1.This Act may be cited as the
Department of Veterans Affairs Acquisition Improvement Act
of 2009
.
2.Assistant
Secretary of Veterans Affairs for Acquisition, Construction, and Asset
Management; additional Deputy Assistant Secretaries
(a)Section 308 of title
38, United States Code, is amended—
(1)in subsection (b),
by adding at the end the following new paragraph:
(12)Acquisition,
Construction, and Asset Management.
;
and
(2)in subsection
(d)—
(A)in paragraph (1),
by striking 19
and inserting 26
; and
(B)by inserting at
the end the following new paragraph:
(3)The Secretary shall assign one Deputy
Assistant Secretary to each of the following areas of responsibility:
(A)Information technology
acquisition.
(B)Acquisition services for the Veterans
Benefits Administration, the National Cemetery Administration, and the
Department headquarters.
(C)Construction acquisitions and
leasing.
(D)Acquisition services for the Veterans
Health Administration.
(E)National contracts, including
contracts for health care products and services awarded by the National
Acquisition Center (other than contracts for information technology).
(F)Policy.
(G)Asset Enterprise Management and
Logistics.
.
(b)Deadline for
appointmentsBy not later
than one year after the date of the enactment of this Act, the Secretary of
Veterans Affairs shall assign an individual to carry out the responsibilities
of the Assistant Secretary for Acquisition, Construction, and Asset Management,
pursuant to paragraph (12) of section 308(b) of title 38, United States Code,
as added by subsection (a), and individuals to carry out the responsibilities
of the Deputy Assistant Secretaries pursuant to section 308(d) of such title,
as amended by subsection (a).
3.Chief Acquisition
Officer
(a)Chapter 3 of title 38, United States Code,
is amended by inserting after section 310 the following new section:
310A.Chief
Acquisition Officer; other acquisition officers
(a)There is in the Department a Chief
Acquisition Officer. The Assistant Secretary for Acquisition, Construction, and
Asset Management shall serve as the Chief Acquisition Officer.
(b)In
addition to the responsibilities of the Chief Acquisition Officer under section
16 of the Office of Federal Procurement Policy Act (41 U.S.C. 414), the Chief
Acquisition Officer shall carry out the following additional
responsibilities:
(1)Managing and
monitoring the performance of Department acquisition activities.
(2)Advising the
Secretary on appropriate business strategies to meet the missions of the
Department.
(3)Awarding and
administering contracts and purchases.
(4)Increasing the use
of full and open competition in the acquisitions processes of the
Department.
(5)Increasing the
appropriate use of performance-based contracting and performance specifications
in such processes.
(6)Ensuring that
acquisitions decisions are consistent with applicable laws.
(7)Managing the
direction of acquisition policy for the Department.
(8)Establishing clear lines of authority,
accountability, and responsibility for decision making within the Department
with respect to acquisitions.
(9)Developing and
maintaining an acquisition career management program.
(c)The
individual appointed as Chief Acquisition Officer shall have the following
qualifications:
(1)Executive
experience in acquisition in the Federal Government—
(A)managing large
projects or having responsibility for managing a corporate-type supply chain
function;
(B)defining and
achieving performance results;
(C)developing,
negotiating, delivering, and managing successful and complex business
arrangements across large organizations with competing interests;
(D)building and
managing executive relationships across organizational and functional
boundaries; and
(E)successfully using
strategic resource management to achieve organizational goals.
(2)Knowledge of the
Federal Acquisition Regulation.
(3)Knowledge of the
Federal budget, appropriations, and legislative processes.
(d)All employees of the Department whose responsibilities
relate to acquisition shall report directly to the Chief Acquisition Officer.
Beginning on the date of the enactment of this section, no new employee may be
hired as a Head of Contracting Authority or Chief Logistics Officer unless the
Principal Deputy Assistant Secretary for Acquisition, Construction, and Asset
Management approves the hire.
(e)Principal Deputy
Assistant Secretary for Acquisition, Construction, and Asset
Management(1)There is in the Department a Principal
Deputy Assistant Secretary for Acquisition, Construction, and Asset Management.
The Principal Deputy Assistance Secretary for Acquisition, Construction, and
Asset Management shall be the senior procurement executive for the Department
and shall report directly to the Chief Acquisition Officer.
(2)The position of Principal Deputy Assistant
Secretary for Acquisition, Construction, and Asset Management shall for all
purposes be considered to be a career reserve position within the meaning of
section 3132(a)(8) of title 5.
(3)The Principal Deputy Assistant Secretary
for Acquisition, Construction, and Asset Management shall have primary
responsibility for the following:
(A)Acquisition policy and
oversight.
(B)Oversight of the Office of the
Business Ombudsman, including the Competition Advocate and the Office of
Business Oversight.
(C)Training, management, and oversight of
the acquisition workforce, including the Acquisition Academy of the
Department.
(D)Management and oversight of the Deputy
Assistant Secretary responsible for awarding and administering contracts and
purchases.
(f)Deputy Assistant
Secretaries for AcquisitionThere are in the Department seven
Deputy Assistant Secretaries for Acquisition who shall report directly to the
Principal Deputy Assistant for Acquisition, Construction, and Asset Management.
The Secretary or the Secretary’s designee shall assign to each Deputy Assistant
Secretary one of the following functions:
(1)Information
technology acquisition.
(2)Acquisition services for the Veterans
Benefits Administration, the National Cemetery Administration and the
Department headquarters.
(3)Construction
acquisition and leasing.
(4)Veterans Health
Administration acquisition.
(5)National
contracts, including contracts for health care products and services awarded by
the National Acquisition Center.
(6)Policy.
(7)Asset enterprise
management and
logistics.
.
(b)The table of sections at the beginning of such chapter
is amended by inserting after the item relating to section 310 the following
new item:
310A. Chief Acquisition Officer; other
acquisition
officers.
.
(c)Deadline for
designations
(1)Not later than 180 days after the date of the enactment of
this Act, the Secretary of Veterans Affairs shall submit to Congress a plan for
implementing section 310A of title 38, United States Code, as added by
subsection (a).
(2)Deadline for
implementationNot later than 18 months after the date of the
enactment of this Act, the Secretary of Veterans Affairs shall fully implement
the plan submitted under paragraph (1).
4.Acquisition
policy of Department of Veterans Affairs
(a)Department-Wide
policy required
(1)Subchapter
II of chapter 81 of title 38, United States Code, is amended by adding at the
end the following new section:
8129.Department-wide
acquisition policy
(a)The Secretary shall establish and maintain a
comprehensive Department-wide acquisition program under which the Secretary
shall develop, implement, and enforce a streamlined approach to entering into
contracts and purchasing goods and services. Such program shall include the
elements described in subsection (b).
(b)The
Secretary shall ensure that the Department-wide acquisition program includes
the following elements:
(1)The centralization
under the Chief Acquisition Officer of all contracting activities of the
Department, including purchasing, and including all contracting activities
carried out by each Administration and staff office of the Department as of the
date of the enactment of this section.
(2)The establishment
of acquisition goals to meet the mission needs of the Department.
(3)The development of
Department requirements with respect to acquisition.
(4)The establishment
of an overall acquisition strategy for the Department.
(5)Soliciting and
awarding contracts.
(6)The management of
acquisition system and contract performance.
(c)(1)Except as provided in
paragraph (2), an acquisition of any health care item by the Department shall
be made through the use of a Federal supply schedule 65 or 66 contract awarded
by the Department or a national contract that is awarded by or approved by the
Department.
(2)(A)Paragraph (1) does not
apply to an acquisition of a health care item in any of the following
cases:
(i)An acquisition necessary to meet a
current or near-term medical emergency at a medical center.
(ii)An acquisition for an item not listed
in the Federal supply schedule or as part of a national contract and for which
there is a valid clinical need.
(iii)An acquisition for a specialized
health care item not listed in the Federal supply schedule or as part of a
national contract for the special needs of an individual patient who has one of
the special needs identified in section 1706(b) of this title and who has a
valid clinical need for the item.
(iv)An acquisition that is part of an
approved sharing agreement between the Department of Defense and the Department
of Veterans Affairs with demonstrable cost-per-item savings for an item listed
on the Federal supply schedule or a national contract.
(B)An acquisition referred to in any of
clauses (i) through (v) of subparagraph (A) may be made only if the acquisition
is specifically authorized in advance in writing by the Secretary. The
authority of the Secretary under the preceding sentence with respect to
contracts awarded by the Department may be delegated only to the Assistant
Secretary for Acquisition, Construction, and Asset Management.
(3)Before entering into either a new
Federal supply schedule contract or a new national contract, the Chief
Acquisition Officer may amend any clause of the Federal Acquisition Regulation
otherwise required to be included in the contract in such manner as the Chief
Acquisition Officer determines necessary to protect the interests of the
Government.
(4)In the case of an emergency
acquisition of a health care item under paragraph (2)(B), the quantity of the
item procured may not exceed the quantity of that item that meets the
reasonably foreseeable need for the item at the medical facility concerned
until resupply can be achieved through an acquisition action other than an
emergency acquisition.
(d)Procedures To
assure compliance(1)The Secretary shall
establish procedures to assure compliance by each Department medical facility
with the provisions of this section and with applicable Federal and Department
acquisition regulations.
(2)The procedures established by the
Secretary under paragraph (1) shall be designed to maximize the availability of
health care items and the use of the Federal supply schedule by the
Department.
(3)The procedures established by the
Secretary under paragraph (1) shall include procedures designed to standardize
items at the local, regional, or national level to provide special patient
populations (as identified in section 1706(b) of this title) with the range and
types of health care items required to meet their clinical and quality-of-life
needs.
(4)The Advisory Committee on Prosthetics
and Special-Disabilities Programs established under section 543 of this title
shall review the procedures referred to in paragraph (3), including the
implementation of those procedures.
(e)(1)The
Secretary shall establish annual goals for Department medical facilities for
the purchase of health care items from Federal supply schedule contracts and
national contracts meeting the requirements of subsection (d). Such goals shall
be designed to maximize the percentage of such purchases that are made through
such contracts.
(2)Achievement of the goals established
under this subsection shall be an element in the performance standards for
employees of the Department who have the authority and responsibility for
achieving those goals.
(f)Relationship to
other provisions of lawA provision of law that is inconsistent
with any provision of this section shall not apply, to the extent of the
inconsistency, to the acquisition of a health care item for the
Department.
(g)(1)Not later than December
31 each year, the Secretary shall submit to the Committees on Veterans’ Affairs
of the Senate and House of Representatives a report on the acquisition of
health care items during the preceding fiscal year. Each such report shall
include, for the year covered by the report, the following:
(A)The total dollar amount of all items
listed in Federal supply schedule 65 or 66 and the total dollar value of the
exceptions to subsection (c)(1) under each of clauses (i), (ii), (ii), (iv),
and (v) of subsection (c)(2)(A), shown by medical facility.
(B)A detailed explanation for such
exceptions, including—
(i)any uses of emergency acquisition
authority at Department medical facilities;
(ii)any authorizations under
subsection (c)(2)(A) for acquisition of items not listed on the Federal supply
schedules or on national contracts; and
(iii)any exceptions granted for
special health care needs of veterans with disabilities described in section
1706(b) of this title.
(C)An analysis of sharing agreements
between the Department and the Department of Defense, including the basic
sharing initiative and the division of financial responsibility between the two
Departments.
(D)The stated Department goal under each
acquisition preference program, together with an assessment of the performance
of the Department toward achievement of such goals, including any goals for
contracting with businesses that are owned and controlled by veterans or
veterans with service-connected disabilities.
(2)The Advisory Committee on Prosthetics
and Special-Disabilities Programs of the Department shall submit comments on
each report under paragraph (1) before the report is submitted under that
paragraph, and the Secretary shall include those comments in the report as
submitted.
(3)For the purposes of this
subsection:
(A)The term health care item
includes any item other than services listed in any Federal Supply
Classification other than Federal supply schedule 65 or 66 over which the
Department has been delegated authority.
(B)The term national
contract means a contract for the acquisition of an item that is entered
into by the National Acquisition Center of the Department or another Department
acquisition activity, as authorized by the Secretary, that is available for use
by all Department medical facilities.
(C)The term valid clinical
need means a clinical need that is valid in the professional judgment of
an appropriate clinician. Such term applies to health care items, prosthetic
appliances, sensory or mobility aids and supplies that are prescribed by a
physician for special patient populations such as veterans with spinal cord
dysfunction, blindness, amputations, and other veterans included in section
1706(b) of this title.
(D)The term Federal supply schedule
contract means a contract that is awarded and administered by the
National Acquisition Center of the Department, under a delegation of authority
as of the date of the enactment of this section or a contract that is awarded
and administered by the Department under regulations prescribed under section
8130 of this title.
(E)The term emergency
acquisition means an acquisition necessary to meet an emergency need
affecting the health or safety of a person being furnished health care services
by the
Department.
.
(2)The table of sections at the beginning of such chapter
is amended by inserting after the item relating to section 8128 the following
new item:
8129. Department-wide acquisition
policy.
.
(b)Deadline for
implementationThe acquisition policy required by section 8129 of
title 38, United States Code, as added by subsection (a), shall be fully
implemented by the date that is 18 months after the date of the enactment of
this Act.
5.Authority for
Secretary of Veterans Affairs to enter into certain personal services
contracts
(a)Contracts for
scarce medical specialist servicesSection 7409(a) of title 38,
United States Code, is amended, in the first sentence, by inserting ,
including personal services contracts,
after
contracts
.
(b)Sharing of
health care resources with Department of DefenseSection 8111(a)
of such title is amended by inserting , including personal services
contracts,
after contracts
.
(c)Sharing of
health care resourcesSection 8153(a) of such title is amended by
inserting , including a personal services contract,
after
contract
.
(d)Not later than 180 days after the date of the
enactment of this Act, the Secretary of Veterans Affairs shall prescribe
regulations to carry out the amendments made by this section.
6.Award and
administration of certain Federal supply schedules by Secretary of Veterans
Affairs
(a)Expansion of
definition of competitive proceduresSection 309(b) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 259) is amended—
(1)in paragraph (4),
by striking and
at the end;
(2)in paragraph (5),
by striking the period and inserting ; and
; and
(3)by adding at the
end the following new paragraph:
(6)the procedures established by the Secretary
of Veterans Affairs for the use of certain Federal supply schedules, pursuant
to regulations prescribed under section 8130 of title 38, United States Code,
if—
(A)the procedures
provide that the use of any such supply schedule has been open to all
responsible sources; and
(B)orders and contracts under such procedures
result in the lowest cost alternative to meet the needs of the
Government.
.
(b)Authority of
Secretary of Veterans Affairs
(1)Subchapter II of chapter 81 of title 38, United States
Code, as amended by section 3, is further amended by adding at the end the
following new section:
8130.Award and
administration of certain Federal supply schedules
(a)The Secretary shall prescribe regulations
to provide procedures for soliciting, negotiating, awarding, and administering
the Federal supply schedules described in subsection (c).
(b)Contract clause
requirementsThe regulations prescribed under subsection (a)
shall require that a contract entered into by the Secretary under a Federal
supply schedule shall include pre- and post-award audit clauses, an economic
price adjustment clause, a price reductions clause, and a price adjustment for
failure to provide accurate information clause.
(c)This
section shall apply with respect to any Federal supply schedule for which the
authority to administer such schedule is transferred from the Administrator of
General Services to the Secretary of Veterans Affairs, whether such authority
is transferred before, on, or after the date of the enactment of this
section.
.
(2)General Services
Administration rules and regulationsUntil the Secretary of
Veterans Affairs prescribes regulations under section 8130(a) of title 38,
United States Code (as added by paragraph (1)), the Secretary shall comply with
the rules and regulations relating to the Federal supply schedules prescribed
by the Administrator of General Services that were in effect on the date of the
enactment of this Act.
(3)The table of
sections at the beginning of such chapter is amended by inserting after the
item relating to section 8130, as added by section 3, the following new
item:
8130. Administration of Federal supply
schedule.
.
(4)Not later than 180 days after the date of the
enactment of this Act, the Secretary of Veterans Affairs shall prescribe the
regulations required under section 8130 of title 38, United States Code, as
added by paragraph (1).
7.Improvement of
Department of Veterans Affairs small business contracting goals
(a)Section 8127(c)
of title 38, United States Code, is amended—
(1)in paragraph (2),
by striking and
at the end;
(2)in paragraph (3),
by striking the period and inserting the following: ; and
;
and
(3)by adding at the
end the following new paragraph:
(4)in the case of a contract for the purchase
of a commercial item, the vendor of the item is a manufacturer or a regular
dealer.
.
(b)Complaint
process for use of restricted competitionSubsection (d) of such
section is amended—
(1)by striking
Except as provided
and inserting (1) Except as
provided
; and
(2)by adding at the
end the following new paragraph:
(2)Any complaint regarding the noncompliance
of a contracting officer with this subsection shall be submitted to the
Secretary.
.
(c)Subsection (e) of such section is
amended—
(1)by striking
only if the small business concern and the veteran
and all that
follows and inserting only if—
; and
(2)by adding at the
end the following new paragraphs:
(1)the small business concern and the veteran
owner of the small business concern are listed in the database of veteran-owned
businesses maintained by the Secretary under subsection (f);
(2)the Secretary has
performed the verification functions of the Secretary under paragraph (4) of
such subsection with respect to the small business concern; and
(3)the contract is
only for the procurement of a good or service with an North American Industry
Classification System code specified by the Secretary under paragraph (9) of
that subsection for the small business
concern.
.
(d)Subsection
(f) of such section is amended by adding at the end the following new
paragraphs:
(7)The Secretary may not include in the
database a small business concern that is the vendor of a commercial item
unless the concern is the manufacturer or regular dealer of the item, unless
the Secretary specifically provides for a waiver of such requirement for such
concern.
(8)The Secretary shall establish
specific criteria to be used in carrying out the verification functions under
paragraph (4), including criteria requiring specific documentation and
certifications from each small business concern proposed to be included in the
database.
(9)For each small business concern
included in the database, the Secretary shall specify the North American
Industry Classification System code or codes of the goods and services that may
be procured by the Department from such
concern.
.
(e)Subsection
(l) of such section is amended by adding at the end the following new
items:
(3)The term commercial item
has
the meaning given that term in section 4(12) of the Office of Federal
Procurement Policy Act (41 U.S.C. 203(12)) as long as items and services
directly relating to the sale of such a commercial item are offered to
commercial customers.
(4)The term
management and daily business operations
includes—
(A)with respect to a
contract for the provision of services, the services to be performed by a
contract awarded under this section; and
(B)with respect to a
contract for the provision of goods that are not manufactured by the small
business concern in question, the provision of services relating directly to
the sale of such goods.
(5)The term
regular dealer
with respect to any contract means a person who
owns, operates, or maintains a store, warehouse, or other establishment in
which the commodities or goods of the general character described by the
specifications and required under the contract are bought, kept in stock, and
sold to the public in the usual course of
business.
.
(f)Deadline for
establishment of criteriaNot later than 180 days after the date
of the enactment of this Act, the Secretary of Veterans Affairs shall establish
criteria for the use of sole source contracts for Department of Veterans
Affairs contracts above the simplified acquisition threshold.