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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Rules and Regulations
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entering into a lease agreement with a covered entity for the accommodation of a Federal tenant in a high-security leased space.
The plan must require the disclosure of any immediate, highest-level, or beneficial owner that is a foreign person and notification by the Federal lessee of high-security space to the affected Federal tenant of such foreign ownership. The plan, however, must exclude collecting ownership information on widely held pooledinvestment vehicles, mutual funds, trusts, or other pooled-investment vehicles. The Act requires GSA to submit the plan to specific Congressional committees by Dec. 31, 2021 and to implement the plan by Dec.
31, 2022. This plan will be separately addressed in a future rule, and is not included in this interim rule.
Unlike the direct control-based immediate owner and highest-level owner, the Act defines the term beneficial owner to include any person thatthrough a contract, arrangement, understanding, relationship, or otherwiseexercises control over the covered entity or has a substantial interest in or receives substantial economic benefits from the assets of the covered entity, with some exceptions. GSA and OMBs plan must require the Federal lessee to collect the foreign ownership information for any immediate, highest-level, or beneficial owner that is a foreign person and, upon such a disclosure of foreign ownership, to notify and consult with the Federal tenant.
Implications of the Act and Related Rulemakings This Act is one of several recent examples of congressional concern about foreign ownership and control and congressional action in the world of government contracting to help address potential national security concerns.
See, e.g., FY 2021 NDAA Pub. L. 116
283, 819, Modifications to Mitigating Risks Related to Foreign Ownership, Control, or Influence of DOD
Contractors and Subcontractors; 885, Disclosure of Beneficial Owners in Database for Federal Agency Contract and Grant Officers; 6403, Beneficial Ownership Information Reporting Requirements.
Covered entities already provide certain information on immediate and highest-level ownership through the System for Award Management registration process, per OMB Control Numbers 90000097 and 90000185.
However, covered entities will need to provide additional information through a manual representation regarding any
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financing entities and foreign ownership details for the enhanced requirements per Section 3 of the Act. Additionally, subject to the development and implementation of GSAs governmentwide plan for Section 4 of the Act, through separate rulemaking, covered entities will need to provide disclosure of creditors who may be deemed beneficial owners if they either exercise control over the covered entity or have a substantial interest in or receive substantial economic benefits from the covered entitys assets. Therefore, property owners will need to take this provision into account when considering financing options for leasing high-security space to the Federal government.
II. Requirements Contained in This Rulemaking and Related Rulemakings With this rule, GSA is implementing Section 3 and Section 5 of the Act.
Section 3
Requires Federal lessees for highsecurity leased space to require covered entities to identify and disclose whether the 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, before entering into a lease agreement. Covered entities must provide Federal lessees such information when first submitting proposals in response to a solicitation for offers issued by the lessee; and annually, to include the list of immediate or highest level owners of the covered entity during the preceding one-year period of occupancy.
Requires the Federal lessee to notify the Federal tenant in writing if such a disclosure of foreign ownership is made and consult with the tenant regarding any security concerns prior to awarding a new lease agreement.
Section 5
Requires that leases for highsecurity space include certain language regarding access to the high-security leased space by the covered entity and any member of the property management company.
Section 4 of the Act requires the identification of beneficial owners of high-security leased spaces and will be addressed in a subsequent rulemaking through GSAR Case 2021G522 and FMR Case 20211021. In addition, the FAR Council has opened FAR Case 2021005 which will implement sections 885 and 6403 of the NDAA for FY 2021 Pub. L. 116283 to require certain offerors to disclose beneficial
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ownership information in their offers for contracts over the simplified acquisition threshold.
Finally, other agencies may need to do additional rulemaking because the GSAR only governs the contract terms and conditions for leased space procured by GSA and its delegated agencies.
III. Authority for This Rulemaking Title 40 of the United States Code U.S.C. Section 121 authorizes GSA to issue regulations, including in the GSAR, to control the relationship between GSA and contractors. In addition, the Secure Federal LEASEs Act, authorizes the collection of ownership information for high-security leased space.
IV. New GSAR Requirements With this rule, GSA is implementing one new GSAR representation and one new GSAR clause. The new representation is 552.27033 Foreign Ownership and Financing Representation for High-Security Leased Space and the new clause is 552.270
34 Access to Limitations for HighSecurity Leased Space. Both apply to new lease awards, the exercise of options for current leases, lease extensions, and ownership changes for high-security leased space. Except where otherwise provided, the Acts disclosure requirements shall apply with respect to any lease or novation agreement entered into on or after June 30, 2021, involving high-security leased space. That includes new, renewal, succeeding, expansion, superseding, extension, and replacing leases and novations.
The new GSAR representation implemented in 552.27033 requires offerors for high-security leased space to identify whether the immediate owner, highest-level owner, or an entity involved in the financing of the lease is foreign-owned. If so, they must represent the associated country.
Awardees will also be required to rerepresent on an annual basis. This representation also applies upon extensions, exercise of renewal options and change of ownership/novations.
The new GSAR clause at 552.27034
requires lessors for high-security leased space to limit access to the space unless approved by an authorized Government representative.
V. Expected Impact of the Rule GSA anticipates that this rule will have an impact on current Federal lessors of high-security leased space, future potential lessors of high-security leased space, and the Federal lessor
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