[Federal Register Volume 62, Number 174 (Tuesday, September 9, 1997)]
[Proposed Rules]
[Pages 47411-47414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23753]


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DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 833 and 852

RIN 2900-AI51


VA Acquisition Regulation: Department Protests

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans 
Affairs (VA) Acquisition Regulations (VAAR) to delete coverage which 
duplicates or conflicts with the Federal Acquisition Regulation; to 
delete internal agency guidance to contracting officers; to delete 
obsolete references to the General Services Administration Board of 
Contract Appeals; to incorporate changes made by Federal Acquisition 
Circular (FAC) 90-40, Item XIII and FAC 90-45, Item XII; to publish VA 
policy regarding the availability of staff of the VA Board of Contract 
Appeals to serve as third party neutrals in alternative dispute 
resolution proceedings; and to update clauses and references. These 
changes will implement VA policy and are required to ensure that the 
VAAR corresponds with the requirements of the Federal Acquisition 
Regulation and public law.

DATES: Comments must be received on or before November 10, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Avenue, NW, Room 1154, Washington, DC 20420. Comments should 
indicate that they are submitted in response to ``RIN: 2900-AI51.'' 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 Avenue, NW, Washington DC 20420, (202) 
273-8819.

SUPPLEMENTARY INFORMATION: As provided by Public Law 104-106, the 
Clinger-Cohen Act of 1996, the General Services Administration Board of 
Contract Appeals (GSBCA) no longer hears bid protests. Therefore, 
obsolete references to the GSBCA would be removed from the VAAR.
    This proposed rule would clarify an existing VA procedure in 
833.103(a), which allows an interested party to file

[[Page 47412]]

an initial protest at a level above the contracting officer, and, as 
required by FAR 33.103(d)(4), would add new clause 852.233-71, 
Alternate Protest Procedure, to inform bidders/offerors of the 
availability of this alternate protest procedure. This is one of the 
two methods discussed in FAR 33.103(d)(4) for providing an independent 
review of a protest. In addition, existing Department procedures for 
appealing a contracting officer's protest decision, which is the other 
method discussed in FAR 33.103(d)(4) for providing an independent 
review of a protest, would be clarified and relocated from 833.103(c) 
to new paragraph 833.103(f). Material in 833.103(c) which is internal 
agency guidance to contracting officers would be removed from the VAAR.
    It is current VA practice to make available the administrative 
judges and hearing examiners of the VA Board of Contract Appeals 
(VABCA) to serve as neutral third parties when alternative dispute 
resolution (ADR) methods are used to resolve potential or actual 
contract disputes and appeals. This practice would be codified in VAAR 
at 833.214. In addition, as provided at FAR 33.103(c), this practice 
would be extended to bid protests at 833.103(b) and would make the 
administrative judges and hearing examiners of VABCA available to serve 
as neutral third parties when ADR is used to resolve bid protests.
    This proposed rule would renumber current paragraph 833.103(b) as 
833.103(c) and would make changes to the paragraph to comply with the 
requirements of FAR 33.103 (f)(1) and (f)(3). FAR paragraphs 33.103 
(f)(1) and (f)(3) require that a justification or determination to 
award a contract or to continue contract performance after receipt of a 
protest shall be approved at a level above the contracting officer or 
by another official pursuant to agency procedures. Proposed paragraph 
833.103(c) would revise and clarify who that approving official is 
within VA.
    Paragraph 833.103(e) currently provides guidance to contracting 
officers on actions to take upon receipt of a protest after a contract 
has been awarded. FAR 33.103(f)(3) was recently revised to provide new 
guidelines on when a contract must be suspended upon receipt of a 
protest. This proposed rule would revise 833.103(e) to conform VAAR to, 
and comply with, these new requirements of FAR 33.103(f)(3).
    VA provision 852.233-70, Protest Content, would be updated to 
conform to FAR 33.103(d)(2); VA clause 852.233-71, Alternate Protest 
Procedure, would be added to comply with the requirements of FAR 
33.103(d)(4); and VA clause 852.236-73, Bonds, which duplicates new FAR 
clause 52.228-15, Performance and Payment Bonds, Construction, would be 
deleted.
    This proposed rule would also update or change names and titles and 
make other minor clarifications.
    The Secretary hereby certifies that this proposed rule would 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. This proposed rule would have a minuscule effect, if 
any, on small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this 
proposed rule is exempt from the initial and final regulatory 
flexibility analysis requirements of Secs. 603 and 604.

List of Subjects

48 CFR Part 833

    Administrative practices and procedure, Government procurement.

48 CFR Part 852

    Government procurement, Reporting and recordkeeping.

    Approved: August 27, 1997.
Hershel W. Gober,
Acting Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, 48 CFR parts 833 and 852 
are proposed to be amended as follows:

PART 833--PROTESTS, DISPUTES, APPEALS

Subpart 833.1--Protests

    1. The authority citation for parts 833 and 852 continue to read as 
follows:

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


Sec. 833.102  [Amended]

    2. Section 833.102 introductory text is amended by removing 
``852.233-2'' and adding, in its place, ``FAR provision 52.233-2''. It 
is further amended by removing ``or the GSA Board of Contract Appeals 
(GSBCA)''; and paragraph (b) is amended by removing ``(95B)'' and 
adding, in its place, ``, Acquisition Administration Team''.


Sec. 833.103  [Amended]

    3. In Sec. 833.103, paragraph (a)(1) is amended by removing ``,'' 
immediately following ``contracting officer'' and adding, in its place, 
``or, as an alternative, may request an independent review by filing a 
protest with''; by removing ``Review Division, or'' and adding, in its 
place, ``Administration Team, or, for solicitations issued by the 
Office of Facilities Management,''; by removing ``, as appropriate''; 
and by adding at the end of the paragraph ``A protest filed with the 
Deputy Assistant Secretary for Acquisition and Materiel Management or 
the Chief Facilities Management Officer will not be considered if the 
interested party has a protest on the same or similar issues pending 
with the contracting officer.''
    4. In Sec. 833.103, paragraph (a)(2)(ii) is amended by removing 
``Review Division'' and adding, in its place, ``Administration Team''; 
paragraphs (a)(3) and (a)(4) are removed; paragraph (a)(5) is 
redesignated as paragraph (a)(3); newly redesignated paragraph 
(a)(3)(vi) is removed; paragraphs (a)(3)(vii) through (a)(3)(ix) are 
redesignated as paragraphs (a)(3)(vi), through (a)(3)(viii), 
respectively.
    5. In Sec. 833.103, paragraph (c) is removed; paragraph (b) is 
redesignated as a new paragraph (c) and is revised and a new paragraph 
(b) is added to read as follows:


Sec. 833.103  Protests to the Department.

* * * * *
    (b) Where appropriate, alternative dispute resolution (ADR) 
procedures may be used to resolve protests at any stage in the protest 
process. The Department of Veterans Affairs Board of Contract Appeals 
(VABCA) is an independent and neutral entity within the Department of 
Veterans Affairs and is available to serve as the third party neutral 
(Neutral) for bid protests. If ADR is used, the Department of Veterans 
Affairs will not furnish any documentation in an ADR proceeding beyond 
what is allowed by the Federal Acquisition Regulation.
    (c) Action upon receipt of protest. For protests filed with the 
contracting officer, the head of the contracting activity (HCA) shall 
be the approving official for the determinations identified in FAR 
33.103(f)(1) and (f)(3). If the HCA is also the contracting officer, 
the approving official shall be the Deputy Assistant Secretary for 
Acquisition and Materiel Management. For protests filed with the Deputy 
Assistant Secretary for Acquisition and Materiel Management, 
Acquisition Administration Team, or the Chief Facilities Management 
Officer, Office of Facilities Management, those individuals shall be 
the approving officials for the determinations identified in FAR 
33.103(f)(1) and (f)(3).
* * * * *
    6. In Sec. 833.103, paragraph (d) is amended by removing ``lodged'' 
and adding, in its place, ``filed''; by removing ``he/she'' each time 
it appears and adding, in its place, ``the contracting officer''; by 
removing ``Review Division'' and adding, in its

[[Page 47413]]

place, ``Administration Team''; and by removing ``officer will'' and 
adding, in its place, ``officer shall''.
    7. In Sec. 833.103, paragraph (e) is revised and paragraph (f) is 
added to read as follows:


Sec. 833.103  Protests to the Department.

* * * * *
    (e) Protest after award. When a written protest is filed with the 
contracting officer after contract award:
    (1) If FAR 33.103(f)(3) requires suspension of contract 
performance, the contracting officer shall seek to obtain a mutual 
agreement with the contractor to suspend performance on a no-cost basis 
and, if successful, shall document the suspension with a supplemental 
agreement. If unsuccessful, the contracting officer shall issue a stop-
work order in accordance with contract clause FAR 52.233-3, Protest 
After Award.
    (2) If suspension of contract performance is not required by FAR 
33.103(f)(3) and if the contracting officer determines that the award 
was proper, the contracting officer shall furnish the protester a 
written explanation of the basis for the award which is responsive to 
the allegations of the protest. The contracting officer shall advise 
the protester that the protester may appeal the determination to the 
Deputy Assistant Secretary for Acquisition and Materiel Management, 
Acquisition Administration Team, or the Chief Facilities Management 
Officer, Office of Facilities Management, in the case of a contract 
awarded by the Office of Facilities Management, or the Comptroller 
General, as specified in internal Department guidance.
    (3) If suspension of contract performance is not required by FAR 
33.103(f)(3) but the contracting officer determines that the award is 
questionable, the contracting officer may consult with the Office of 
the General Counsel (025) and shall advise the contractor of the 
protest and invite the contractor to submit comments and relevant 
information. The contracting officer shall submit the case promptly to 
the Deputy Assistant Secretary for Acquisition and Materiel Management, 
Acquisition Administration Team, or the Chief Facilities Management 
Officer, Office of Facilities Management, in the case of a contract 
awarded by the Office of Facilities Management, who may consult with 
the Office of the General Counsel (025) and who shall either advise the 
contracting officer of the appropriate action to take, or submit the 
case to the Comptroller General for a decision. The contracting officer 
shall provide interested parties with a copy of the final decision.
    (f) Agency appellate review of contacting officer's protest 
decision. An interested party may request an independent review of a 
contacting officer's protest decision by filing an appeal with the 
Deputy Assistant Secretary for Acquisition and Materiel Management or, 
for solicitations issued by the Office of Facilities Management, with 
the Chief Facilities Management Officer, Office of Facilities 
Management. To be considered timely, the appeal must be received by the 
Deputy Assistant Secretary for Acquisition and Materiel Management or, 
for solicitations issued by the Office of Facilities Management, by the 
Chief Facilities Management Officer, Office of Facilities Management, 
within 10 calendar days of the date the interested party knew, or 
should have known, whichever is earlier, of the basis for the appeal. 
Appeals shall be addressed as provided in paragraphs (a)(2)(ii) or 
(iii) of this section. Appeals shall not extend GAO's timeliness 
requirements for appeals to GAO. By filing an appeal as provided 
herein, an interested party may waive its rights to further appeal to 
the Comptroller General at a later date. Agency responses to appeals 
submitted to the agency shall be reviewed and concurred in by the 
Office of the General Counsel (025).


Sec. 833.105  [Removed]

    8. Section 833.105 is removed.
    9. Section 833.106 is revised to read as follows:


Sec. 833.106  Solicitation provision.

    (a) The contracting officer shall insert the provision at 852.233-
70, Protest Content, in each solicitation where the total value of all 
contract awards under the solicitation is expected to exceed the 
simplified acquisition threshold.
    (b) The contracting officer shall insert the provision at 852.233-
71, Alternate Protest Procedure, in each solicitation where the total 
value of all contract awards under the solicitation is expected to 
exceed the simplified acquisition threshold.

Subpart 833-2--Disputes and Appeals

    10. Section 833.214 is added to read as follows:


Sec. 833.214  Alternative dispute resolution (ADR).

    (a) Contracting officers and contractors are encouraged to use 
alternative dispute resolution (ADR) procedures to resolve contract 
disputes before they become appealable disputes by using the Department 
of Veterans Affairs' ADR Program.
    (b) Under the Department's ADR Program, the Department of Veterans 
Affairs Board of Contract Appeals (VABCA or Board) Chair, who is the 
Department's Dispute Resolution Specialist, will appoint a Board member 
or hearing examiner (at no cost to either party) to serve as a Neutral 
to aid in resolving matters before they become appealable disputes. The 
administrative judges and hearing examiners are trained Neutrals and 
are available to assist in ADR proceedings.
    (c) Under the ADR Program, the parties are able to select the ADR 
process they believe will help resolve the matter. Everything discussed 
during the ADR meeting is confidential. In the event a Board member 
serves as a Neutral in a matter that is not resolved using ADR, that 
Board member shall keep all discussions confidential and shall have no 
further input or contact with the parties or other Board members in 
subsequent Board activities (ref. the Administrative Dispute Resolution 
Act, 5 U.S.C. 571-583; and, Federal Acquisition Regulation, Subpart 
33.2).
    (d) The Department of Veterans Affairs and contractors are also 
encouraged to use ADR in disputes appealed to the VABCA.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 852.2--Texts of Provisions and Clauses

    11. Section 852.233-70 is revised to read as follow:


Sec. 852.233-70  Protest content.

    As prescribed in 833.106, insert the following provision in each 
solicitation where the total value of all contract awards under the 
solicitation is expected to exceed the simplified acquisition 
threshold:

PROTEST CONTENT (XXX 1997)

    (a) Any protest filed by an interested party shall:
    (1) Include the name, address, fax number, and telephone number 
of the protester;
    (2) Identify the solicitation and/or contract number;
    (3) Include an original signed by the protester or the 
protester's representative, and at least one copy;
    (4) Set forth a detailed statement of the legal and factual 
grounds of the protest, including a description of resulting 
prejudice to the protester, and provide copies of relevant 
documents;
    (5) Specifically request a ruling of the individual upon whom 
the protest is served;
    (6) State the form of relief requested; and

[[Page 47414]]

    (7) Provide all information establishing the timeliness of the 
protest.
    (b) Failure to comply with the above may result in dismissal of 
the protest without further consideration.

(End of Provision)

    12. Section 852.233-71 is added to read as follows:


Sec. 852.233-71  Alternate Protest Procedure.

    As prescribed in 833.106, insert the following provision in each 
solicitation where the total value of all contract awards under the 
solicitation is expected to exceed the simplified acquisition 
threshold:

ALTERNATE PROTEST PROCEDURE (XXX 1997)

    As an alternative to filing a protest with the contracting 
officer, an interested party may file a protest with the Deputy 
Assistant Secretary for Acquisition and Materiel Management, 
Acquisition Administration Team, Department of Veterans Affairs, 810 
Vermont Avenue, NW, Washington, DC, 20420, or, for solicitations 
issued by the Office of Facilities Management, the Chief Facilities 
Management Officer, Office of Facilities Management, 810 Vermont 
Avenue, NW, Washington, DC 20420. The protest will not be considered 
if the interested party has a protest on the same or similar issues 
pending with the contracting officer.


Sec. 852.236-73  [Removed]

    13. Section 852.236-73 is removed.
[FR Doc. 97-23753 Filed 9-8-97; 8:45 am]
BILLING CODE 8320-01-U