[Federal Register Volume 62, Number 164 (Monday, August 25, 1997)]
[Proposed Rules]
[Pages 44932-44945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21869]


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DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 810, 811, 812, 836, 852 and 870

RIN 2900-AI05


VA Acquisition Regulations: Commercial Items

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans 
Affairs Acquisition Regulations (VAAR) concerning the acquisition of 
commercial items. It is proposed to amend VAAR provisions to conform to

[[Page 44933]]

the Federal Acquisition Regulation (FAR), to delete obsolete references 
and titles, to update references and titles, to reorganize material and 
to remove obsolete material. This document also proposes to set forth 
VAAR provisions and clauses for use by contracting officers for 
commercial item solicitations and contracts. These provisions and 
clauses appear to be warranted for use in commercial item solicitations 
and contracts. This document also requests Paperwork Reduction Act 
comments concerning collection of information regarding clauses and 
provisions for use in both commercial and non-commercial item, service, 
and construction solicitations and contracts.

DATES: Comments must be received on or before October 24, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should 
indicate that they are submitted in response to ``RIN 2900-AI05.'' All 
written comments will be available for public inspection in the Office 
of Regulations Management, Room 1158, between the hours of 8:00 a.m. 
and 4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Don Kaliher, Acquisition Policy Team 
(95A), Office of Acquisition and Materiel Management, Department of 
Veterans Affairs, 810 Vermont Ave., NW, Washington DC 20420, (202) 273-
8819.

SUPPLEMENTARY INFORMATION:

Background

    This document proposes to transfer to Part 811 the material 
currently contained in Parts 810 and 812 to conform to the 
corresponding numbering of the FAR, to renumber and rename other 
provisions to conform to the FAR, to delete obsolete references and 
titles, and to update references and titles.
    Regulations in the FAR that required the use of Federal 
specifications have been removed. Accordingly, implementing and 
supplementing regulations contained in VAAR Part 810 regarding 
mandatory use of Federal specifications are proposed to be removed to 
correspond with the FAR.
    The VAAR contains a number of provisions and clauses set forth in 
Part 852. This document proposes to amend VAAR Part 812.301 to 
incorporate certain of those provisions and clauses specifically for 
use in VA commercial item solicitations and contracts. Contracting 
officers would use these provisions and clauses where appropriate for 
commercial item solicitations and contracts that exceed the micro-
purchase threshold. The provisions and clauses could be used by 
contracting officers for commercial item procurements below the micro-
purchase threshold when determined by the contracting officer to be in 
the Government's best interest. The FAR, at 48 CFR 12.301(f), states 
that agencies may supplement the provisions and clauses prescribed in 
Part 12 of the FAR as necessary to reflect agency unique statutes 
applicable to the acquisition of commercial items or as may be approved 
by the agency senior procurement executive. These provisions and 
clauses have been approved by the VA Senior Procurement Executive 
specifically for use in commercial item solicitations and contracts. 
Accordingly, it is proposed that the following VAAR provisions and 
clauses, which are set forth at 48 CFR Chapter 8, Part 852, would apply 
to commercial item solicitations and contracts for the reasons stated.

Veteran-Owned Small Business

    1. 852.219-70, Veteran-Owned Small Business (DEC 1990). The offeror 
represents that the firm submitting this offer (----) is (----) is not, 
a veteran-owned small business, (----) is (----) is not, a Vietnam era 
veteran-owned small business, and (----) is (----) is not, a disabled 
veteran-owned small business. A veteran-owned small business is defined 
as a small business, at least 51 percent of which is owned by a veteran 
who also controls and operates the business. Control in this context 
means exercising the power to make policy decisions. Operate in this 
context means actively involved in the day-to-day management. For the 
purpose of this definition, eligible veterans include:
    (a) A person who served in the U.S. Armed Forces and who was 
discharged or released under conditions other than dishonorable.
    (b) Vietnam era veterans who served for a period of more than 180 
days, any part of which was between August 5, 1964, and May 7, 1975, 
and were discharged under conditions other than dishonorable.
    (c) Disabled veterans with a minimum compensable disability of 30 
percent, or a veteran who was discharged for disability. Failure to 
execute this representation will be deemed a minor informality and the 
bidder or offeror shall be permitted to satisfy the requirement prior 
to award (see FAR 14.405).

(End of Provision)

    The above Veteran-Owned Small Business provision would help support 
VA's policy to assist small businesses owned by veterans or by disabled 
veterans. The information gathered would allow VA to ensure that such 
firms are given an opportunity to participate in VA acquisitions. 
Without such information, VA's outreach efforts would be hindered.

Commercial Advertising

    2. 852.270-4, Commercial Advertising (NOV 1984).
    The bidder or offeror agrees that if a contract is awarded to him/
her, as a result of this solicitation, he/she will not advertise the 
award of the contract in his/her commercial advertising in such a 
manner as to state or imply that the Department of Veterans Affairs 
endorses a product, project or commercial line of endeavor.

(End of clause)

    The above Commercial Advertising clause is required to ensure that 
firms do not imply or claim in their advertising that VA endorses the 
firms' products or services.

Guarantee

    3. 852.210-71, Guarantee (NOV 1984).
    The contractor guarantees the equipment against defective material, 
workmanship and performance for a period of [  ],* said guarantee to 
run from date of acceptance of the equipment by the Government. The 
contractor agrees to furnish, without cost to the Government, 
replacement of all parts and material which are found to be defective 
during the guarantee period. Replacement of material and parts will be 
furnished to the Government at the point of installation, if 
installation is within the continental United States, or f.o.b. the 
continental U.S. port to be designated by the contracting officer if 
installation is outside of the continental United States. Cost of 
installation of replacement material and parts shall be borne by the 
contractor.**

(End of clause)

    *Normally, insert one year. If industry policy covers a shorter 
or longer period, i.e., 90 days or for the life of the equipment, 
insert such period.
    **The above clause will be modified to conform to standards of 
the industry involved.

    Regarding the above Guarantee clause, the FAR does not have a 
guarantee clause. Rather, contracting officers are expected to draft 
individual clauses for each acquisition. This clause is drafted to 
conform to commercial practices,

[[Page 44934]]

would reduce VA administrative costs when drafting solicitations, and 
would assist VA contracting officers by having a uniform guarantee 
clause for use in all acquisitions.

Rejected Goods

    Contracting officers may include the following clause in contracts 
for property, except for contracts for packing house and dairy 
products, bread and bakery products, and for fresh and frozen fruits 
and vegetables.
    4. 852.210-72, Rejected Goods (NOV 1984).
    Rejected goods will be held subject to contractor's order for not 
more than 15 days, after which the rejected merchandise will be 
returned to the contractor's address at his/her risk and expense. 
Expenses incident to the examination and testing of materials or 
supplies which have been rejected will be charged to the contractor's 
account.

(End of clause)

    Contracts for packing house and dairy products, bread and bakery 
products, and for fresh and frozen fruits and vegetables would contain 
the following clause:
    5. 852.210-72, Rejected Goods (NOV 1984).
    The contractor shall remove rejected supplies within 48 hours after 
notice of rejection. Supplies determined to be unfit for human 
consumption will not be removed without permission of the local health 
authorities. Supplies not removed within the allowed time may be 
destroyed. The Department of Veterans Affairs will not be responsible 
for nor pay for products rejected. The contractor will be liable for 
costs incident to examination of rejected products.

(End of clause)

    Regarding the two above Rejected Goods clauses, the FAR does not 
include a clause on how to handle rejected goods. The Uniform 
Commercial Code (UCC) provides that a buyer (VA) is under a duty to 
hold rejected goods for a time sufficient to permit the seller to 
remove them. The clause numbered as ``4'' sets forth a 15-day limit on 
holding nonperishable goods and the clause numbered as ``5'' sets forth 
a 48-hour limit on holding perishable goods. We believe that these 
clauses do not conflict with commercial practices and that they set 
forth reasonable time limits for holding rejected goods.

Frozen Processed Foods

    6. 852.210-73, Frozen Processed Foods (NOV 1984).
    The products delivered under this contract shall be in excellent 
condition; shall not show evidence of defrosting, refreezing, or 
freezer burn; and shall be transported and delivered to the consignee 
at a temperature of 0 degrees Fahrenheit or lower.

(End of clause)

    The above Frozen Processed Foods clause specifies the minimum 
acceptable condition of frozen foods upon delivery. The FAR does not 
contain similar requirements. VA purchases large quantities of frozen 
foods and this clause is proposed for use in VA's commercial item 
acquisitions to ensure receipt of acceptable products.

Special Notice

    7. 852.210-74, Special Notice (APR 1984).
    Descriptive literature. The submission of descriptive literature 
with offers is not required and voluntarily submitted descriptive 
literature which qualifies the offer will require rejection of the 
offer.
    However, within 5 days after award of contract, the contractor will 
submit to the contracting officer literature describing the equipment 
he/she intends to furnish and indicating strict compliance with the 
specification requirements.
    The contracting officer will, by written notice to the contractor 
within 20 calendar days after receipt of the literature, approve, 
conditionally approve, or disapprove the equipment proposed to be 
furnished. The notice of approval or conditional approval will not 
relieve the contractor from complying with all requirements of the 
specifications and all other terms and conditions of this contract. A 
notice of conditional approval will state any further action required 
of the contractor. A notice of disapproval will cite reasons therefor.
    If the equipment is disapproved by the Government, the contractor 
will be subject to action under the Default provision of this contract. 
However, prior to default action the contractor will be permitted a 
period (at least 10 days) under that clause to submit additional 
descriptive literature on equipment originally offered or descriptive 
literature on other equipment.
    The Government reserves the right to require an equitable 
adjustment of the contract price for any extension of the delivery 
schedule necessitated by additional descriptive literature evaluations.

(End of provision)

    The above Special Notice provision concerns the submission of 
descriptive literature and is used only in telephone system 
acquisitions. There is no corresponding FAR coverage. This clause is 
proposed for use in VA's telephone system commercial item acquisitions. 
Because of the high installation costs for telephone equipment, the 
added emphasis on ensuring the capability of the equipment to meet 
specification requirements prior to installation appears to be 
warranted.

Technical Industry Standards

    8. 852.210-75, Technical Industry Standards (APR 1984).
    The supplies or equipment required by this invitation for bid or 
request for proposal must conform to the standards of the [  ]* and [  
]* as to [  ]**. The successful bidder or offeror will be required to 
submit proof that the item(s) he/she furnishes conforms to this 
requirement. This proof may be in the form of a label or seal affixed 
to the equipment or supplies, warranting that they have been tested in 
accordance with and conform to the specified standards. The seal or 
label of any nationally recognized laboratory such as those listed by 
the National Fire Protection Association, Boston, Massachusetts, in the 
current edition of their publication ``Research on Fire,'' is 
acceptable. Proof may also be furnished in the form of a certificate 
from one of these laboratories certifying that the item(s) furnished 
have been tested in accordance with and conform to the specified 
standards.

(End of provision)

    * Insert name(s) of organization(s), the standards of which are 
pertinent to the Government needs.
    ** Insert pertinent standards, i.e., fire and casualty, safety 
and fire protection, etc.

    The above Technical Industry Standards provision requires offerors 
to furnish evidence that the supplies or equipment they intend to 
provide meet the technical industry standards required by the 
solicitation. It is in VA's best interest, and the clause would be 
required, to ensure that the supplies or equipment VA procures meet 
certain standards, such as Underwriters Laboratory, to protect the 
safety of individuals coming in contact with or using those supplies or 
equipment.

Caution to Bidders--Bid Envelopes

    9. 852.214-70, Caution to Bidders--Bid Envelopes (APR 1984)
    It is the responsibility of each bidder to take all necessary 
precautions, including the use of proper mailing

[[Page 44935]]

cover, to insure that the bid price cannot be ascertained by anyone 
prior to bid opening. If a bid envelope is furnished with this 
invitation, the bidder is requested to use this envelope in submitting 
the bid. The bidder may, however, when it suits a purpose, use any 
suitable envelope, identified by the invitation number and bid opening 
time and date. If a bid envelope is not furnished, the bidder will 
complete and affix the enclosed Optional Form 17, Sealed Bid Label, to 
the lower left corner of the envelope used in submitting the bid.

(End of provision)

    FAR Part 12 and FAR commercial item provisions do not contain any 
guidance to bidders regarding protection of their bid prices or on how 
to clearly identify their bids. This VAAR provision provides such 
guidance and may assist bidders in ensuring that their bid prices are 
protected from exposure prior to bid opening and that their bids are 
identified and received on time.

Estimated Quantity(ies)

    The following clause would be used in estimated quantity contracts, 
except contracts for coal, orthopedic, prosthetic and optical supplies, 
or in National Cemetery Service contracts for monuments:
    10. 852.216-70, Estimated Quantities (APR 1984).
    As it is impossible to determine the exact quantities that will be 
required during the contract term, each bidder whose bid is accepted 
wholly or in part will be required to deliver all articles or services 
that may be ordered during the contract term, except as he/she 
otherwise indicates in his/her bid and except as otherwise provided 
herein. Bids will be considered if made with the proviso that the total 
quantities delivered shall not exceed a certain specified quantity. 
Bids offering less than 75 percent of the estimated requirement or 
which provide that the Government shall guarantee any definite 
quantity, will not be considered. The fact that quantities are 
estimated shall not relieve the contractor from filling all orders 
placed under this contract to the extent of his/her obligation. Also, 
the Department of Veterans Affairs shall not be relieved of its 
obligation to order from the contractor all articles or services that 
may, in the judgment of the ordering officer, be needed except that in 
the public exigency procurement may be made without regard to this 
contract.

(End of clause)

    The following clause would be used in local coal-hauling contracts:
    11. 852.216-70, Estimated Quantity (APR 1984).
    The estimated requirement shown in this invitation for bids cover 
the requirements for the entire contract period. It is understood and 
agreed that during the period of this contract the Government may order 
and the contractor will haul such coal as may, in the opinion of the 
Government, be required, except that in the public exigency procurement 
may be made without regard to this contract.

(End of clause)

    The following clause would be used for orthopedic, prosthetic, and 
optical supplies.
    12. 852.216-70, Quantities (APR 1984).
    The supplies and/or services listed in the attached schedule will 
be furnished at such time and in such quantities as they are required.

(End of clause)

    The following clause would be used for National Cemetery Service 
contracts for monuments:
    13. 852.216-70, Estimated Quantities (JUL 1989).
    As it is impossible to determine the exact quantities that will be 
required during the contract term, each bidder whose bid is accepted 
wholly or in part will be required to deliver all articles that may be 
ordered during the contract term, except as he or she otherwise 
indicates in his or her bid and except as otherwise provided herein. 
Bids will be considered if made with the proviso that the total 
quantities delivered shall not exceed a certain specified quantity. The 
fact that quantities are estimated shall not relieve the contractor 
from filling all orders placed under this contract to the extent of his 
or her obligation. Also, the Department of Veterans Affairs shall not 
be relieved of its obligation to order from the contractor all articles 
that may, in the judgment of the ordering officer, be needed except 
that in the public exigency procurement may be made without regard to 
this contract.

(End of clause)

    The above clauses regarding quantities would be for use in 
solicitations where definite quantities cannot be determined. They 
would require contractors to provide all quantities ordered under the 
contract, even if those quantities exceed the original estimate. These 
clauses appear to be necessary to ensure that VA is able to obtain the 
quantities that are ultimately needed.

Sales or Use Taxes

    14. 852.229-70, Sales or Use Taxes (APR 1984).
    The articles listed in this bid invitation will be purchased from 
personal funds of patients and prices bid herein include any sales or 
use tax heretofore imposed by any State, or by any duly constituted 
taxing authority therein, having jurisdiction to levy such a tax, 
applicable to the material in this bid.

(End of provision)

    15. 852.229-71, Sales or Use Taxes (APR 1984).
    Any article purchased from this contract, payable from personal 
funds of patients, will be subject to any applicable sales or use tax 
levied thereon by any State, or by duly constituted taxing authority 
therein having jurisdiction to levy such a tax; the total amount of the 
tax applicable to such purchase payable from personal funds of patients 
will be computed on the total amount of the order and will be shown as 
a separate item on the purchase order and invoice. The bidder shall 
identify the applicable taxes and rates in his/her bid.

(End of provision)

    Regarding the two above provisions on taxes, VA contracting 
officers occasionally issue solicitations for goods or services that 
would be purchased from patient funds. Under such circumstances, the 
purchase is not exempt from state and local taxes. The standard FAR 
clause 52.212-4, paragraph (k), provides that the contract price shall 
include all applicable taxes but, if used in a solicitation for 
purchase from patient funds, does not advise bidders that the Federal 
Government is not the purchaser. Since the Federal Government is exempt 
from most taxes, this could result in a bidder failing to include taxes 
in such bids. These provisions appear to be necessary for use in 
solicitations for commercial items to be purchased from patient funds 
to protect the seller from possible losses.

Protest Content

    16. 852.233-70, Protest Content (JUN 1987)
    (a) Any protest filed by an interested party shall:
    (1) Include the name, address, and telephone number of the 
protester;
    (2) Identify the solicitation and/or contract number;
    (3) Include an original signed by the protester or his/her 
representative and at least one copy;
    (4) Set forth a detailed statement of the legal and factual ground 
of the protest including copies of relevant documents;

[[Page 44936]]

    (5) Specifically request a ruling of the individual upon whom the 
protest is served; and
    (6) State the form of relief requested.
    (b) Failure to comply with the above may result in dismissal of the 
protest without further consideration.

(End of provision)

    FAR 12.301(d) does not require contracting officers to include FAR 
provision 52.233-2, Service of Protest, in commercial item 
solicitations, but FAR 12.301(e) does allow optional use. If FAR 
provision 52.233-2 is used by contracting officers, this corresponding 
VAAR provision 852.233-70 should also be included in the solicitation. 
This provision advises interested parties of the information the FAR, 
at 33.103(d)(2), requires interested parties to include in a protest. 
This assists bidders/offerors by having the information readily 
available in the solicitation, without their having to refer back to 
the FAR.

Contractor Responsibilities

    17. 852.237-70, Contractor Responsibilities (APR 1984) The 
contractor shall obtain all necessary licenses and/or permits required 
to perform this work. He/she shall take all reasonable precautions 
necessary to protect persons and property from injury or damage during 
the performance of this contract. He/she shall be responsible for any 
injury to himself/herself, his/her employees, as well as for any damage 
to personal or public property that occurs during the performance of 
this contract that is caused by his/her employee's fault or negligence, 
and shall maintain personal liability and property damage insurance 
having coverage for a limit as required by the laws of the State of [  
]. Further, it is agreed that any negligence of the Government, its 
officers, agents, servants and employees, shall not be the 
responsibility of the contractor hereunder with the regard to any 
claims, loss, damage, injury, and liability resulting therefrom.

(End of clause)

    The above Contractor Responsibilities clause is used in service and 
construction contracts. This clause makes it the contractor's 
responsibility to obtain all necessary licenses and permits to perform 
the work covered by the contract and emphasizes that the contractor is 
responsible for safety.

Indemnification and Insurance

    18. 852.237-71, Indemnification and Insurance (APR 1984)
    (a) Indemnification. The contractor expressly agrees to indemnify 
and save harmless the Government, its officers, agents, servants, and 
employees from and against any and all claims, loss, damage, injury, 
and liability, however caused, resulting from, arising out of, or in 
any way connected with the performance of work under this agreement. 
Further, it is agreed that any negligence or alleged negligence of the 
Government, its officers, agents, servants, and employees, shall not be 
a bar to a claim for indemnification unless the act or omission of the 
Government, its officers, agents, servants, and employees is the sole, 
competent, and producing cause of such claims, loss, damage, injury, 
and liability. At the option of the contractor, and subject to the 
approval by the contracting officer of the sources, insurance coverage 
may be employed as guaranty of indemnification.
    (b) Insurance. Satisfactory insurance coverage is a condition 
precedent to award of a contract. In general, a successful bidder must 
present satisfactory evidence of full compliance with State and local 
requirements, or those below stipulated, whichever are the greater. 
More specifically, workmen's compensation and employer's liability 
coverage will conform to applicable State law requirements for the 
service contemplated, whereas general liability and automobile 
liability of comprehensive type, shall in the absence of higher 
statutory minimums, be required in the amounts per vehicle used of not 
less than $200,000 per person and $500,000 per occurrence for bodily 
injury and $20,000 per occurrence for property damage. State-approved 
sources of insurance coverage ordinarily will be deemed acceptable to 
the Department of Veterans Affairs installation, subject to timely 
certifications by such sources of the types and limits of the coverages 
afforded by the sources to the bidder. (In those instances where 
airplane service is to be used, substitute the word ``aircraft'' for 
``automobile'' and ``vehicle'' and modify coverage to require aircraft 
public and passenger liability insurance of at least $200,000 per 
passenger and $500,000 per occurrence for bodily injury, other than 
passenger liability, and $200,000 per occurrence for property damage. 
Coverage for passenger liability bodily injury shall be at least 
$200,000 multiplied by the number of seats or passengers, whichever is 
greater.)

(End of clause)

    The above Indemnification and Insurance clause would be for use on 
vehicle and aircraft service contracts. It is critical that VA 
contractors carry appropriate insurance. The insurance protects both VA 
and VA beneficiaries using VA services.

Representatives of Contracting Officers

    19. 852.270-1, Representatives of Contracting Officers (APR 1984) 
The contracting officer reserves the right to designate representatives 
to act for him/her in furnishing technical guidance and advice or 
generally supervise the work to be performed under this contract. Such 
designation will be in writing and will define the scope and limitation 
of the designee's authority. A copy of the designation shall be 
furnished the contractor.

(End of provision)

    The above Representatives of Contracting Officers provision would 
be used whenever it may be necessary to designate another individual to 
act as the contracting officer's technical representative.

Quantities

    20. 852.270-2, Quantities (APR 1984).
    The bidder agrees to furnish up to 25 percent more or 25 percent 
less than the quantities awarded when ordered by the Department of 
Veterans Affairs.

(End of clause)

    The above Quantities clause is similar to the clauses under 
852.216-70 and would be used in bread and bakery products 
solicitations. It requires contractors to provide up to 25 percent 
more, or allows VA to order up to 25 percent less, than the estimated 
quantities shown in the solicitation. It is proposed for use in 
commercial item contracts for bread and bakery products to allow VA 
leeway in ordering such products, where exact usage is difficult to 
predict.

Shellfish

    21. 852.270-3, Shellfish (APR 1984).
    The bidder certifies that oysters, clams, and mussels will be 
furnished only from plants approved by and operated under the 
supervision of shellfish authorities of States whose certifications are 
endorsed currently by the U.S. Public Health Service, and the names and 
certificate numbers of those shellfish dealers must appear on current 
lists published by the U.S. Public Health Service. These items shall be 
packed and delivered in approved containers, sealed in such manner that 
tampering is easily discernible, and marked with packer's certificate 
number impressed or embossed on the side of such containers and 
preceded by the State abbreviation. Containers shall be tagged or 
labeled to show the name and address of the

[[Page 44937]]

approved producer or shipper, the name of the State of origin, and the 
certificate number of the approved producer or shipper.

(End of clause)

    The above Shellfish clause specifies minimum standards that 
contractors must meet when furnishing shellfish to VA. There are no 
similar provisions in the FAR and the clause is proposed for use in 
commercial item solicitations for shellfish to ensure that such items 
meet minimum Federal standards.

Service Data Manual

    The following Service Data Manual clause may be used, in accordance 
with the prescriptions contained in the VAAR, in requests for 
quotations, solicitations, or contracts for the acquisition of 
commercial items of technical medical equipment and devices, provided 
the contracting officer determines that use of the clause is consistent 
with customary commercial practice. Such use is permitted by FAR 
12.301(a)(2).
    22. 852.210-70, Service Data Manual (NOV 1984).
    (a) The successful bidder will supply operation/service 
(maintenance) manuals with each piece of equipment in the quantity 
specified in the solicitation and resulting purchase order. As a 
minimum, the manual(s) shall be bound and equivalent to the manual(s) 
provided the manufacturer's designated field service representative as 
well as comply with all the requirements in paragraphs (b) through (i) 
of this clause. Sections, headings and section sequence identified in 
(b) through (i) of this clause are typical and may vary between 
manufacturers. Variances in the sections, headings and section 
sequence, however, do not relieve the manufacturer of his/her 
responsibility in supplying the technical data called for therein.
    (b) Title Page and Front Matter--The title page shall include the 
equipment nomenclature, model number, effective date of the manual and 
the manufacturer's name and address. If the manual applies to a 
particular version of the equipment only, the title page shall also 
list that equipment's serial number. Front matter shall consist of the 
Table of Contents, List of Tables, List of Illustrations and a 
frontispiece (photograph or line drawing) depicting the equipment.
    (c) Section I, General Description--This section shall provide a 
generalized description of the equipment or devices and shall describe 
its purpose or intended use. Included in this section will be a table 
listing all pertinent equipment specifications, power requirements, 
environmental limitations and physical dimensions.
    (d) Section II, Installation--Section II shall provide pertinent 
installation information. It shall list all input and output connectors 
using applicable reference designators and functional names as they 
appear on the equipment. Included in this listing will be a brief 
description of the function of each connector along with the connector 
type. Instructions shall be provided as to the recommended method of 
repacking the equipment for shipment (packing material, labeling, etc.)
    (e) Section III, Operation--Section III will fully describe the 
operation of the equipment and shall include a listing of each control 
with a brief description of its function and step-by-step procedures 
for each operating mode. Procedures will use the control(s) 
nomenclature as it appears on the equipment and will be keyed to one or 
more illustrations of the equipment. Operating procedures will include 
any preoperational checks, calibration adjustments and operation tests. 
Notes, cautions and warnings shall be set off from the text body so 
they may easily be recognizable and will draw the attention of the 
reader. Illustrations should be used wherever possible depicting 
equipment connections for test, calibration, patient monitoring and 
measurements. For large, complex and/or highly versatile equipment 
capable of many operating modes and in other instances where the 
Operation Section is quite large, operational information may be bound 
separately in the form of an Operators Manual. The providing of a 
separate Operators manual does not relieve the supplier of his 
responsibility for providing the minimum acceptable maintenance data 
specified herein.
    Where applicable, flow charts and narrative descriptions of 
software shall be provided. If programming is either built-in and/or 
user modifiable, a complete software listing shall be supplied. 
Equipment items with software packages shall also include diagnostic 
routines and sample outputs. Submission information shall be given in 
the Maintenance Section to identify equipment malfunctions which are 
software related.
    (f) Section IV, Principles of Operation--This section shall 
describe in narrative form the principles of operation of the 
equipment. Circuitry shall be discussed in sufficient detail to be 
understood by technicians and engineers who possess a working knowledge 
of electronics and a general familiarity with the overall application 
of the devices. The circuit descriptions should start at the overall 
equipment level and proceed to more detailed circuit descriptions. The 
overall description shall be keyed to a functional block diagram of the 
equipment. Circuit descriptions shall be keyed to schematic diagrams 
discussed in paragraph (i) below. It is recommended that for complex or 
special circuits, simplified schematics should be included in this 
section.
    (g) Section V, Maintenance--The maintenance section shall contain a 
list of recommended test equipment, special tools, preventive 
maintenance instructions and corrective information. The list of test 
equipment shall be that recommended by the manufacturer and shall be 
designated by manufacturer and model number. Special tools are those 
items not commercially available or those that are designed 
specifically for the equipment being supplied. Sufficient data will be 
provided to enable their purchase by the Department of Veterans 
Affairs. Preventive maintenance instructions shall consist of those 
recommended by the manufacturer to preclude unnecessary failures. 
Procedures and the recommended frequency of performance shall be 
included for visual inspection, cleaning, lubricating, mechanical 
adjustments and circuit calibration. Corrective maintenance shall 
consist of the data necessary to troubleshoot and rectify a problem and 
shall include procedures for realigning and testing the equipment. 
Troubleshooting shall include either a list of test points with the 
applicable voltage levels or waveforms that would be present under a 
certain prescribed set of conditions, a troubleshooting chart listing 
the symptom, probable cause and remedy, or a narrative containing 
sufficient data to enable a test technician or electronics engineer to 
determine and locate the probable cause of malfunction. Data shall also 
be provided describing the preferred method of repairing or replacing 
discrete components mounted on printed circuit boards or located in 
areas where special steps must be followed to disassemble the 
equipment. Procedures shall be included to realign and test the 
equipment at the completion of repairs and to restore it to its 
original operating condition. These procedures shall be supported by 
the necessary waveforms and voltage levels, and data for selecting 
matched components. Diagrams, either photographic or line, shall show 
the location of printed circuit board mounted components.
    (h) Section VI, Replacement Parts List--The replacement parts list 
shall list, in alphanumeric order, all electrical/electronic, 
mechanical and

[[Page 44938]]

pneumatic components, their description, value and tolerance, true 
manufacturer and manufacturers' part number.
    (i) Section VII, Drawings--Wiring and schematic diagrams shall be 
included. The drawings will depict the circuitry using standard symbols 
and shall include the reference designations and component values or 
type designators. Drawings shall be clear and legible and shall not be 
engineering or production sketches.

(End of clause)

    The following Service Data Manual clause may be used, in accordance 
with the prescriptions contained in the VAAR, in requests for 
quotations, solicitations, or contracts for the acquisition of 
commercial items of mechanical equipment (other than technical medical 
equipment and devices), provided the contracting officer determines 
that use of the clause is consistent with customary commercial 
practice. Such use is permitted by FAR 12.301(a)(2).
    23. 852.210-70, Service Data Manual (NOV 1984).
    The contractor agrees to furnish two copies of a manual, handbook 
or brochure containing operating, installation, and maintenance 
instructions (including pictures or illustrations, schematics, and 
complete repair/test guides as necessary). Where applicable, it will 
include electrical data and connection diagrams for all utilities. The 
instructions shall also contain a complete list of all replaceable 
parts showing part number, name, and quantity required.

(End of clause)

    When the bid or proposal will result in the initial purchase 
(including each make and model) of a centrally procured item, the 
following clause would be used:
    24. 852.210-70, Service Data Manual (NOV 1984).
    The contractor agrees, when requested by the contracting officer, 
to furnish not more than three copies of the technical documentation 
required by paragraph 852.210-70(a) to the Service and Reclamation 
Division, VA Supply Depot, Hines, Ill. In addition, the contractor 
agrees to furnish two additional copies of the technical documentation 
required by 852.210-70(a) with each piece of equipment sold as a result 
of the invitation for bid or request for proposal.

(End of clause)

    The above clauses concerning service data manuals would be required 
in support of VA's equipment acquisitions and equipment repair program. 
End-use operators of equipment need operator's manuals to ensure that 
the equipment is operated properly and safely and that the equipment is 
properly cleaned. VA biomedical engineers repair many of the items of 
equipment at VA medical centers and must have the vendor's repair 
manuals to accomplish those repairs.

Brand Name or Equal

    25. 852.210-77, Brand Name or Equal (NOV 1984).

    (Note: as used in this clause, the term brand name includes 
identification of products by make and model.)

    (a) If items called for by this invitation for bids have been 
identified in the schedule by a ``brand name or equal'' description, 
such identification is intended to be descriptive, but not restrictive, 
and is to indicate the quality and characteristics of products that 
will be satisfactory. Bids offering ``equal'' products (including 
products of the brand name manufacturer other than the one described by 
brand name) will be considered for award if such products are clearly 
identified in the bids and are determined by the Government to meet 
fully the salient characteristics requirements listed in the 
invitation.
    (b) Unless the bidder clearly indicates in his bid that he is 
offering an ``equal'' product, his bid shall be considered as offering 
a brand name product referenced in the invitation for bids.
    (c) (1) If the bidder proposes to furnish an ``equal'' product, the 
brand name, if any, of the product to be furnished shall be inserted in 
the space provided in the Invitation or Bids, or such product shall be 
otherwise clearly identified in the bid. The evaluation of bids and the 
determination as to equality or the product offered shall be the 
responsibility of the Government and will be based on information 
furnished by the bidder or identified in his/her bid as well as other 
information reasonably available to the purchasing activity.
    Caution To Bidders. The purchasing activity is not responsible for 
locating or securing any information which is not identified in the bid 
and reasonably available to the purchasing activity. Accordingly, to 
insure that sufficient information is available, the bidder must 
furnish as a part of his/her bid all descriptive material (such as 
cuts, illustrations, drawings or other information) necessary for the 
purchasing activity to: (i) Determine whether the product offered meets 
the salient characteristics requirement of the Invitation for Bids, and 
(ii) Establish exactly what the bidder proposes to furnish and what the 
Government would be binding itself to purchase by making an award. The 
information furnished may include specific references to information 
previously furnished or to information otherwise available to the 
purchasing activity.
    (2) If the bidder proposes to modify a product so as to make it 
conform to the requirements of the Invitation for Bids, he/she shall:
    (i) Include in his/her bid a clear description of such proposed 
modifications, and
    (ii) Clearly mark any descriptive material to show the proposed 
modifications.
    (3) Modifications proposed after bid opening to make a product 
conform to a brand name product referenced in the Invitation for Bids 
will not be considered.

(End of clause)

    Although the FAR expresses a preference for use of performance 
specifications on Federal Government solicitations, the use of ``brand 
name or equal'' purchase descriptions is often necessary to simplify 
and expedite the acquisition process. The General Services 
Administration uses a similar clause and the Civilian Agency 
Acquisition Council is considering reinstating ``brand name or equal'' 
provisions in the FAR. Use of ``brand name or equal'' purchase 
descriptions is a commercial practice in many industries. If use of a 
``brand name or equal'' purchase description is found by the 
contracting officer to be a commercial practice for a specific 
solicitation, a standard clause should be used to advise bidders/
offerors that such descriptions are not intended to restrict the 
acquisition to brand name items. A standard clause would ensure 
uniformity and reduce the administrative costs of solicitation 
preparation.

Nondiscrimination in Services Provided Beneficiaries

    The following clause would be used in all VA requests for 
quotations, solicitations and contracts for providing services to 
eligible beneficiaries:
    26. 852.271-70, Nondiscrimination in Services Provided 
Beneficiaries (APR 1984)
    The contractor agrees to provide all services specified in this 
contract for any person determined eligible by the Under Secretary for 
Health, or designee, regardless of the race, color, religion, sex, or 
national origin of the person for whom such services are ordered. The 
contractor further warrants that he/she will not resort to 
subcontracting as a means of circumventing this provision.

[[Page 44939]]

(End of clause)

    The above nondiscrimination clause is proposed for use in 
commercial item contracts providing services to eligible beneficiaries 
to ensure that vendors do not discriminate against VA beneficiaries 
based on a veteran's race, color, religion, sex, or national origin.

Miscellaneous

    This document proposes to add paragraph 812.301(f) to clarify that 
VAAR clauses are not required for use in micro-purchases, but may be 
used in micro-purchases at the option of the contracting officer when 
use is determined by the contracting officer to be in the Government's 
best interest.
    This document proposes to add paragraph 812.302, in accordance with 
FAR 12.302(c), to provide agency procedures for approval of waivers. 
Waivers are required if contracting officers wish to tailor clauses or 
otherwise include additional terms and conditions in a solicitation or 
contract for commercial items in a manner that is inconsistent with 
customary commercial practice for the item being acquired. The criteria 
that must be used by the next higher level supervisor in approving the 
waiver is set forth at FAR 12.302(c), which provides that the waiver 
describe the customary commercial practice found in the marketplace, 
support the need to include a term or condition that is inconsistent 
with that practice, and include a determination that use of the 
customary commercial practice is inconsistent with the needs of the 
Government.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule will not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (RFA), 5 
U.S.C. 601-612. The adoption of this proposed rule would not cause a 
significant effect on any entities. Costs to comply with any of the 
provisions of the proposed rule will be minimal. Therefore, pursuant to 
5 U.S.C. 605(b), this proposed rule is exempt from the initial and 
final regulatory flexibility analysis requirements of sections 603 and 
604.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), 
collections of information are contained in a number of the clauses and 
provisions set forth in the Supplementary Information portion of this 
proposed rule. Although this document proposes to add provisions and 
clauses for commercial item solicitations and contracts, this Paperwork 
Reduction Act notice of this document seeks approval for collections of 
information for both commercial and non-commercial item, service, and 
construction solicitations and contracts. The provisions and clauses 
are used in both commercial and non-commercial item, service, and 
construction solicitations and contracts. As required under section 
3507(d) of the Act, VA has submitted a copy of this proposed rulemaking 
action to the Office of Management and Budget (OMB) for its review of 
the collection of information.
    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.
    Comments on the collection of information should be submitted to 
the Office of Management and Budget, Attention: Desk Officer for the 
Department of Veterans Affairs, Office of Information and Regulatory 
Affairs, Washington, DC 20503, with copies to the Director, Office of 
Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Avenue, NW, Washington, DC 20420. Comments should indicate that 
they are submitted in response to ``RIN 2900-AI05.''
    Title: Commercial and Non-Commercial Items, Services and 
Construction.
    Title and Provision/Clause Number: 852.219-70, Veteran-Owned Small 
Business.
    Summary of collection of information: VAAR Provision 852.219-70, 
Veteran-Owned Small Business, requests that a firm submitting a 
quotation, bid, or offer furnish information regarding whether or not 
the firm is a small business owned by a veteran, a Vietnam era veteran, 
or a disabled veteran. The information required by this VAAR provision 
will be used by VA to identify veteran-owned businesses to ensure 
eligible veteran-owned firms are given an opportunity to participate in 
VA solicitations for goods and services. Without this information, 
there would be no way to properly monitor this program or conduct VA 
outreach efforts.
    Description of need for information and proposed use of 
information: Public Law 93-237 amended the Small Business Act by 
directing the U.S. Small Business Administration (SBA) to give 
``special consideration'' to veterans of the U.S. Armed Forces in all 
SBA programs. In September 1983, VA adopted the ``special 
consideration'' philosophy and directed all VA contracting activities 
to take affirmative action to solicit and assist Vietnam era and 
disabled veteran-owned small businesses to participate in the VA 
acquisition process. On April 5, 1990, the Secretary approved an 
initiative to expand the Vietnam era and disabled veteran-owned small 
business program to include all veteran-owned small businesses. Title 
38 United States Code vests the Secretary with broad authority to 
assist veterans. The information collected is a self-certification that 
a firm is veteran-owned. It allows VA to ensure that eligible veteran-
owned firms are given an opportunity to participate in VA acquisitions 
and to monitor our success in implementing these regulatory provisions. 
The information requested will be solicited from respondents on a 
voluntary basis.
    Description of likely respondents: All firms submitting written or 
electronic quotations, bids, or offers to VA.
    Estimated number of respondents: 3,403,500 written quotations, 
bids, or offers.
    Estimated frequency of responses: One response for each written 
quotation, bid, or offer submitted.
    Estimated average burden per collection: 15 seconds.
    Estimated total annual reporting and recordkeeping burden: 14,181 
hours.
    Title and Provision/Clause Number: Provision 852.210-74, Special 
Notice.
    Summary of collection of information: This provision is used only 
in VA's telephone system acquisition solicitations and requires the 
contractor, after award of the contract, to submit descriptive 
literature on the equipment the contractor intends to furnish to show 
how that equipment meets the specification requirements of the 
solicitation.
    Description of need for information and proposed use of 
information: The information is needed to ensure that the equipment 
proposed by the contractor meets the specification requirements. 
Failure to require the information could result in the installation of 
equipment that does not meet contract requirements, with significant 
loss to the contractor if the contractor subsequently had to remove the 
equipment and furnish equipment that did meet the specification 
requirements.
    Description of likely respondents: Firms awarded VA contracts for 
telephone systems.
    Estimated number of respondents: 30 per year.
    Estimated frequency of responses: Once for each contract awarded.
    Estimated average burden per collection: 5 hours.

[[Page 44940]]

    Estimated total annual reporting and recordkeeping burden: 150 
hours.
    Title and Provision/Clause Number: Provision 852.210-75, Technical 
Industry Standards.
    Summary of collection of information: This provision requires that 
items offered for sale to VA under the solicitation conform to certain 
technical industry standards, such as Underwriters Laboratory (UL) or 
the National Fire Protection Association, and that the contractor 
furnish evidence to VA that the items meet that requirement. The 
evidence is normally in the form of a tag or seal affixed to the item, 
such as the UL tag on an electrical cord or a tag on a fire-rated door. 
This requires no additional effort on the part of the contractor, as 
the items come from the factory with the tags already in place, as part 
of the manufacturer's standard manufacturing operation. Occasionally, 
for items not already meeting standards or for items not previously 
tested, a contractor will have to furnish a certificate from an 
acceptable laboratory certifying that the items furnished have been 
tested in accordance with, and conform to, the specified standards. 
Only those firms required to submit a separate certificate are noted 
below.
    Description of need for information and proposed use of 
information: To ensure that the items being furnished meet minimum 
safety standards and to protect VA employees, VA beneficiaries, and the 
public.
    Description of likely respondents: Firms whose products have not 
previously been tested to ensure the products meet the industry 
standards required under the solicitation.
    Estimated number of respondents: 100.
    Estimated frequency of responses: Once for each contract awarded.
    Estimated average burden per collection: 30 minutes.
    Estimated total annual reporting and recordkeeping burden: 50 
hours.
    Title and Provision/Clause Number: Provision 852.214-70, Caution to 
Bidders--Bid Envelopes.
    Summary of collection of information: This provision advises 
bidders/offerors that it is their responsibility to insure that their 
bid price cannot be ascertained by anyone prior to bid opening. It also 
advises bidders/offerors to identify their bids by showing the 
invitation number and bid opening date on the outside of the bid 
envelope. A bid envelope or a label is often furnished by the 
Government for use by bidders/offers to identify their bids.
    Description of need for information and proposed use of 
information: The information is needed by the Government to identify 
which parcels of mail are bids/offers and which are other routine mail 
without having to open the envelopes to identify their intent and 
possibly exposing bid/offer prices before bid opening. The information 
will be used to identify which parcels of mail are bids and which are 
other routine mail. The information is also needed to help ensure that 
bids/offers are delivered to the proper bid opening room on time and 
prior to bid opening.
    Description of likely respondents: All firms submitted sealed bids.
    Estimated number of respondents: 346,000.
    Estimated frequency of responses: Once for each sealed bid/offer 
submitted.
    Estimated average burden per collection: 10 seconds.
    Estimated total annual reporting and recordkeeping burden: 960 
hours.
    Title and Provision/Clause Number: Clause 852.237-71, 
Indemnification and Insurance.
    Summary of collection of information: This clause is used in 
solicitations for vehicle or aircraft services. It requires the 
apparent successful bidder/offeror, prior to contract award, to furnish 
evidence that the firm possesses the types and amounts of insurance 
required by the solicitation. This evidence is in the form of a 
certificate from the firm's insurance company.
    Description of need for information and proposed use of 
information: The information is required to protect VA by ensuring that 
the firm to which award will be made possesses the types and amounts of 
insurance required by the solicitation. It helps ensure that VA will 
not be held liable for any negligent acts of the contractor and ensures 
that VA beneficiaries and the public are protected by adequate 
insurance coverage.
    Description of likely respondents: Apparent successful bidders/
offerors on solicitations for vehicle or aircraft services.
    Estimated number of respondents: 500.
    Estimated frequency of responses: Once for each contract awarded.
    Estimated average burden per collection: 30 minutes.
    Estimated total annual reporting and recordkeeping burden: 250 
hours.
    Title and Provision/Clause Number: Provision 852.270-3, Shellfish.
    Summary of collection of information: This provision requires that 
a firm furnishing shellfish to VA must ensure that the shellfish is 
packaged in a container that is marked with the packer's State 
certificate number and State abbreviation. In addition, the firm must 
ensure that the container is tagged or labeled to show the name and 
address of the approved producer or shipper, the name of the State of 
origin, and the certificate number of the approved producer or shipper. 
This information normally accompanies the shellfish from the packer and 
is not information that must be separately obtained by the seller.
    Description of need for information and proposed use of 
information: The information is needed to ensure that shellfish 
purchased by VA comes from a State- and Federal-approved and inspected 
source. The information is used to help ensure that VA purchases 
healthful shellfish.
    Description of likely respondents: Any firm selling shellfish to 
VA.
    Estimated number of respondents: 1,000.
    Estimated frequency of responses: Once for each shipment of 
shellfish.
    Estimated average burden per collection: 1 minute.
    Estimated total annual reporting and recordkeeping burden: 17 
hours.
    Title and Provision/Clause Number: Clause 852.210-70, Service Data 
Manual.
    Summary of collection of information: When VA purchases technical 
medical equipment and devices, or mechanical equipment, VA also 
requires the contractor to furnish both operators manuals and 
maintenance/repair manuals. This clause sets forth those requirements 
and sets forth the minimum standards those manuals must meet to be 
acceptable. Generally, this is the same operator's manual furnished 
with each piece of equipment sold to the general public and the same 
repair manual used by company technicians in repairing the company's 
equipment. The cost of the manuals is included in the contract price or 
listed as a separately priced line item on the purchase order.
    Description of need for information and proposed use of 
information: The operator's manual will be used by the individual 
actually operating the equipment to ensure proper operation and 
cleaning. The repair manual will be used by VA equipment repair staff 
to repair the equipment.
    Description of likely respondents: Firms selling technical medical 
equipment or devices or mechanical equipment to VA.
    Estimated number of respondents: 15,000.
    Estimated frequency of responses: Once for each contract awarded.
    Estimated average burden per collection: 10 minutes.

[[Page 44941]]

    Estimated total annual reporting and recordkeeping burden: 2,500 
hours.
    Title and Provision/Clause Number: 852.210-77, Brand Name or Equal.
    Summary of collection of information: This clause advises bidders 
or offerors who are proposing to offer an item that is alleged to be 
equal to the brand name item stated in the bid, that it is the bidder's 
or offeror's responsibility to show that the item offered is in fact, 
equal to the brand name item. This evidence may be in the form of 
descriptive literature or material, such as cuts, illustrations, 
drawings, or other information. While submission of the information is 
voluntary, failure to provide the information may result in rejection 
of the firm's bid or offer if the Government cannot otherwise determine 
that the item offered is equal.
    Description of need for information and proposed use of 
information: The information will be used by the contracting officer to 
evaluate whether or not the item offered meets the specification 
requirements.
    Description of likely respondents: Any firm offering an ``equal'' 
item on a solicitation requesting bids or offers on a ``brand name or 
equal'' basis.
    Estimated number of respondents: 10,000.
    Estimated frequency of responses: Once for each solicitation on 
which the firm is proposed an ``equal'' item.
    Estimated average burden per collection: 5 minutes.
    Estimated total annual reporting and recordkeeping burden: 833 
hours.
    The Department considers comments by the public on proposed 
collections of information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    OMB is required to make a decision concerning the proposed 
collection of information contained in this proposed rule between 30 
and 60 days after publication of this document in the Federal Register. 
Therefore, a comment to OMB is best assured of having its full effect 
if OMB receives it within 30 days of publication. This does not affect 
the deadline for the public to comment on the proposed regulation.

List of Subjects

48 CFR Parts 810, 811, and 812

    Government procurement.

48 CFR Parts 836 and 852

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 870

    Asbestos, Frozen foods, Government procurement, Telecommunications.

    Approved: August 8, 1997.
Hershel W. Gober,
Secretary-Designate of Veterans Affairs.

    For the reasons set forth in the preamble, and consistent with the 
authority in 38 U.S.C. 501 and 40 U.S.C. 486(c), 48 CFR Chapter 8 is 
proposed to be amended as follows:

PART 801--VETERANS AFFAIRS ACQUISITION REGULATIONS SYSTEM

    1. The authority citation for parts 812, 836, and 852 continues to 
read as follows:

    Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).

PART 810--[REMOVED]

    2. Part 810 is removed.
    3. Part 811 is added to read as follows:

PART 811--DESCRIBING AGENCY NEEDS

Sec.
811.001  Definitions.

Subpart 811.1--Selecting and Developing Requirements Documents

811.104  Items particular to one manufacturer.
811.104-70  Purchase descriptions.
811.104-71  Bid evaluation and award.
811.104-72  Procedure for negotiated procurements.

Subpart 811.2--Using and Maintaining Requirements Documents

811.202  Maintenance of standardization documents.
811.204  Solicitation provisions and contract clauses.

Subpart 811.4--Delivery or Performance Schedules

811.404  Contract clauses.

Subpart 811.5--Liquidated Damages

811.502  Policy.
811.504  Contract clauses.

Subpart 811.6--Priorities and Allocations

811.602  General.

    Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).


811.001   Definitions.

    (a) Brand name product means a commercial product described by 
brand name and make or model number or other appropriate nomenclature 
by which such product is offered for sale to the public by the 
particular manufacturer, producer or distributor.
    (b) Salient characteristics are those particular characteristics 
that specifically describe the essential physical and functional 
features of the material or service required. They are those essential 
physical or functional features which are identified in the 
specifications as a mandatory requirement which a proposed ``equal'' 
product or material must possess in order for the bid to be considered 
responsive. Bidders must furnish all descriptive literature and bid 
samples required by the solicitation to establish such ``equality''.

Subpart 811.1--Selecting and Developing Requirements Documents


 811.104  Items particular to one manufacturer.

    (a) Specifications shall be written in accordance with FAR 11.002 
unless otherwise justified by the specification writer and approved by 
the contracting officer as described in paragraph (b) of this section. 
The contract file shall be documented accordingly.
    (b) When it is determined that a particular physical or functional 
characteristic of only one product will meet the minimum requirements 
of the Department of Veterans Affairs (see FAR 11.104) or that a 
``brand name or equal'' purchase description will be used, the 
specification writer, whether agency personnel, architect-engineer, or 
consultant with which the Department of Veterans Affairs has 
contracted, shall separately identify the item(s) to the contracting 
officer and provide a full written justification of the reason the 
particular characteristic is essential to the Government's requirements 
or why the ``brand name or equal'' purchase description is necessary. 
The contracting officer shall make the final determination whether 
restrictive specifications or ``brand name or equal'' purchase 
descriptions will be included in the solicitation.
    (c) Purchase descriptions that contain references to one or more 
brand name products may be used only in accordance with 811.104-70, 
811.104-71, and 811.104-72. In addition,

[[Page 44942]]

purchase descriptions that contain references to one or more brand name 
products shall be followed by the words ``or equal,'' except when the 
acquisition is fully justified under FAR 6.3 and (VAAR) 48 CFR 806.3. 
Acceptable brand name products should be listed in the solicitation. 
Where a ``brand name or equal'' purchase description is used, 
prospective contractors must be given the opportunity to offer products 
other than those specifically referenced by brand name if such other 
products are determined by the Government to fully meet the salient 
characteristics listed in the invitation. The contract file will be 
documented in accordance with paragraph (b) of this section, justifying 
the need for use of a brand name or equal description.
    (d) ``Brand name or equal'' purchase descriptions shall set forth 
those salient physical, functional, or other characteristics of the 
referenced products which are essential to the minimum needs of the 
Government. For example, when interchangeability of parts is required, 
such requirement should be specified. Purchase descriptions shall 
contain the following information to the extent available and include 
such other information as is necessary to describe the item required:
    (1) Complete common generic identification of the item required;
    (2) Applicable model, make or catalog number for each brand name 
product referenced, and identity of the commercial catalog in which it 
appears; and
    (3) Name of manufacturer, producer or distributor of each brand 
name product referenced (and address if not well known).
    (e) When necessary to describe adequately the item required, an 
applicable commercial catalog description or pertinent extract may be 
used if such description is identified in the solicitation as being 
that of the particular named manufacturer, producer or distributor. The 
contracting officer will insure that a copy of any catalogs referenced 
(except parts catalogs) is available on request for review by bidders 
at the purchasing office.
    (f) Except as noted in paragraph (d) of this section, purchase 
descriptions shall not include either minimum or maximum restrictive 
dimensions, weights, materials or other salient characteristics which 
are unique to a brand name product or which would tend to eliminate 
competition or other products which are only marginally outside the 
restrictions. However, purchase description may include restrictive 
dimensions, weights, materials or other salient characteristic if such 
restrictions are determined in writing by the user to be essential to 
the Government's requirements, the brand name of the product is 
included in the purchase description, and all other determinations 
required by 811.104 are made.


811.104-70   Purchase descriptions.

    (a) When any purchase description, including a ``brand name or 
equal'' purchase description, is used in a solicitation for a supply 
contract to describe required items of mechanical equipment, the 
solicitation will include the clauses in 852.211-70 (Service Data 
Manual) and in 852.211-71 (Guarantee).
    (b) Solicitations using ``brand name or equal'' purchase 
descriptions will contain the ``brand name or equal'' clause in 
852.211-77, and the provision set forth at FAR 52.214-21, Descriptive 
Literature. Contracting officers are cautioned to review the 
requirements at FAR 14.202-5(d) when utilizing the descriptive 
literature provision.
    (c) Except as provided in 811.104-70(d), when a ``brand name or 
equal'' purchase description is included in an invitation for bids, the 
following shall be inserted after each item so described in the 
solicitation, for completion by the bidder:

Bidding on:

Manufacturer name------------------------------------------------------

Brand------------------------------------------------------------------

No.--------------------------------------------------------------------

    (d) (1) When component parts of an end item are described in the 
solicitation by a ``brand name or equal'' purchase description and the 
contracting officer determines that the clause in 811.104-70(b) is 
inapplicable to such component parts, the requirements of 811.104-70(c) 
shall not apply with respect to such component parts. In such cases, if 
the clause is included in the solicitation for other reasons, a 
statement substantially as follows also shall be included:

    The clause entitled ``Brand Name or Equal'' does not apply to 
the following component parts (list the component parts to which the 
clause does not apply): and

    (2) In the alternative, if the contracting officer determines that 
the clause in 811.104-70(b) shall apply to only certain such component 
parts, the requirements of 811.104-70(c) shall apply to such component 
parts and a statement substantially as follows also shall be included:

    The clause entitled ``Brand Name or Equal'' applies to the 
following component parts (list the component parts to which the 
clause applies):

    (e) When a solicitation contains ``brand name or equal'' purchase 
descriptions, bidders who offer brand name products, including 
component parts, referenced in such descriptions shall not be required 
to furnish bid samples of the referenced brand name products. However, 
solicitations may require the submission of bid samples in the case of 
bidders offering ``or equal'' products. If bid samples are required, 
the solicitation shall include the provision set forth at FAR 52.214-
20, Bid Samples. The bidder must still furnish all descriptive 
literature in accordance with and for the purpose set forth in the 
``Brand Name or Equal'' clause, 852.211-77(c)(1) and (2), even though 
bid samples may not be required.


811.104-71   Bid evaluation and award.

    (a) Bids offering products that differ from brand name products 
referenced in a ``brand name or equal'' purchase description shall be 
considered for award when the contracting officer determines in 
accordance with the terms of the clause at 852.211-77 that the offered 
products are clearly identified in the bids and are equal in all 
material respects to the products specified.
    (b) Award documents shall identify, or incorporate by reference, an 
identification of the specific products which the contractor is to 
furnish. Such identification shall include any brand name and make or 
model number, descriptive material, and any modifications of brand name 
products specified in the bid. Included in this requirement are those 
instances when the descriptions of the end items contain ``brand name 
or equal'' purchase descriptions of component parts or of accessories 
related to the end item, and the clause at 852.211-77 was applicable to 
such component parts or accessories (see 811.104-70(d)(2)).


811.104-72   Procedure for negotiated procurements.

    (a) The policies and procedures prescribed in 811.104-70 and 
811.104-71 should be used as a guide in developing adequate purchase 
descriptions for negotiated procurements.
    (b) The clause at 852.211-77 may be adapted for use in negotiated 
procurements. If use of the clause is not practicable (as may be the 
case in unusual and compelling urgency purchases), suppliers shall be 
suitably informed that proposals offering products different from the 
products referenced by brand name will be considered if the contracting 
officer

[[Page 44943]]

determines that such offered products are equal in all material 
respects to the products referenced.

Subpart 811.2--Using and Maintaining Requirements Documents


811.202  Maintenance of standardization documents.

    (a) Military and departmental specifications. Contracting officers 
may, when they deem it to be advantageous to the Department of Veterans 
Affairs, utilize these specifications when procuring supplies and 
equipment costing less than the simplified acquisition threshold. 
However, when purchasing items of perishable subsistence, contracting 
officers shall observe only those exemptions set forth in paragraphs 
(b)(3) and (b)(4) of this section.
    (b) Nutrition and food service specifications. (1) The Department 
of Veterans Affairs has adopted for use in the procurement of 
packinghouse products, the purchase descriptions and specifications set 
forth in the Institutional Meat Purchase Specifications (IMPS), and the 
IMPS General Requirements, which have been developed by the U.S. 
Department of Agriculture. Purchase descriptions and specifications for 
dairy products, poultry, eggs, fresh and frozen fruits and vegetables, 
as well as certain packinghouse products selected from the IMPS 
especially for Department of Veterans Affairs use, are contained in the 
Federal Hospital Subsistence Guide. A copy of this guide and the IMPS 
may be obtained from any Department of Veterans Affairs contracting 
officer.
    (2) Contract terms and conditions governing the procurement of 
subsistence items are listed in the Federal Hospital Subsistence Guide 
and IMPS. These provisions shall be made a part of each solicitation 
for such items when applicable.
    (3) The military specifications for meat and meat products 
contained in the Federal Hospital Subsistence Guide shall be used by 
the Department of Veterans Affairs only when purchasing such items of 
subsistence from the Defense Logistics Agency (DLA). Military 
specifications for poultry, eggs, and egg products contained in the 
Federal Hospital Subsistence Guide may be used when purchasing either 
from DLA or from local dealers.
    (4) Except as authorized in part 846 of this chapter, contracting 
officers shall not deviate from the specifications contained in the 
Federal Hospital Subsistence Guide and the IMPS without prior approval 
of the Deputy Assistant Secretary for Acquisition and Materiel 
Management.
    (5) Items of meat, cured pork and poultry not listed in either the 
Federal Hospital Subsistence Guide or the IMPS, will not be purchased 
without prior approval of the Deputy Assistant Secretary for 
Acquisition and Materiel Management.
    (c) Department of Veterans Affairs specifications. (1) The 
Director, Publications Service, is responsible for developing, 
publishing, and distributing Department of Veterans Affairs 
specifications covering printing and binding.
    (2) Department of Veterans Affairs specifications, as they are 
revised, are placed in stock in the VA Forms and Publications Depot. 
Facility requirements for these specifications will be requisitioned 
from that source.
    (d) Government paper specification standards. (1) Invitations for 
bids, requests for proposals, purchase orders, or other procurement 
instruments covering the purchase of paper stocks to be used in 
duplicating or printing, or which specify the paper stocks to be used 
in buying printing, binding, or duplicating, will require that such 
paper stocks be in accordance with the Government Paper Specification 
Standards issued by the Joint Committee on Printing of Congress.
    (2) All binding or rebinding of books, magazines, pamphlets, 
newspapers, slip cases and boxes will be procured in accordance with 
Government Printing Office (GPO) specifications and will be procured 
from the servicing GPO Regional Printing Procurement Office or, when 
appropriate, from commercial sources.
    (3) There are three types of binding/rebinding:
    (i) Class A (hard cover);
    (ii) Perfect (glued); and
    (iii) Lumbinding (sewn). The most suitable type of binding will be 
procured to satisfy the requirements, based upon the intended use of 
the bound material.


811.204   Solicitation provisions and contract clauses.

    Specifications. When product specifications are cited in an 
invitation for bids or requests for proposals, the citation shall 
include desired options and shall conform to the following:

    Shall be type__________, grade __________, in accordance with 
(type of specification) No. __________, dated __________ and 
amendment __________ dated __________ except paragraphs __________ 
and __________ which are amended as follows:

Subpart 811.4--Delivery or Performance Schedules


811.404  Contract clauses.

    When delivery is required by or on a particular date, the time of 
delivery clause set forth in FAR 52.211-8 as it relates to f.o.b. 
destination contracts will state that the delivery date specified is 
the date by which the shipment is to be delivered, not the shipping 
date. In f.o.b. origin contracts, the clause will state that the date 
specified is the date shipment is to be accepted by the carrier.

Subpart 811.5--Liquidated Damages


811.502  Policy.

    Liquidated damages provisions will not be routinely included in 
supply or construction contracts, regardless of dollar amount. The 
decision to include liquidated damages provisions will conform to the 
criteria in FAR 11.502. In making this decision, consideration will be 
given to whether the necessity for timely delivery or performance as 
required in the contract schedule is so critical that a probable 
increase in contract price is justified. Liquidated damages provisions 
will not be included as insurance against selection of a non-
responsible bidder, as a substitute for efficient contract 
administration, or as a penalty for failure to perform on time.


811.504  Contract clauses.

    When the liquidated damages clause prescribed in FAR 52.211-11 or 
52.211-12 is to be used and where partial performance may be utilized 
to the advantage of the Government, the clause in 852.211-78 will be 
included in the contract.

Subpart 811.6--Priorities and Allocations


811.602  General.

    (a) Priorities and allocations of critical materials are controlled 
by the Department of Commerce. Essentially, such priorities and 
allocations are restricted to projects having a direct connection with 
supporting current defense needs. The Department of Veterans Affairs is 
not authorized to assign a priority rating to its purchase orders or 
contracts involving the acquisition or use of critical materials.
    (b) In those instances where it has been technically established 
that it is not feasible to use a substitute material, the Department of 
Commerce has agreed to assist us in obtaining critical materials for 
maintenance and repair projects. They will also, where possible, render 
assistance in connection with the purchase of new items, which may be 
in

[[Page 44944]]

short supply because of their use in connection with the defense 
effort.
    (c) Contracting officers having problems in acquiring critical 
materials will ascertain all the facts necessary to enable the 
Department of Commerce to render assistance to the Department of 
Veterans Affairs in acquiring these materials. The contracting officer 
will submit a request for assistance containing the following 
information to the Deputy Assistant Secretary for Acquisition and 
Materiel Management (90):
    (1) A description of the maintenance and repair project or the new 
item, whichever is applicable;
    (2) The critical material and the amount required;
    (3) The contractor's sources of supply, including any addresses. If 
the source is other than the manufacturer or producer, also list the 
name and address of the manufacturer or producer;
    (4) The Department of Veterans Affairs contract or purchase order 
number;
    (5) The contractor's purchase order number, if known, and the 
delivery time requirement as stated in the solicitation or offer;
    (6) The additional time the contractor claims will be necessary to 
effect delivery if priority assistance is not provided;
    (7) The nature and extent of the emergency that will be generated 
at the station, e.g.,
    (i) Damage to the physical plant,
    (ii) Impairment of the patient care program,
    (iii) Creation of safety hazards, and
    (iv) Any other pertinent condition that will result because of 
failure to secure assistance in obtaining the critical materials; and
    (8) If applicable, a statement that the item required is for use in 
a construction contract which was authorized by the Chief Facilities 
Management Officer, Office of Facilities Management, to be awarded and 
administered by the facility contracting officer.
    4. Part 812 is revised to read as follows:

PART 812--ACQUISITION OF COMMERCIAL ITEMS

Subpart 812.3--Solicitation Provisions and Contract Clauses for the 
Acquisition of Commercial Items


812.301   Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    (a) Notwithstanding prescriptions contained elsewhere in this 
chapter, when acquiring commercial items, contracting officers shall be 
required to use only those provisions and clauses prescribed in this 
part.
    (b) The provision and clause in the following VAAR sections shall 
be used, in accordance with the prescriptions contained therein or 
elsewhere in this chapter, in requests for quotations, solicitations, 
or contracts for the acquisition of commercial items:
    (1) 852.219-70, Veteran-owned small business.
    (2) 852.270-4, Commercial advertising.
    (c) The provisions and clauses in the following VAAR sections shall 
be used, when appropriate, in accordance with the prescriptions 
contained therein or elsewhere in this chapter, in requests for 
quotations, solicitations, or contracts for the acquisition of 
commercial items:
    (1) 852.211-71, Guarantee clause.
    (2) 852.211-72, Inspection.
    (3) 852.211-73, Frozen processed foods.
    (4) 852.211-74, Telecommunications equipment.
    (5) 852.211-75, Technical industry standards.
    (6) 852.214-70, Caution to bidders-bid envelopes.
    (7) 852.216-70, Estimated quantities for requirements contracts.
    (8) 852.229-70, Purchases from patient's funds.
    (9) 852.229-71, Purchases for patients using Government funds and/
or personal funds of patients.
    (10) 852.233-70, Protest content.
    (11) 852.237-70, Contractor responsibilities.
    (12) 852.237-71, Indemnification and insurance (vehicle and 
aircraft service contracts).
    (13) 852.270-1, Representatives of contracting officers.
    (14) 852.270-2, Bread and bakery products.
    (15) 852.270-3, Purchase of shell fish.
    (d) The clauses in the following VAAR sections shall be used, when 
appropriate, in accordance with the prescriptions contained therein or 
elsewhere in this chapter, in requests for quotations, solicitations, 
or contracts for the acquisition of commercial items, provided the 
contracting officer determines that use of the clauses is consistent 
with customary commercial practices.
    (1) 852.211-70, Requirements for operating and maintenance manuals.
    (2) 852.211-77, Brand name or equal.
    (e) The contracting officer shall insert the clause in 852.271-70, 
Services provided eligible beneficiaries, by reference, in all requests 
for quotations, solicitations, and contracts meeting the prescription 
contained therein.
    (f) Clauses are not required for micro-purchases using the 
procedures of this part or part 813. However, this does not prohibit 
the use of any clause prescribed in this part or elsewhere in this 
chapter in micro-purchases when determined by the contracting officer 
to be in the Government's best interest.


812.302   Tailoring of provisions and clauses for the acquisition of 
commercial items.

    Agency procedures for approval of waivers: Waivers to tailor 
solicitations in a manner that is inconsistent with customary 
commercial practice shall be prepared by contracting officers in 
accordance with FAR 12.302(c). Waiver requests shall be submitted to 
the contracting officer's next higher level supervisor for approval. 
Approved requests shall be retained in the contract file.

PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS


836.202  [Amended]

    5. In part 836, Sec. 836.202(a) is amended by removing ``part 810'' 
and adding, in its place, ``part 811''.


836.206  [Amended]

    6. In part 836, Sec. 836.206 is amended by removing ``812.202'' and 
adding, in its place, ``811.502''; by removing ``852.212-70'' and 
adding, in its place, ``852.211-78''; and by removing ``52.212-5'' and 
adding, in its place, ``52.211-12''.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    7. Part 852 is amended by redesignating the following sections as 
set forth below:


------------------------------------------------------------------------
                        Old section                          New section
------------------------------------------------------------------------
852.210-70................................................    852.211-70
852.210-71................................................    852.211-71
852.210-72................................................    852.211-72
852.210-73................................................    852.211-73
852.210-74................................................    852.211-74
852.210-75................................................    852.211-75
852.210-76................................................    852.211-76
------------------------------------------------------------------------

852.210-77  [Redesignated as 852.211-77]

    8. In part 852, Sec. 852.210-77 is redesignated as Sec. 852.211-77 
and the introductory text is amended by removing ``810.004'' and 
adding, in its place, ``811.104''.


852.212-70  [Redesignated as 852.211-78]

    9. In part 852, Sec. 852.212-70 is redesignated as Sec. 852.211-78, 
and the introductory text is amended by

[[Page 44945]]

removing ``812.204'' and adding, in its place, ``811.504''.


852.219-70  [Amended]

    10. In part 852, Sec. 852.219-70 introductory text is amended by 
removing ``819.7003(a)'' and adding, in its place, ``819.7003(b)''.


852.229-70  [Amended]

    11. In part 852, Sec. 852.229-70 introductory text is amended by 
adding ``or, if the contract is for commercial items, in lieu of 
paragraph (k), Taxes, in FAR clause 52.212-4'' immediately after ``in 
FAR 52.229-1''.


852.229-71  [Amended]

    12. In part 852, Sec. 852.229-71 introductory text is amended by 
adding ``or, if the contract is for commercial items, as an addendum to 
FAR clause 52.212-4'' immediately after ``in FAR 52.229-1''.


852.271-70  [Amended]

    13. In part 852, Sec. 852.271-70 is amended by removing ``Chief 
Medical Director'' and adding, in its place, ``Under Secretary for 
Health''.

PART 870--SPECIAL PROCUREMENT CONTROLS

    14. The authority citation for part 870 is revised to read as 
follows:

    Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).


870.112  [Amended]

    15. In part 870, Sec. 870.112, paragraph (a) is amended by removing 
``852.210-74'' and adding, in its place, ``852.211-74'', Footnote 1 is 
amended by removing ``Veterans Administration'' and adding, in its 
place, ``Department of Veterans Affairs'', paragraph (b) is amended by 
removing ``852.210-74'' and adding, in its place, ``852.211-74'', by 
removing ``the Office of Information Resources Operations'' and adding, 
in its place, ``Telecommunications Support Service''; by removing 
``(93)'' each time it appears in paragraphs (b) and (c)(1) and adding, 
in its place, ``, Acquisition Administration Team''.

[FR Doc. 97-21869 Filed 8-22-97; 8:45 am]
BILLING CODE 8320-01-P