Accommodating Federal Agencies at Airports and Related Contractual Concerns (2025)
Chapter: III. GENERAL SERVICES ADMINISTRATION OVERVIEW
specific parcels rather than the entire airport. Chapter 22 of the Airport Compliance Manual describes this release process in more detail.
Advisory Circular 150/5150-2C Federal Surplus Personal Property Program for Public Airport Purposes, 2012
This AC addresses federal surplus personal property, not real property, so the report will provide a brief overview of this AC, but will not provide detailed analysis.12 While not stated in ACO 5150.2A, this AC appears to replace the instructions provided in that 1972 AC regarding federal surplus personal property, so airport sponsors looking for guidance on personal property should reference this 2012 AC rather than the 1972 ACO.
AC 150/5150-2C contains the procedures for airport sponsors interested in requesting and receiving surplus personal property from the federal government—it includes instruction on applying for screener credentials and use of the GSAXcess system administered by GSA. The intended audience is airport sponsors who monitor and manage the day-to-day operation of the airport. Similar obligations attach to federal surplus personal property as those for federal surplus real property: donated personal property should not be disposed of without FAA consent, and should an airport not comply with its obligations regarding the use of the personal property, the property may revert to the United States, at the option of the federal government. In short, donated property, even personal, can come with strings attached, and airport sponsors should be familiar with any conditions and “strings” for the donated personal property to ensure compliance with donation documents and authorizing legislation.
Order 5190.6B Change 3, Airport Compliance Manual, September 15, 2023
The Airport Compliance Manual provides guidance to FAA employees on the implementation of the FAA’s airport compliance program. Under the program, the FAA has the responsibility to assure airport sponsors comply with certain obligations that arise from FAA grant agreements and from deeds of property conveyance for airport use. The Airport Compliance Manual is located on the FAA Office of Airports website where it is available to all interested parties.13 Change 3 of the Order cancels and replaces certain chapters of the Airport Compliance Manual, and more changes are anticipated in the near future. To incorporate any changes and provide the most useful and current program guidance to FAA employees, the Office of Airport Compliance and Management Analysis is undertaking a review of the Order and will publish updates as the chapter reviews are completed. The Airport Compliance Manual is a singular resource for airport sponsors regarding airport compliance matters as it, among other things, analyzes the various obligations set forth in the standard airport sponsor assurances, addresses the application of the assurances in the operation of public-use airports, and facilitates interpretation of the assurances by FAA personnel. While it is not regulatory and is not controlling regarding airport sponsor conduct, it offers a glimpse into how FAA personnel will interpret and apply regulatory requirements for airport sponsors. In addition, it is written in an accessible manner, with references to regulatory requirements where appropriate, and is organized by topic in a way that many airport sponsors find consistent with how issues arise in an airport environment. Many references are made to the Airport Compliance Manual throughout this report in the specific section being discussed, but airport sponsors are encouraged to refer to the Manual directly as well, as updates do occur, and additional information can be found in the Manual.
Airport Traffic Control Tower Siting Process, FAA Order 6480.4A
This FAA Order establishes requirements for determining site location, tower height, and cab orientation of Airport Traffic Control Towers (ATCTs), and defines the methods used to complete the siting process for the location of air traffic control towers. The order applies to new and replacement ATCTs, as well as those built by the FAA directly or through the FAA contract tower program where federal funding is provided. Approval of a siting report or location does not imply the approval or the availability of funding for the new or replacement ATCT. This Order does not apply to the siting of temporary or mobile towers, but siting of temporary towers is covered in Order JO 7110.315, Mobile Airport Traffic Control Tower Siting Criteria. This Order will not be analyzed in this report as it addresses temporary conditions.
The majority of this Order focuses on more technical considerations for ATCT siting, such as visibility of aircraft operations, height of the site, risk of glare/sunlight, vehicular access, etc. Section 205(a) of the Order does indicate that “consideration shall be given to economic factors when proposing ATCT sites,” but the economic considerations specifically identified are focused on project cost considerations (i.e., land use planning, utilities, security), rather than economic impact (either pro or con) to an airport by use of a particular piece of property. The FAA’s minimal focus on the economic impact to an airport’s commercial use for real property may be why the project team identified several airport master plans that included detailed analyses of potential sites for future ATCTs, with the analyses more focused on the development opportunities (or negative impacts) of the potential ATCT locations.
III. GENERAL SERVICES ADMINISTRATION OVERVIEW
The GSA manages real estate, including leases, for many U.S. government agencies but not all federal properties. The agency has varying responsibilities based on statutory language
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12 AC 150/5150-2C cancelled AC 150/5150-2B (1984), and AC 150/5150-2B states that it cancelled AC 150/5150-2A, dated August 3, 1973, but that appears to be a different advisory circular than AC 5150.2A, dated September 1972, which remains listed as “active” by the FAA.
13 See FAA Airport Compliance Manual—Order 5190.6b, Change 3, Airports, https://www.faa.gov/airports/resources/publications/orders/compliance_5190_6 (last visited Apr. 15, 2024).
and agreements with other federal departments and agencies. Some agencies have their own leasing authority through statute, like the FAA and TSA. These agencies with statutory leasing authority may choose to use the authority on their own, while others voluntarily engage GSA for leasing assistance. Agencies choosing to use GSA for assistance benefit from shifting administrative burdens to the GSA and taking advantage of the real-estate expertise that GSA possesses.
TSA, for example, uses the GSA to help execute and manage airport office space leases. For TSA, voluntarily partnering with GSA reduces resource demands as the agency can off-load certain workload requirements. Of note, the line of delineation between the GSA and TSA is not always clear and can be a cause of confusion. Airport operators face challenges identifying who they should negotiate with and what the negotiations should focus on. An example included in the TSA-specific discussion in Section IV.B illustrates this issue.
A. Overview of GSA Authority and Processes
The GSA has produced multiple guidance documents that address leasehold agreements. The GSA Leasing Desk Guide (LDG) includes a chapter specifically focused on space at airports and management of property. The guidance provides an overview of authorities, processes, and items of concern. The following discussion will cover challenges airports have when operating in compliance with these guidelines, as well as challenges airports face that may arise outside of the guidelines. The section will address whether the airport should negotiate with the particular federal agency directly or with the GSA and how to differentiate what matters and why.
Additionally, the GSA has published regulations and direction related to the management of property. This includes multiple items such as facility management, utilities, historic preservation, and property disposal.
GSA Chapters of Particular Relevance
On-Airport Leasing
LDG Chapter 20, “On-Airport Leasing for TSA and Other Agencies,” discusses the requirement-based noncompetitive leasing environment for federal agencies at U.S. airports. This section covers the basics of airport operating structures and leasing rates, noting that these rates are not comparable to local markets because of the lack of competition. Further, the section notes that airport leases are typically not fully serviced and do not include tenant improvements. The GSA notes perceived difficulties the agency has encountered with airport processes and requirements and concludes that government agencies will need to use multiple exceptions to typical GSA lease provisions when engaging with airports.14 GSA notes that leasing specialists have some discretion in negotiating terms to accommodate airport leasing and service approaches. But leasing specialists cannot make an exception to federal law or regulations.15
Floodplain
Chapter 20 discusses GSA policy for on-airport lease compliance with Executive Order 11988, Floodplain Management.16 The guidance document states that GSA can use prior airport floodplain determinations and mitigations to meet their documentation requirements. For airports in 100-year floodplains, GSA leasing specialists will need to work with a regional environmental health and safety advisor to complete a floodplain assessment. The advisor will request that airport operators provide documentation of floodplain analysis activities and airport-implemented mitigation measures. Further, the advisor will provide the GSA leasing specialist a no acceptable alternative notice that the leasing specialist will post on or adjacent to the agency’s leased space.17
Management of leases at airports within 500-year floodplain areas will require GSA to take different approaches for TSA and other agencies. In 2005, the GSA requested that TSA’s Real Estate Services sign a letter stating TSA believes their uses of on-airport spaces are noncritical actions as defined by the GSA Floodplain Management Desk Guide. By signing the letter, TSA acknowledged their on-airport work in leased spaces is not a critical action and therefore a floodplain analysis as required by Executive Order 11988 is not required. GSA should include this letter in the lease file.18 For other agencies, GSA will confirm that they are not involved in any “critical actions.”
Construction
GSA’s LDG guidance document notes that the federal government may have to comply with airport rules and processes for design and construction projects. GSA recommends that federal representatives be aware of requirements and processes, and for federal points of contact to build relationships with airport stakeholders to address these issues early on.
Airport operators may want to consider early how they want to manage design and construction requests from federal partners. Further, as noted in the TSA example earlier, airports need to understand the authority of the agency contact they are negotiating with. The airport should make sure a binding agreement with the government agency is signed before beginning construction to ensure both parties understand the expectations of the project.
Unusual or Compelling Urgency—Non-FEMA
Chapter 23 of the LDG covers “Lease Acquisitions Using Unusual and Compelling Urgency.” This chapter provides guidance relating to policies and regulations impacting leasing actions performed using the authority under 41 U.S.C. § 3304(a)(2)
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14 GENERAL SERVICES ADMINISTRATION, LEASING DESK GUIDE ch. 20, https://www.gsa.gov/real-estate/real-estate-services/leasing/leasing-policy (last visited Apr. 15, 2024) [hereinafter GSA LDG].
15 Id. at 20-4 § 3(e).
16 Executive Order 11988, Floodplain Management, 42 Fed. Reg. 26951 (May 24, 1977).
17 GSA LDG, supra note 14, at 20-3.
18 Id.
as implemented by the Federal Acquisition Regulation (FAR) 6.302-2 and commonly known as Unusual and Compelling Urgency. These types of lease acquisitions occur in an accelerated timeframe necessary to respond to an event or critical government need that cannot be met while providing full and open competition procedures. This chapter specifically excludes leasing space for FEMA following a declaration of disaster under the Robert T. Stafford Act and pursuant to a memorandum of agreement between GSA and FEMA. Chapter 12 of the LDG provides guidance related to FEMA leasing.
Importantly for airport sponsors, this chapter does not establish any requirements that are applicable to the lessor; in other words, the chapter provides guidance and flexibility from established GSA processes and requirements regarding a lease for the federal agency in need of space. There are no requirements and no mention of any authority for requirements applicable to the entity leasing space to the federal agency. While the need of a federal agency for space may be a practical consideration for an airport sponsor who is considering leasing space to the federal agency, the airport sponsor should be aware that an emergency on behalf of the federal agency does not create any additional obligations on behalf of the airport sponsor.
This chapter provides helpful lease negotiation insights for airport sponsors. Under typical GSA leases, federal agencies have little flexibility in the requirements of the leased space. For example, the type of carpet, available storage space, number and placement of windows, power supply location, length of lease term, etc., are all defined requirements under GSA leases. For a federal agency facing an “unusual and compelling” need for space, there is often more flexibility regarding these requirements, so space that may not previously have fit within the GSA requirements may be perfectly acceptable given the circumstances. Additionally, since many of these lease term lengths will be significantly shorter in duration, this is also an opportunity for an airport sponsor to fill a vacant space on a short-term basis while it identifies the desired long-term tenant.19
Unusual or Compelling Urgency—FEMA
GSA has provided FEMA-specific guidance in the LDG Chapter 12 because of the multiple FEMA-specific specialized types of lease acquisitions. After the President declares a disaster, FEMA and the GSA establish a memorandum of agreement under FEMA’s National Response Framework to include leasing support. GSA will assign a leasing contracting officer (LCO) who has broad authority to negotiate on FEMA’s behalf and use exemptions where typical government leasing standards cannot be met.20
Following are components of the FEMA unusual or compelling lease elements: FEMA Supplemental Lease Requirements; GSA Form 3517A or 3517B; floor plan and parking plan or other means of identifying leased premise; and additional terms.
An airport discussed with the project team their experiences leasing space to FEMA after two Presidential declarations of disasters. The airport noted that both leases were quickly negotiated and executed based on GSA terms. The LCO quickly accepted their requested rate. When FEMA returned after the second disaster declaration the airport raised some concerns with how the space was used. The LCO and airport agreed upon modified terms and GSA changed its usage of the area.
Finally, where space is provided to FEMA at no cost, such as pursuant to a triggering of the National Emergency Use Provision discussed in more detail in Section III.B of this report, FEMA will use a license use agreement (LUA). FEMA executes these LUAs without the assistance of GSA.21
B. National Emergency Use Provision
Practically all WAA and GSA conveyance instruments transferring ownership of surplus real and airport-related personal property to airport sponsors for public use airport purposes contain the NEUP. This provision retains the right of the United States to make exclusive or joint use of the airport, or any portion thereof, during a war or national emergency. This has happened several times since World War II, particularly after the United States’ involvement in the Korean War began in 1951. Two examples of airports that were reactivated are Sanford, Florida, and Brown Field, California. However, while the authorizing statutes require this provision to be included in all such conveyance instruments, it has been discovered that the NEUP was omitted from a few conveyance instruments issued by WAA and GSA. In addition, it appears that AC 5150.2A, discussed in more detail earlier, contemplated at least at one time that an airport sponsor could request that a NEUP be omitted from the conveyance document, so the omission may also have been intentional. Airport sponsors should review relevant conveyance documents to determine their responsibilities pursuant to NEUP.
While conveyance documents reserve to the federal government the right of exclusive possession and control of the airport during war or national emergency, grant agreements do not contain any provision authorizing military agencies to take control of the airport during a national emergency. In section 7.17 of the Airport Compliance Manual, FAA staff is informed that negotiations regarding use of property, facilities, and any potential reimbursement for those uses under war or national emergency clauses will be between the agency requiring the airport and the sponsor, and that the only compliance responsibility the FAA has regarding such clauses is releasing the property from its federal obligations. Based on of the absence of additional direction in the Manual regarding the potential conflict between a federal agency’s use of an airport or its facilities pursuant to a NEUP
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19 Depending upon the type of procurement process utilized under this chapter, the term of the lease may be limited to one year, unless the Head of Contracting Activity determines that exceptional circumstances require a longer term. Leases awarded using Unusual and Compelling Urgency with a term over five years require approval from the Public Building Services Deputy Commissioner. GSA LDG, supra note 14, at 23-7.
20 Id. at ch. 12.
21 Id. at 11-2.
