Non-Lease Agreements

TABLE OF CONTENTS

OVERVIEW

5.1 What is the purpose of this chapter? This chapter explains how the U.S. Fish and Wildlife Service (Service) space management policy intersects with non-lease agreements that include space as an incidental component. Agreements with space as an incidental component must only be for a cooperative purpose, must not be for the sole objective of providing or occupying space, and the Service cannot charge or be charged rent.

5.2 What is the scope of this chapter? 

A. This chapter applies to all Service employees who are involved in non-lease agreements. The various types of non-lease agreements are also covered by other chapters, including:

(1) Reimbursable agreements (see 264 FW 2, Reimbursable Agreements - Policies and Procedures);

(2) Interagency Agreements (IAA) and Intra-Department of the Interior (Department) agreements (IDA). See 260 FW 10, Interagency and Intra-Departmental Agreements Where the Service Is the Buyer;

(3) Federal procurement and Federal assistance agreements, i.e., contracts, grants, and cooperative agreements (see Part 301, Acquisition Policies and Procedures, and Parts 515 – 517, Federal Financial Assistance);  

(4) Memorandums of Understanding (MOU) or other agreements where the Service does not transfer funds or property (see Part 301, Acquisition Policies and Procedures);

(5) GSA reimbursable work authorizations and U.S. Department of Homeland Security work authorizations that use miscellaneous obligations (MO) (see 260 FW 9, Appropriate Uses of Miscellaneous Obligations); and

(6) Friends partnership agreements (see Part 633, Friends Organizations).

 B. This chapter does not apply to General Services Administration (GSA)-provided Occupancy Agreements (OA).

5.3 What are the authorities for this chapter? See 370 FW 1 for a list of authorities for all the chapters in Part 370.

NON-LEASE AGREEMENTS

5.4 What are the general requirements and restrictions for space use in an agreement?

A. We may only occupy space with proper authorization, documented either through a leasehold (GSA-provided or direct lease) or non-lease agreement.

B. We must not allow another entity to occupy Service-owned or leased space without proper authorization through a non-lease agreement. 

(1) The term “outleasing” is sometimes incorrectly used when other Federal agencies use our space under a non-lease agreement.

(2) Outleasing, which is not allowed, is when excess or unneeded Service-owned or leased space is leased or sub-leased to private businesses or other non-Federal entities. 

C. GSA has lead authority and responsibility within the Federal Government for leasing space to meet the needs of civilian agencies. When there is an opportunity for another Federal agency to use our space that is provided through a GSA OA, GSA should provide the other agency with their own OA and charge rent directly.

5.5 What are non-lease agreements with space as a component?

A. The Service uses a variety of agreement types to conduct business with non-commercial entities, including other Federal agencies; Tribal, State, or municipal governments; and partners such as non-governmental organizations and universities. For reimbursable agreements, many of the authorities are identified in 264 FW 1, Exhibit 1. Consult the Service’s Financial Assistance program for cooperative agreement authorities. 

(1) When there is an agreement to work together toward a common goal, the Service may include in the agreement providing space to perform the work only when meeting the requirements and limitations in this policy. 

(2) For the purposes of this policy, “non-lease agreement” means an authorized reimbursable, IAA, IDA, or cooperative agreement under which use of space is an incidental component of the agreement. Incidental use of space is ancillary to the primary cooperative purpose of a non-lease agreement.

(3) These agreements are not replacements for space rental, must not waive lease procurement competition requirements, and must not serve as replacements for internal Service space sharing agreements.

B. The non-lease agreement must only be for a cooperative purpose and not for the purpose of providing space. Funds exchanged are for project costs only. The Service must not charge, nor be charged, cost-per-square-foot rent for the use of the space in a non-lease agreement. In GSA-provided space, subleasing is not permitted as it is considered an unauthorized augmentation of appropriation.

C. When facilities-related services (not rent) are provided through a non-lease agreement, the indirect cost recovery rate for reimbursable agreements traditionally covers these costs when applied to the entire agreement. These services include such things as operations and maintenance expenses, administrative support, office supplies, and shared services contracts that provide janitorial, utilities, internet, and snow removal services, etc. Services may be recovered as itemized direct costs if a larger agreement is not in place.

D. Friends partnership agreements for using Service-owned space must describe how the organization will use the space. We may provide space for Friends organizations to help with organizing and hosting meetings, and to set up and operate nature stores. Conducting lobbying activities on Federal property is prohibited. (See Part 633 of the Service Manual for more on Friends organizations.)

5.6 What are the common types of non-lease agreements the Service uses? We may use the following types of non-lease agreements when authorized by statute or when policy allows it. The agreement is a funds-obligating document that incidentally includes space as a component.

A. Reimbursable agreement,

B. IAA,

C. IDA,

D. Cooperative agreement, and

E. MOU.

(1) We use an MOU when there is no exchange of funds between the Service and external entities. Each party is responsible for contributing its own efforts and resources (“in-kind contributions”).

(2) We may use an MOU to document internal Service space sharing arrangements for exchange of funds via journal voucher.

5.7 How does the Service include space in non-lease agreements? 

A. A description of the agreement between the parties should describe any incidental use of space. The description may be in the form of a project narrative, statement of work, or memorandum.

B. The use of space should be limited in size and scope, provided temporarily only to facilitate collaboration between the parties, and follow space management best practices.

C. We must include an exit strategy in the non-lease agreement to prevent an emergency leasing action at the conclusion of the agreement.

D. Non-lease agreements must not provide access to Service space that could be a physical or cyber security risk. Prior to being allowed access into the facility, all individuals must meet applicable security and background checks.

E. Non-lease agreements must not afford an unfair advantage to any private group or interest, nor permit the partner access to Service space that perpetuates the perception of unequal access for other partners. We must consider and avoid conflict of interest or perceived conflict of interest in situations when organizations who use or plan to use Service space are applying for financial assistance where the Service’s decision-making official resides in the same space. We urge programs to seek guidance from their servicing Ethics Counselor.

F. Friends organizations and volunteers must follow 633 FW 1, Working with Friends Organizations, and Part 150, Volunteer Services Program, for policies and guidelines on the use of Government-provided space.

G. Non-lease agreements must not be used to waive the requirement for competition in contracting for lease procurement. This should be a special consideration when universities seek to provide space to the Service for a profit or when there is no cooperative purpose.

H. We commonly use Service First authority for non-lease agreements with the U.S. Department of Agriculture (USDA). When there is a space component, agencies may collocate in Federal offices and facilities leased by either agency. The Service First authority does not extend to collocations for IDAs without USDA.

I. Otherwise-managed real property must be reported to GSA. Per GSA’s 2023 Federal Real Property Profile (FRPP) Data Dictionary, “otherwise-managed properties” are properties where a U.S. State, city, county, town, or other municipal government; Tribe or other Native organization; foreign government; trust; or U.S. territory holds title to the real property, but rights for use have been granted to a Federal Government entity in an arrangement other than a leasehold.

(1) For otherwise-managed real property, the Federal agency that entered into the agreement on behalf of the U.S. Government is responsible for reporting the asset to FRPP. 

(2) When an agreement is between the Service and one or more Federal agencies, the owning agency must report the asset data to FRPP and describe this responsibility in the agreement to prevent duplicate reporting.

(3) When it is the Service’s responsibility to report asset data, we do this reporting through an annual data transfer from the Financial Business Management System (FBMS).

J. When Service programs share Service-owned or leased space, they may use a letter or memorandum to document the use of space. The host program may charge other Service programs for use of space at an agreed-upon rate to reimburse the host for expenses. A best practice is to capture the agreed-upon conditions in a written document that is then attached to the journal voucher payment.

SPACE MANAGEMENT IN NON-LEASE AGREEMENTS

5.8 How does the Service approve and manage non-lease agreements? Programs negotiate, document, seek approvals, and manage the agreements as we describe in 260 FW 10.

5.9 How does the Service manage space that is included in non-lease agreements?

A. Space Leasing Specialists may advise programs on space management standards and best practices; however, the program manages the day-to-day operations of the space, reporting, and data management.

B. Programs must consult with Space Leasing Specialists when they are considering replacing leased space with space provided by a non-lease agreement (see 370 FW 3).