[Federal Register Volume 82, Number 94 (Wednesday, May 17, 2017)]
[Proposed Rules]
[Pages 22635-22642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09158]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 801, 802, 803, 812, 814, 822, and 852
RIN 2900-AP50
Revise and Streamline VA Acquisition Regulation To Adhere to
Federal Acquisition Regulation Principles (VAAR Case 2014-V001)
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
and update its VA Acquisition Regulation (VAAR). Under this initiative
all parts of the regulation are being reviewed in phased increments to
revise or remove any policy that has been superseded by changes in the
Federal Acquisition Regulation (FAR), to remove any procedural guidance
that is internal to the VA, and to incorporate any new regulations or
policies
Acquisition regulations become outdated over time and require
updating to incorporate additional policies, solicitation provisions,
or contract clauses that implement and supplement the FAR to satisfy VA
mission needs, and to incorporate changes in dollar and approval
thresholds, definitions, and VA position titles and offices. This
Proposed Rule will correct inconsistencies, remove redundant and
duplicate material already covered by the FAR, delete outdated material
or information, and appropriately renumber VAAR text, clauses and
provisions where required to comport with FAR format, numbering and
arrangement.
This Proposed Rule will streamline the VAAR to implement and
supplement the FAR only when required, and remove internal agency
guidance as noted above in keeping with the FAR principles concerning
agency acquisition regulations.
DATES: Comments must be received on or before July 17, 2017 to be
considered in the formulation of the final rule.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to Director, Regulation
Policy and Management (00REG), Department of Veterans Affairs, 810
Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202)
273-9026. Comments should indicate that they are submitted in response
to ``RIN 2900-AP50--Revise and Streamline VA Acquisition Regulation to
Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-
V001--parts 801, 802, 803, 812, 814, 822, and 852).'' Copies of
comments received will be available for public inspection in the Office
of Regulation Policy and Management, Room 1068, between the hours of
8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays).
Please call (202) 461-4902 for an appointment. This is not a toll-free
number. In addition, during the comment period, comments may be viewed
online through the Federal Docket Management System (FDMS) at
www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Ricky L. Clark, Senior Procurement
Analyst, Procurement Policy and Warrant Management Services, 003A2A,
425 I Street NW., Washington, DC 20001, (202) 632-5276. This is not a
toll-free telephone number.
SUPPLEMENTARY INFORMATION:
Background
This action is being taken under the authority of the Office of
Federal Procurement Policy Act which provides the authority for an
agency head to authorize the issuance of agency acquisition regulations
that implement or supplement the FAR. This authority ensures that
Government procurements are handled fairly and consistently, that the
Government receives overall best value, and that the Government and
contractors both operate under a known set of rules.
The Proposed Rule updates the VAAR to current FAR titles,
requirements, and definitions; it updates VA titles and offices; it
corrects inconsistencies, removes redundancies and duplicate material
already covered by the FAR; it deletes outdated material or information
and appropriately renumbers VAAR text and clauses and provisions where
required to comport with FAR format, numbering and arrangement. All
amendments, revisions, and removals have been peer reviewed and
concurred with by an Integrated Product Team of agency stakeholders.
The VAAR uses the regulatory structure and arrangement of the FAR
and headings and subject areas are broken up consistent with the FAR
content. The VAAR is divided into subchapters, parts (each of which
covers a separate aspect of acquisition), subparts, sections, and
subsections.
The Office of Federal Procurement Policy Act provides the authority
for the Federal Acquisition Regulation and for the issuance of Agency
Acquisition regulations consistent with the FAR.
When Federal agencies acquire supplies and services using
appropriated funds, the purchase is governed by the FAR, set forth at
Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through
53, and the agency regulations that implement and supplement the FAR.
The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873.
These authorities are designed to ensure that Government procurements
are handled fairly and consistently, that the Government receives
overall best value, and that the Government and contractors both
operate under a known set of rules.
VA is proposing to revise the VAAR to add new policy or regulatory
requirements and to remove any guidance that is applicable only to VA's
internal operating processes or procedures. Codified acquisition
regulations may be amended and revised only through formal rulemaking
under the Office of Federal Procurement Policy Act. 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.
This proposed rule will generally be small business neutral. VA has
examined the economic, interagency, budgetary, legal, and policy
implications of this regulatory action, and it has been determined this
rule is not a significant regulatory action.
Discussion and Analysis
VA proposes to make the following changes to the VAAR in this phase
of its revision and streamlining initiative. For procedural guidance
cited below that is proposed to be deleted from the VAAR, each section
cited for removal is being considered for inclusion in VA's internal
agency operating procedures in accordance with FAR 1.301(a)(2).
Similarly, delegations of authorities that are removed from the VAAR
will be included in the VA Acquisition Manual (VAAM) as internal agency
guidance.
We propose to revise the main parts reflected in the title of the
case: VAAR parts 803, 814, and 822, as well as revisions to affected
parts as a result of those changes: VAAR parts 801, 802, 812, and 852.
We propose to revise the authority citations under Parts 801, 802,
803, 812, 814, 822, and 852 to include a reference to 41 U.S.C.
1121(c)(3) which is from Title 41, Public Contracts, Positive Law
codification that speaks to the authority of an executive agency under
another law to prescribe policies, regulations, procedures, and forms
for procurement that are subject to the authority conferred in the
cited section, as well as other sections of Title 41 as shown therein.
Any other proposed changes to
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authorities are shown under the individual parts below.
VAAR Part 801--Department of Veterans Affairs Acquisition Regulation
System
This proposed rule removes an information collection burden
previously included in the VAAR based on an outdated practice in
providing bid envelopes. In section 801.106, OMB approval under the
Paperwork Reduction Act, we propose to remove and discontinue the
Office of Management and Budget (OMB) control number 2900-0593, clause
852.214-70, as well as its prescription at 814.201-6(a), since sealed
bids are solicited through the Governmentwide Point of Entry (GPE) and
are largely submitted electronically rather than through the U.S. mail,
thereby making the optional practice of providing bidders with envelops
and return address label unnecessary.
VAAR Part 802--Definitions of Words and Terms
In section 802.101, Definitions, we propose to add two new
definitions to define two key terms used within the revised VAAR part
803, Improper Business Practices and Personal Conflicts of Interests,
dealing with debarment and suspensions and that will be applicable when
referenced in the future in other VAAR parts: Debarment and Suspension
Committee and Suspension and Debarring Official. These are necessary to
ensure a clear understanding of the meaning of these terms and who is
designated as the Suspension and Debarring Official (SDO).
VAAR Part 803--Improper Business Practices and Personal Conflicts of
Interest
We propose to clarify the language regarding the prohibition of
contractors from making reference in their commercial advertising
regarding VA contracts to avoid implying that the Government approves
or endorses products or services. We propose to add a requirement that
contracting officers require contractors and subcontractors at any tier
to obtain signed non-disclosure statements from covered personnel.
In subpart 803.1, Safeguards, we propose the remove and reserve the
entire subpart for the reasons stated in the sections below which fall
under the subpart. We propose to remove section 803.101, Standards of
conduct, since it contains procedural guidance and a delegation of
authority that is internal to the VA and will be in the VAAM.
We propose to remove section 803.101-3, Department regulations,
since it contains information on standards of conduct and financial
disclosure for VA employees and is internal procedural guidance that is
internal to the VA and will be in the VAAM.
We propose to remove section 803.104, Procurement integrity, and
section 803.104-7, Violations or possible violations, since they
contain procedural guidance and a delegation of authority that is
internal to the VA and will be in the VAAM. We propose to remove
subsection 803.104-7, Violations or possible violations since it also
contains procedural guidance and a delegation of authority that is
internal to the VA and will be in the VAAM.
In subpart 803.2, Contractor Gratuities to Government Personnel, we
are proposing to update the policy governing improper business
practices and personal conflicts of interests to make the agency's
policies clear, to provide notice of due process rights and to
establish who in the agency determines whether or not a violation of
the Gratuities clause has occurred and what procedures are followed
when the Suspension and Debarring Official (SDO) makes that decision.
In section 803.204, we propose to remove portions of section
803.204, Treatment of violations, which contain procedural guidance and
a delegation of authority that is internal to the VA and will be moved
to the VAAM. To ensure contractors are apprised of their rights, we
propose to revise section 803.204 to add the responsibility of the
Suspension and Debarring Official (SDO) for determining whether or not
a violation of the Gratuities clauses has occurred and what action will
be taken, as well as a paragraph that states that when the SDO
determines that a violation has occurred and that debarment is being
considered, the SDO shall follow the requirements at VAAR 809.406-3.
In subpart 803.3, Reports of Suspected Antitrust Violations, we
propose to remove section 803.303, Reporting suspected antitrust
violations, since it contains guidance to VA employees that is internal
to the VA and will be moved to the VAAM.
In subpart 803.4, Contingent Fees, we propose to remove and reserve
the entire subpart and to remove the underlying section 803.405,
Misrepresentations or violations of the Covenant Against Contingent
Fees, since it contains guidance to VA employees that is internal to
the VA and will be moved to the VAAM.
In subpart 803.5, Other Improper Business Practices, we propose to
remove section 803.502, Subcontractor kickbacks, since it provides
direction to VA employees that is internal to the VA and will be moved
to the VAAM.
In section 803.570, Commercial advertising, we propose to revise
the language of subsection 803.570-1, Policy, to clarify the intent to
prohibit advertising that implies a Government endorsement of the
contractor's products or services.
In subpart 803.6, Contracts with Government Employees or
Organizations Owned or Controlled by Them, we propose to remove and
reserve the entire subpart and to remove the underlying section
803.602, Exceptions, since it delegates authority to authorize an
exception to the policy in FAR 3.601. This delegation will be in the VA
Acquisition Manual and is internal VAAM procedural guidance.
In subpart 803.7, Voiding and Rescinding Contracts, we propose to
remove and reserve the entire subpart and to remove the underlying
sections. We propose to remove section 803.703, Authority, since it is
a delegation of authority. This delegation will be in the VAAM and is
internal VA procedural guidance. We propose to remove section 803.705,
Procedures, as it duplicates FAR 3.705. A short paragraph that directs
VA Heads of Contracting Activities to follow the procedures of FAR
3.705 was added to the VAAM.
In subpart 803.8, Limitation on the Payment of Funds to Influence
Federal Transactions, we propose to remove and reserve the entire
subpart and to remove the underlying sections. We propose to remove
section 803.804, Policy, and section 803.806, Processing suspected
violations. This is internal VA procedural guidance and will be moved
to the VAAM.
We propose to add subpart 803.11, Preventing Personal Conflicts of
Interest for Contractor Employees Performing Acquisition Functions.
This implements part of FAR clause 52.203-16, Preventing Personal
Conflicts of Interest, by requiring the signing of a Non-Disclosure
Agreement by certain contractor covered employees performing
acquisition functions closely associated with inherently governmental
functions in order to prohibit disclosure of non-public information
accessed through performance on a Government contract. This also
requires each contractor and subcontractor at any tier whose employees
perform acquisition functions closely associated with inherently
governmental functions to obtain the signed non-disclosure forms from
each covered employee.
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We propose to remove and reserve subpart 803.70, Contractor
Responsibility to Avoid Improper Business Practices, and to remove its
underlying section 803.7000, Display of the VA Hotline poster and its
prescription at section 803.7001, Contract clause, because it is
unnecessary and duplicates FAR coverage. FAR 52.203-14, Display of
Hotline Poster(s), as prescribed at FAR 3.1004(b), provides adequate
coverage for the VA. Agency internal procedures regarding fill-in
information for the clause will be covered in the VAAM.
VAAR Part 812--Acquisition of Commercial Items
In section 812.301, paragraph (b)(13), we propose to change the
name of provision 852.214-74 to Marking of Bid Samples to better
reflect the requirement of the provision.
VAAR Part 814--Sealed Bidding
In subpart 814.1, Use of Sealed Bidding, we propose to delete the
subpart in its entirety, to include its underlying sections. We propose
to delete section 814.104, Types of contracts, and section 814.104-70,
Fixed-price contracts with escalation, as unnecessary since both simply
require compliance with FAR 16.203-1 through 16.203-4 and no additional
VAAR text is required.
In subpart 814.2, Solicitation of Bids, we propose to revise
section 814.201(a)-(f) by: Removing paragraphs (a)-(b) since they deal
with numbering of IFBs and consist of internal agency procedures which
is more properly covered in VAAM subpart 804.16; and, by removing
paragraphs (c) through (f) altogether under the existing section. The
title of the section would remain, but no additional text is added.
We propose to add a new subsection, 814.201-2, Part I--The
Schedule, to explain how award will be made on summary bids and bids on
groups of items to ensure this is clear to the public. In this new
subsection 814.201-2, we propose to add revised paragraphs originating
from the old 814.201 to comport with FAR numbering and arrangement
under the new subsection VAAR 814.201-2(b) to implement FAR 14.201-
2(b).
In subsection 814.201-6, Solicitation provisions, we propose to
remove as unnecessary paragraph (a), which addresses bid envelopes,
since labeling of bids is a customary and usual commercial practice,
and the use of the OF 17, which is optional, is no longer a standard
practice. We propose to redesignate paragraph (b) as (a) and to revise
item (1) to prescribe new provision 852.214-71, Restrictions on
alternate item(s); item (2) to clarify the conditions for including the
provision 852.214-72, Alternate items; and item (3) to prescribe the
provision 852.214-73, Alternate packaging and packing, when bids will
be allowed based on different packaging and packing. We also proposed
to redesignate paragraph (c) as (b) and to add a prescription for the
provision 852.214-74, Marking of bid samples.
We propose to add section 814.202, General rules for solicitation
of bids and subsection 814.202-4, Bid samples, requiring samples to be
from the manufacturer providing supplies or services under the
contract. This ensures that the products that are actually proposed and
would be delivered under the contract, if awarded, are the products
that are submitted for evaluation. Paragraph (g), requires that bid
samples be retained for the period of contract performance or until
settlement of any claim that the Government may have against the
contractor. Retention is intended for inspection purposes under FAR
14.202-4(g)(4).
We propose to delete section 814.203, Methods of soliciting bids,
and subsection 814.203-1, Transmittal to prospective bidders, as the
practice specified of furnishing a bid envelope or sealed bid label is
out of date with existing practices.
We propose to delete section 814.204, Records of Invitations for
Bids and Records of Bids, as it contains internal instructions to the
VA and will be moved to the VAAM.
We propose to delete section 814.208, Amendment of Invitation for
Bids as out of date with existing practices regarding sending
amendments.
In subpart 814.3, Submission of Bids, we propose to delete section
814.301, Responsiveness of bids, since there is no authority to refer
the question of timeliness to the U.S. Government Accountability Office
(GAO) except in the context of a protest.
We propose to delete section 814.302, Bid submission, as
duplicative of FAR 14.302(a) and therefore unnecessary.
We propose to revise section 814.304, Submission, modification, and
withdrawal of bids, to delete internal procedures, to stipulate a
limited time period for a late bidder to submit evidence of timeliness,
and to renumber this paragraph (f) accordingly to comport with FAR and
VAAR numbering conventions.
In subpart 814.4, Opening of Bids and Award of Contract, we propose
to delete the entire subpart because the information is either
redundant to the FAR and is adequately covered there or it is comprised
of agency internal procedures that will be incorporated into the VAAM
as noted specifically below.
We propose to delete section 814.401, Receipt and safeguarding of
bids, because coverage in the VAAR is unnecessary as the FAR adequately
covers.
We propose to delete sections 814.402, Opening of bids; 814.403,
Recording of bids; 814.404, Rejection of bids; 814.404-1, Cancellation
of invitations after opening; 814.404-2, Rejection of individual bids;
814.407, Mistakes in bids; 814.407-3, Other mistakes disclosed before
award; and, 814.407-4, Mistakes after award, as these are agency
internal procedures that will be incorporated into the VAAM.
We propose to delete section 814.404-70, Questions involving the
responsiveness of a bid, as there is no authority to refer questions of
bid responsiveness to the GAO other than in the context of a protest,
and, the overall responsibility for this determination rests with the
contracting officer. Coverage in FAR 14.301, Responsiveness of bids, is
adequate and no further VAAR coverage is required.
We propose to delete sections 814.408, Award, and 814.408-70, Award
when only one bid is received, because coverage in the VAAR is
unnecessary as it is adequately covered by FAR 14.408-1(b).
We propose to delete section 814.408-71, Recommendation for award
(construction) as the procedures are no longer in use within the Office
of Construction and Facilities Management.
We propose to delete section 814.409, Information to bidders, as
unnecessary since the requirement not to disclose is contained in FAR
part 3 and need not be duplicated in the VAAR.
VAAR Part 822--Application of Labor Laws to Government Acquisitions
In subpart 822.3, Contract Work Hours and Safety Standards Act, we
propose to revise section 822.304, Variations, tolerances, and
exemptions, to use plain language to state the conditions that must be
met to permit use of the variation to Contract Work Hours and Safety
Standards (the statute) (historically known as the Contract Work Hours
and Safety Standards Act), granted by the Secretary of Labor regarding
the payment of overtime under contracts for nursing home care for
Veterans.
We propose to revise section 822.305, Contract clause, to change
the title of
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the clause at 852.222-70 to Contract Work Hours and Safety Standards--
Nursing Home Care for Veterans in order to reflect the way the FAR
refers to the historical titles based on the Positive Law codification.
In subpart 822.4, Labor Standards for Contracts Involving
Construction, we propose to remove and reserve subpart 822.4, Labor
Standards for Contracts Involving Construction, since this subpart
contains procedural guidance on the types of labor standards involved
in construction contracting, internal agency guidance to the
contracting officer, etc., and is more appropriate for inclusion in the
VAAM.
We propose to remove the underlying section 822.406, Administration
and enforcement and subsection 822.406-11, Contract terminations, which
falls under this subpart since it contains procedural guidance and will
be moved to the VAAM.
VAAR Part 852--Solicitation Provisions and Contract Clauses
In subpart 852.2, we propose to revise clause 852.203-70,
Commercial Advertising, to use plain language, remove gender-specific
wording, and to clarify the intent to prohibit advertising that implies
a Government endorsement of the contractor's products or services.
We propose to remove clause 852.203-71, Display of Department of
Veterans Affairs Hotline Poster, because the VA will instead use FAR
clause 52.203-14, Display of Hotline Poster(s), as prescribed at FAR
3.1004. The FAR clause permits insertion of fill-in language to
identify an agency's hotline poster and VA will include language in its
internal agency procedures detailing the requirement to insert the
information regarding its agency specific hotline poster.
We propose to remove provision 852.214-70, Caution to Bidders--Bid
Envelopes, because the practices described within the provision are
obsolete with the advent of posting on the Government wide point of
entry (GPE) via the Federal Business Opportunities (FEDBIZOPPS.gov or
FBO.gov) Web page or via a linked interface off of FBO.gov. VA no
longer issues Bid Envelopes or the Optional Form (OF) 17, Sealed Bid
Label, described in the provision, when electronically posting IFBs,
thus making the provision obsolete and unnecessary. Additionally, the
clause, which talks to the VA providing a Sealed Bid Label, is
unnecessary since labeling a bid is a customary and usual business
practice making it unnecessary for VA to provide an optional label.
We propose to revise the individual prescription references for the
following clauses based on the restructuring of 814.201-6: 852.214-71,
Restrictions on Alternate Item(s); 852.214-72, Alternate Item(s); and
852.214-73, Alternate Packaging and Packing.
We propose to revise the title, text and prescription language of
provision 852.214-74 that now reads, Bid Samples, to Marking of Bid
Samples to describe better what the provision is about and to
distinguish it from a FAR provision that is called ``Bid Samples.'' We
use plain language to describe the principal purpose, which is to
ensure that bidder's packages that include bid samples are clearly
marked and identified with the words Bid Samples, as well as complete
lettering/numbering and description of the related bid item(s), the
number of the IFB, and the name of the bidder submitting the bid
samples. We are also removing language stating that the preparation and
transportation of the bid sample must be prepaid by the bidder as this
language is unnecessary because FAR clause 52.214-20, Bid Samples,
already contains language covering the bidder's responsibilities in
this regard. We also propose to revise the prescription language for
this provision at 814.201-6(b) which was renumbered to comport with FAR
and VAAR numbering and arrangement.
We propose to revise clause 852.222-70, Contract Work-Hours and
Safety Standards Act--Nursing Home Care Contract Supplement, to change
the title to Contract Work Hours and Safety Standards--Nursing Home
Care for Veterans, to better reflect the substance and coverage of the
clause and to align the name of the clause with the revised current
reference in lieu of the historical title of the act. This revision
will also clarify that the clause has flow-down requirements and
applies to subcontractors at any tier when the stated conditions in the
VAAR clause are met.
Effect of Rulemaking
Title 48, Federal Acquisition Regulations System, Chapter 8,
Department of Veterans Affairs, of the Code of Federal Regulations, as
revised by this proposed rulemaking, represents VA's implementation of
its legal authority and publication of the Department of Veterans
Affairs Acquisition Regulation (VAAR) for the cited applicable parts.
Other than future amendments to this rule or governing statutes for the
cited applicable parts, or as otherwise authorized by approved
deviations or waivers in accordance with FAR subpart 1.4, Deviations
from the FAR, and as implemented by VAAR subpart 801.4, Deviations from
the FAR or VAAR, no contrary guidance or procedures are authorized. All
existing or subsequent VA guidance must be read to conform with the
rulemaking if possible or, if not possible, such guidance is superseded
by this rulemaking as pertains to the cited applicable VAAR parts.
Executive Orders 12866 and 13563
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits
of reducing costs, of harmonizing rules, and of promoting flexibility.
E.O. 12866, Regulatory Planning and Review defines ``significant
regulatory action'' to mean any regulatory action that is likely to
result in a rule that may: ``(1) Have an annual effect on the economy
of $100 million or more or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive order.''
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this regulatory action, and it has been
determined this rule is not a significant regulatory action under E.O.
12866.
VA's impact analysis can be found as a supporting document at
http://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its impact analysis are available on VA's Web site at
http://www.va.gov/orpm by following the link for VA Regulations
Published from FY 2004 Through Fiscal Year to Date.
Paperwork Reduction Act
Although this action contains provisions constituting collections
of information at 48 CFR 814.201-6(a) and
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852.214-70, under the provisions of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501-3521), no new or proposed revised collections of
information are associated with this proposed rule. The information
collection requirements for Sec. Sec. 48 CFR 814.201-6(a) and 852.214-
70 are currently approved by the Office of Management and Budget (OMB),
have been assigned OMB control number 2900-0593, and are being proposed
for removal and discontinuance.
Regulatory Flexibility Act
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, 5 U.S.C. 601-612. This proposed rule will
generally be small business neutral. The overall impact of the proposed
rule will be of benefit to small businesses owned by Veterans or
service-disabled Veterans as the VAAR is being updated to remove
extraneous procedural information that applies only to VA's internal
operating procedures. VA estimates no cost impact to individual
business resulting from these rule updates. On this basis, the adoption
of 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, 5 U.S.C. 601-612. Therefore, under 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.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule will have no such effect
on State, local, and tribal Governments or on the private sector.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Gina S.
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs,
approved this document on May 1, 2017 for publication.
List of Subjects
48 CFR Part 801
Administrative practice and procedure, Government procurement,
Reporting and recordkeeping requirements.
48 CFR Part 802
Government procurement.
48 CFR Part 803
Antitrust, Conflict of interest, Government procurement.
48 CFR Part 812
Government procurement.
48 CFR Part 814
Government procurement.
48 CFR Part 822
Government procurement, Labor.
48 CFR Part 852
Government procurement, Reporting and recordkeeping requirements.
Dated: May 2, 2017.
Janet Coleman,
Chief, Office of Regulation Policy & Management, Office of the
Secretary, Department of Veterans Affairs.
For the reasons set out in the preamble, VA proposes to amend 48
CFR, chapter 8, parts 801, 802, 803, 812, 814, 822, and 852 as follows:
PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION
SYSTEM
0
1. The authority citation for part 801 is revised to read as follows:
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); and 48 CFR 1.301-1.304.
801.106 OMB approval under the Paperwork Reduction Act.
0
2. In section 801.106, table columns titled ``48 CFR part or section
where identified and described'' and ``Current OMB Control Number,''
are amended to remove the references to section 852.214-70 and the
corresponding OMB Control Number 2900-0593.
PART 802--DEFINITIONS OF WORDS AND TERMS
0
3. The authority citation for part 802 is revised to read as follows:
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); and 48 CFR 1.301-1.304.
802.101 Definitions
0
4. Section 802.101 is amended to add the following definition in
alphabetical order after ``D&S Committee'' to read as follows:
* * * * *
Debarment and Suspension Committee means a committee authorized by
the debarring official to assist the debarring official with debarment
and suspension related matters. The Debarment and Suspension Committee
is also referred to as the D&S Committee.
* * * * *
0
5. Section 802.101 is amended to add the following definition in
alphabetical order after ``Suspending Official'' to read as follows:
* * * * *
Suspension and debarring official means the Senior Procurement
Executive (SPE) or Deputy Senior Procurement Executive (DSPE) if
further delegated in writing by the SPE. The Suspension and Debarring
Official is also referred to as the SDO.
* * * * *
PART 803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
0
6. The authority citation for part 803 is revised to read as follows:
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); and 48 CFR 1.301-1.304.
Subpart 803.1 [Removed and Reserved]
0
7. Subpart 803.1 is removed and reserved.
803.204 [Amended]
0
8. Section 803.204 is revised to read as follows:
803.204 Treatment of violations.
(a) The SDO shall determine whether or not a violation of the
Gratuities clause, 52.203-3 has occurred and what action will be taken
under FAR 3.204(c).
(c) When the SDO determines that a violation has occurred and that
debarment is being considered, he or she shall follow procedures at
809.406-3.
Subpart 803.3 [Removed and Reserved]
0
9. Subpart 803.3 is removed and reserved.
Subpart 803.4 [Removed and Reserved]
0
10. Subpart 803.4 is removed and reserved.
803.502 [Removed]
0
11. Section 803.502 is removed.
[[Page 22640]]
803.570 [Amended]
0
12. Section 803.570-1 is revised to read as follows:
803.570-1 Policy.
VA policy prohibits contractors from making references in its
commercial advertising to VA contracts in a manner that states or
implies the Government approves or endorses the product or service or
considers it superior to other products or services. The intent of this
policy is to preclude the appearance of bias toward any product or
service.
Subpart 803.6 [Removed and Reserved]
0
13. Subpart 803.6 is removed and reserved.
Subpart 803.7 [Removed and Reserved]
0
14. Subpart 803.7 is removed and reserved.
Subpart 803.8 [Removed and Reserved]
0
15. Subpart 803.8 is removed and reserved.
Subpart 803.11 [Added]
0
16. Subpart 803.11 is added to read as follows:
Subpart 803.11--Preventing Personal Conflicts of Interest for
Contractor Employees Performing Acquisition Functions
803.1103 Procedures.
(a) By use of the contract clause at 52.203-16, Preventing Personal
Conflicts of Interest, the contracting officer shall require each
contractor whose employees perform acquisition functions closely
associated with inherently Governmental functions to obtain from each
covered employee a signed non-disclosure agreement to prohibit
disclosure of non-public information accessed through performance of a
Government contract. See FAR 3.1103(a)(2)(iii).
Subpart 803.70 [Removed and Reserved]
0
17. Subpart 803.70 is removed and reserved.
PART 812--ACQUISITION OF COMMERCIAL ITEMS
0
18. The authority citation for part 812 is revised to read as follows:
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); and 48 CFR 1.301-1.304.
* * * * *
812.301 [Amended]
* * * * *
0
19. Section 812.301, paragraph (b)(13) is revise to read as follows:
812.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(b) * * *
(13) 852.214-74, Marking of Bid Samples.
* * * * *
PART 814--SEALED BIDDING
0
20. The authority citation for part 814 is revised to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); and 48 CFR
1.301-1.304.
Subpart 814.1 [Removed and Reserved]
0
21. Subpart 814.1 is removed and reserved.
814.201 [Removed and reserved]
0
22. Section 814.201 is removed and reserved.
0
23. Subsection 814.201-2 is added to read as follows:
814.201-2 Part I--The Schedule.
(b) Section B, Supplies or services and prices.
(1) When the contracting officer determines that it will be to the
Government's advantage to make an award on the basis of a summary bid,
the IFB shall include the following statement in Part I--The Schedule,
Section B:
The award will be made on either the bid price for individual items
or the summary bid price summary for all items, whichever results in
the lowest price to the Government. Therefore, to assure proper
evaluation of all bids, a bidder quoting a summary bid price must also
quote a price on each individual item included in the summary bid
price.
(2) When a contracting officer determines that it will be to the
Government's advantage to make an award by group or groups of items,
the IFB shall include the following statement in Part I--The Schedule,
Section B:
Award shall be made on the basis of the bid price for each
identified group of items. The individual price of each line item in
the group does not have to be the lowest bid received for that item.
This may apply when the items in the group or groups are readily
available from sources to be solicited; and one of the following
applies--
(i) Furniture or fixtures are required for a single project and
uniformity of design is desirable.
(ii) The articles required will be assembled and used as a unit.
* * * * *
0
24. Subsection 814.201-6 is added to read as follows:
814.201-6 Solicitation provisions.
(a) In an invitation for bid for supplies, equipment, or services
(other than construction), the contracting officer shall define the
extent to which VA will authorize and consider alternate bids.
(1) The contracting officer shall include the provision at 852.214-
71, Restrictions on Alternate Items(s), in the invitation when VA will
consider an alternate item only where acceptable bids on a desired item
are not received or the bids do not satisfy the total requirement. (For
construction projects, VA will consider for acceptance an alternate
specified only as a part of the basic item.)
(2) The contracting officer shall include the provision at 852.214-
72, Alternate Items, in the invitation, when VA will consider an
alternate item on an equal basis with the item specified. (For
construction projects, VA will consider for acceptance an alternate
specified only as a part of the basic item.)
(3) In addition to either of the provisions referenced in
paragraphs (b)(1) or (2) of this subsection, the contracting officer
shall include the provision at 852.214-73, Alternate Packaging and
Packing, in the invitation when bids will be allowed based on different
packaging, unit designation, etc.
(b) The contracting officer shall include the provision at 852.214-
74, Marking of Bid Samples, in the invitation, along with the provision
at FAR 52.214-20, Bid Samples, when the contracting officer determines
that samples are necessary to the proper awarding of a contract.
0
25. Subpart 814.2 is amended to add section 814.202 and subsection
814.202-4, to read as follows:
814.202 General rules for solicitation of bids.
814.202-4 Bid samples.
(a) Policy. When bid samples are required, the contracting officer
shall include a notice in the contract Schedule that requires bidders
to submit samples produced by the manufacturer whose products will be
supplied under the contract.
(g) Handling bid samples.
[[Page 22641]]
(1) Samples from successful bids shall be retained for the period
of contract performance.
(2) If the contracting officer anticipates a claim regarding the
contract, the contracting officer shall require that the bid samples be
retained until the claim is resolved. If there are no outstanding
claims regarding the contract, the contracting officer may authorize
disposal of the samples at the end of the contract term in accordance
with the bidder's instructions.
(3) The contracting officer shall require that samples from
unsuccessful bids be retained until award. After award, these samples
may be disposed of in accordance with the bidder's instructions.
814.203 [Removed]
0
26. Section 814.203 is removed.
814.204 [Removed]
0
27. Section 814.204 is removed.
814.208 [Removed]
0
28. Section 814.208 is removed.
814.301 [Removed]
0
29. Section 814.301 is removed.
814.302 [Removed]
0
30. Section 814.302 is removed.
0
31. Section 814.304 is amended by removing paragraphs (a) and (b) and
adding paragraph (f) to read as follows:
814.304 Submission, modification and withdrawal of bids.
* * * * *
(f) A notification to late bidders shall specify the final date by
which VA must receive evidence of timeliness. This date shall be within
five calendar days of the date an electronic notice is sent to the
bidder, or within ten calendar days of receipt by the bidder of a
notice sent by other than electronic means.
* * * * *
Subpart 814.4 [Removed and Reserved]
0
32. Subpart 814.4 is removed and reserved.
* * * * *
PART 822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
0
33. The authority citation for part 822 is revised to read as follows:
Authority: 29 CFR 5.15(d); 38 U.S.C. 501; 40 U.S.C. 121(c); 41
U.S.C. 1121(c)(3); and 48 CFR 1.301-1.304.
* * * * *
PART 822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 822.3--Contract Work Hours and Safety Standards Act
Sec.
822.304 Variations, tolerances, and exemptions.
822.305 Contract clause.
822.304 [Amended]
0
34. Section 822.304 is revised to read as follows:
822.304 Variations, tolerances, and exemptions.
For contracts providing nursing home care for veterans, the
Secretary of Labor has allowed a variation to the requirements of
Contract Work Hours and Safety Standards (the statute) (40 U.S.C. 3701,
et seq.) regarding the payment of overtime (see 29 CFR 5.15(d)(2). The
variation provides that overtime may be calculated on a basis other
than a 40 hour workweek (as an alternate work period) when--
(a) Due to operational necessity or convenience a work period of 14
consecutive days may be accepted in lieu of the workweek of 7
consecutive days for the purpose of computing overtime compensation,
pursuant to an agreement or understanding arrived at between the
contractor and the contractors' employees before performance of the
work; and
(b) If the contractor's employees receive compensation for
employment in excess of 8 hours in any workday and in excess of 80
hours in such 14-day period at a rate not less than 1\1/2\ times the
regular rate at which the individual is employed, computed in
accordance with the requirements of the Fair Labor Standards Act of
1938, as amended.
822.305 [Amended]
0
35. Section 822.305 is revised to read as follows:
822.305 Contract clause.
The contracting officer shall insert the clause at 852.222-70,
Contract Work Hours and Safety Standards--Nursing Home Care for
Veterans, in solicitations and contracts for nursing home care for
veterans. The contractor shall flow down this clause and insert in in
all subcontracts, at any tier.
Subpart 822.4 [Removed and Reserved]
0
36. Subpart 822.4 is removed and reserved.
* * * * *
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
37. The authority citation for part 852 is revised to read as follows:
Authority: 38 U.S.C. 501, 8127-8128, and 8151-8153; 40 U.S.C.
121(c); 41 U.S.C. 1121(c)(3); and 48 CFR 1.301-1.304.
* * * * *
Subpart 852.2--Texts of Provisions and Clauses
852.203-70 [Amended]
0
38. Section 852.203-70 is revised to read as follows:
852.203-70 Commercial Advertising.
As prescribed in 803.570-2, insert the following clause:
Commercial Advertising (Date)
The contractor shall not make reference in its commercial
advertising to Department of Veterans Affairs contracts in a manner
that states or implies the Department of Veterans Affairs approves
or endorses the contractor's products or services or considers the
contractor's products or services superior to other products or
services.
(End of clause)
852.203-71 [Removed and Reserved]
0
39. Section 852.203-71 is removed and reserved.
* * * * *
852.214-70 [Removed and Reserved]
0
40. Section 852.214-70 is removed and reserved.
852.214-71 [Amended]
0
41. Section 852.214-71 is revised to read as follows:
852.214-71 Restrictions on alternate item(s).
As prescribed in paragraph 814.201-6(a)(1), insert the following
provision:
Restrictions on Alternate Item(s) (Date)
Bids on [ ] * will be considered only if acceptable bids on [ ]
** are not received or do not satisfy the total requirement.
* Contracting officer will insert an alternate item that is
considered acceptable.
** Contracting officer will insert the required item and item
number.
(End of provision)
852.214-72 [Amended]
0
42. Section 852.214-72 is revised to read as follows:
852.214-72 Alternate item(s).
As prescribed in paragraph 814.201-6(a)(2), insert the following
provision:
[[Page 22642]]
Alternate Item(s) (Date)
Bids on [ ] * will be given equal consideration along with bids
on [ ] ** and any such bids received may be accepted if to the
advantage of the Government. Tie bids will be decided in favor of [
]. **
* Contracting officer will insert an alternate item that is
considered acceptable.
** Contracting officer will insert the required item and item
number.
(End of provision)
852.214-73 [Amended]
0
43. Section 852.214-73 is revised to read as follows:
852.214-73 Alternate packaging and packing.
As prescribed in paragraph 814-201-6(a)(3), insert the following
provision:
Alternate Packaging and Packing (Date)
The bidders offer must clearly indicate the quantity, package
size, unit, or other different feature upon which the quote is made.
Evaluation of the alternate or multiple alternates will be made on a
common denominator such as per ounce, per pound, etc., basis.
(End of provision)
852.214-74 [Amended]
0
44. Section 852.214-74 is revised to read as follows:
852.214-74 Marking of Bid Samples.
As prescribed in paragraph 814.201-6(b), insert the following
provision:
Marking of Bid Samples (Date)
Any bid sample(s) furnished must be in the quantities specified
in the solicitation. Cases or packages must be plainly marked `Bid
Sample(s)'' with the complete lettering/numbering and description of
the related bid item(s), the number of the Invitation for Bids, and
the name of the bidder submitting the bid sample(s).
(End of provision)
* * * * *
852.222-70 [Amended]
0
45. Section 852.222-70 is revised to read as follows:
852.222-70 Contract Work-Hours and Safety Standards--Nursing Home Care
for Veterans.
As prescribed in 822.305, insert the following clause:
Contract Work Hours and Safety Standards--Nursing Home Care for
Veterans (Date)
(a) No Contractor and subcontractor under this contract shall
prohibit the payment of overtime wages to their employees for work
in excess of 40 hours in any workweek, which would otherwise be a
violation of Contract Work Hours and Safety Standards (the statute)
(40 U.S.C. 3701, et seq.), provided--
(1) The Contractor or subcontractor is primarily engaged in the
care of nursing home patients residing on the contractor's or
subcontractor's premises;
(2) There is an agreement or understanding between the
Contractor or subcontractor and their employees, before performance
of work, that a work period of 14 consecutive days is acceptable in
lieu of a work period of 7 consecutive days for the purpose of
overtime compensation;
(3) Employees receive overtime compensation at a rate no less
than 1\1/2\ times the employees' regular hourly rate of pay for work
in excess of 80 hours in any 14 day period; and
(4) Pay is otherwise computed in accordance with the
requirements of the Fair Labor Standards Act of 1938, as amended.
(b) Subcontracts. The Contractor shall insert the text of this
clause, including this paragraph (b), in subcontracts at any tier.
The Contractor shall be responsible for compliance by any
subcontractor or lower-tier subcontractor with the provisions set
forth in paragraphs (a) through (b) of this clause.
(End of clause)
[FR Doc. 2017-09158 Filed 5-16-17; 8:45 am]
BILLING CODE 8320-01-P