the final rule has not yet been
incorporated into 49 CFR Part 24; therefore, to obtain text of the
final rule go to: http://www.fhwa.dot.gov/realestate/UAfnl99.htm
·
Your
Rights and Benefits as a Displaced Person Under the Federal Relocation
Assistance Program
– Publication No. FHWA-PD-95-010 ·
Acquiring
Real Property for Federal and Federal-Aid Programs and Projects
– Publication No. FHWA-PD-92-006
HRW-11/5-92(20M)E ·
The
Appraisal Guide –
Publication No. FHWA-PD-93-032 HRW-22/9-93(15M)P
17. Prescriptions for Real Estate Clauses: (Added 05/2000) A. "Hazardous Substance Contamination" – A land lease for "on airport" technical facilities may not be executed unless a Phase One EDDA is performed in accordance with FAA Order 1050.19 or the land lease contains the Hazardous Substance Contamination clause. If a Phase One Environmental Due Diligence Audit
(EDDA) is not performed, this clause shall be inserted in all new land leases and renewal land leases for "on airport" technical facilities. Leases in effect as of the date of this change are not required to be modified, that is to replace the reference to "Government facilities" with a list of each "type of facility". However, when an existing land lease for an "on airport" facility is modified/amended, this clause shall be updated to reflect the "type of facility" on the property. When applicable state law or federal law in the relevant district or circuit courts is such that this clause, as drafted, is unacceptable to the airport sponsor or ineffective to fulfill the intent of the clause, it may be modified, as appropriate, with written concurrence of AGC 600 or Regional Counsel as long as the original intent of the clause is maintained. If agreement on the clause cannot be reached, a Phase One EDDA can be preformed in lieu of having the clause in the lease. |
