[Federal Register Volume 63, Number 61 (Tuesday, March 31, 1998)]
[Rules and Regulations]
[Pages 15318-15320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8004]


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DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 833 and 852

RIN 2900-AI51


VA Acquisition Regulations: Department Protests

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
Acquisition Regulations (VAAR) to delete coverage that 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 implement VA policy and 
are required to ensure that the VAAR corresponds with the requirements 
of the Federal Acquisition Regulation and public law.

DATES: Effective Date: April 30, 1998.

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: On September 9, 1997, we published in the 
Federal Register (62 FR 47411) a proposal to amend the Department of 
Veterans Affairs Acquisition Regulations to make changes relating to 
Department protests. Comments were solicited concerning the proposal 
for 60 days, ending November 10, 1997. We did not receive any comments. 
The information presented in the proposed rule document still provides 
a basis for this final rule. Therefore, based on the rationale set 
forth in the proposed rule document, we are adopting the provisions of 
the proposed rule as a final rule with no changes, except for 
nonsubstantive changes to reflect the date of this final rule for each 
clause and to provide a new clause number for one of the clauses 
included in the rule.
    The Secretary hereby certifies that this final 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 rule will have minuscule effect, if any, on small 
businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is 
exempt from the initial and final regulatory flexibility analysis 
requirements of sections 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: March 18, 1998.
Togo D. West, Jr.,
Acting Secretary.

    For the reasons set forth in the preamble, 48 CFR parts 833 and 852 
are amended as follows:
    1. The authority citation for parts 833 and 852 continues to read 
as follows:

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

PART 833--PROTESTS, DISPUTES, APPEALS

Subpart 833.1--Protests


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''.
    3. In Sec. 833.103, paragraph (a)(1) is revised to read as follows:


Sec. 833.103  Protests to the Department.

    (a) Filing of protests. (1) An interested party may protest to the 
contracting officer or, as an alternative, may request an independent 
review by filing a protest with the Deputy Assistant Secretary for 
Acquisition and Materiel Management, Acquisition Administration Team, 
or, for solicitations issued by the Office of Facilities Management, 
the Chief Facilities Management Officer, Office of Facilities 
Management. 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

[[Page 15319]]

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 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 contracting officer's protest 
decision. An interested party may request an independent review of a 
contracting 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

[[Page 15320]]

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 follows:


Sec. 852.233-70  Protest content.

    As prescribed in 833.106 of this chapter, 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 (Jan 1998)

    (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
    (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 of this chapter, 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 (Jan 1998)

    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. 98-8004 Filed 3-30-98; 8:45 am]
BILLING CODE 8320-01-P