[Federal Register Volume 83, Number 58 (Monday, March 26, 2018)]
[Proposed Rules]
[Pages 12922-12933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04002]


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DEPARTMENT OF VETERANS AFFAIRS

[8320-01]

48 CFR Parts 801, 811, 832, 852, and 870

RIN 2900-AP81


Revise and Streamline VA Acquisition Regulation--Parts 811 and 
832

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) in phased increments to 
revise or remove any policy superseded by changes in the Federal 
Acquisition Regulation (FAR), to remove any procedural guidance 
internal to VA into the VA Acquisition Manual (VAAM), and to 
incorporate any new agency specific regulations or policies. These 
changes seek to streamline and align the VAAR with the FAR and remove 
outdated and duplicative requirements and reduce burden on contractors. 
The VAAM incorporates portions of the removed VAAR as well as other 
internal agency acquisition policy. VA will rewrite certain parts of 
the VAAR and VAAM, and as VAAR parts are rewritten, we'll publish them 
in the Federal Register. VA will combine related topics, as 
appropriate. In particular, this rulemaking revises VAAR Parts 811--
Describing Agency Needs and Part 832--Contract Financing, as well as 
affected parts 801--Department of Veterans Affairs Acquisition 
Regulation System, 852--Solicitation Provisions and Contract Clauses, 
and 870--Special Procurement Controls.

DATES: Comments must be received on or before May 25, 2018 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 1063B, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AP81--Revise and Streamline VA Acquisition Regulation to 
Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-
V004--parts 811, 832).'' Copies of comments received will be available 
for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, 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 Clark, Senior Procurement 
Analyst, Procurement Policy and Warrant Management Services, 003A2A, 
425 I Street NW, Washington DC 20001, (202) 697-3565. (This is not a 
toll-free telephone number.)

SUPPLEMENTARY INFORMATION:

Background

    This rulemaking is issued under the authority of the Office of 
Federal Procurement Policy (OFPP) Act which provides the authority for 
an agency head to issue agency acquisition regulations that implement 
or supplement the FAR.
    VA is proposing to revise the VAAR to add new policy or regulatory 
requirements and to remove any redundant guidance and guidance that is 
applicable only to VA's internal operating processes or procedures. 
Codified acquisition regulations may be amended and revised only 
through rulemaking. All amendments, revisions, and removals have been 
reviewed and concurred with by VA's 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, as codified in 41 
U.S.C. 1707, 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.

[[Page 12923]]

Discussion and Analysis

    The 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 has been considered for inclusion in VA's 
internal agency operating procedures in accordance with FAR 
1.301(a)(2). Similarly, delegations of authority that are removed from 
the VAAR will be included in the VA Acquisition Manual (VAAM) as 
internal agency guidance.

VAAR Part 801--Department of Veterans Affairs Acquisition Regulation 
System

    We propose to amend the authority for part 801 to remove the 
citation of 38 U.S.C. 501, and to add 41 U.S.C. 1121, 41 U.S.C. 1303, 
an updated positive law codification of, to reflect additional 
authority of the VA as an executive agency to issue regulations that 
are essential to implement Governmentwide policies and procedures in 
the agency, as well as to issue additional policies and procedures 
required to satisfy the specific needs of the VA; and 41 U.S.C. 1702, 
which addresses overall direction of procurement policy, acquisition 
planning and management responsibilities of VA's Chief Acquisition 
Officer.
    This proposed rule contains existing information collection 
requirements. The proposed rule would result in multiple actions 
affecting these information collections, including outright removal of 
the information collection and redesignating the information collection 
burden associated with several clauses or provisions by renumbering the 
clause or provision. We propose to revise certain clause or provision 
numbers in VAAR part 801 only when removing the actual information 
collection and its associated burden, or when redesignating and 
renumbering the clause or provision under the associated Office of 
Management and Budget (OMB) approval number.
    In section 801.106, OMB approval under the Paperwork Reduction Act, 
we propose to amend section 801.106 table columns titled ``48 CFR part 
or section where identified and described,'' and ``Current OMB control 
number.'' We propose to remove the reference to section 832.006-4 and 
the associated OMB control number 2900-0688. This information 
collection burden under the associated OMB control number was 
previously removed via a published Notice of Office of Management and 
Budget Action dated March 2, 2015, Information Collection Reference 
(ICR) 201406-2900-017, which approved the removal of the information 
collection and a reduction of the associated burden under OMB approval 
number 2900-0688. Therefore, it is proposed for removal from this 
table. Information collection is approved at the FAR level under FAR 
OMB approval number 9000-0138, making it unnecessary for a separate 
information collection approval in the VAAR.
    In section 801.106, OMB approval under the Paperwork Reduction Act, 
we propose to amend section 801.106 table columns titled ``48 CFR part 
or section where identified and described,'' and ``Current OMB control 
number.'' We propose to remove the reference to subsection 852.211-71, 
Special Notice, and discontinue the corresponding OMB control number 
2900-0588, as the provision conflicts with FAR 52.214-21. It currently 
requires literature to be provided after award and thus conflicts with 
the FAR and the Government's procedures for evaluating relevant 
materials during source selection and prior to award decisions.
    In section 801.106, in reference to the table described, we propose 
to remove the reference to subsection 852.211-73, Brand Name or Equal, 
and discontinue the corresponding OMB control number 2900-0585, as the 
topical area the clause covers, ``brand name or equal,'' or ``items 
peculiar to one manufacturer,'' has sufficient coverage in FAR 11.105 
and the associated provision in FAR 52.211-6, Brand Name or Equal.
    In section 801.106, in reference to the table described, we propose 
to remove the reference to section 852.236-82, Payments under fixed-
price construction contracts (without NAS), and remove the reference to 
section 852.236-83, Payments under fixed-price construction contracts 
(including NAS). Both of these clauses, pertaining to ``payments under 
fixed-price construction,'' have been renumbered to reflect their 
prescription under Part 832. The associated OMB control number 2900-
0422 will now reflect information collections under the new clause 
numbers--852.232-70 and 852.232-71 as described in further detail under 
the Paperwork Reduction Act section of this preamble, although these 
are not new collections.

Subchapter B--Competition and Acquisition Planning

    We propose to revise the title of Subchapter B to conform to the 
title in the Federal Acquisition Regulation, 48 CFR, chapter 1, 
``Acquisition Planning.''

VAAR Part 811--Describing Agency Needs

    We propose to revise the Table of Contents to reflect the revision 
of subparts 811.1 and 811.2, and the deletion of subparts 811.4, 811.5, 
and 811.6.
    We propose to revise the part 811 authorities to add 41 U.S.C. 
1702, which addresses overall direction of procurement policy, 
acquisition planning and management responsibilities of VA's Chief 
Acquisition Officer, and 41 U.S.C. 1303, an updated positive law 
codification to reflect additional authority of the VA as an executive 
agency to issue regulations that are essential to implement 
Governmentwide policies and procedures in the agency, as well as to 
issue additional policies and procedures required to satisfy the 
specific needs of the VA.
    We propose to remove section 811.001, Definitions, because the 
coverage in FAR 11.104 provides adequate coverage of what brand name or 
equal purchase descriptions must include. The VAAR had merely 
paraphrased the same information. In accordance with FAR drafting 
standards and the requirement in FAR 1.304(b)(1) that agency 
acquisition regulations shall not unnecessarily repeat, paraphrase, or 
otherwise restate material contained in the FAR, this section is 
therefore proposed for removal.
    In subpart 811.1, Selecting and Developing Requirements Documents, 
we propose to remove section 811.103, Market acceptance, and the 
underlying subsection 811.103-70, Technical industry standards. We 
propose to revise the prescription to clause 852.211-72, Technical 
industry standards, for clarity and simplification of the language, and 
to move the prescription of the clause to 811.204-70 to comport with 
the FAR structure, as technical industry standards are not related to 
coverage in FAR 11.103, but would fall under FAR 11.204.
    We propose to remove the section title at 811.104, Use of Brand 
Name or Equal purchase descriptions, and subsection at 811.104-70, 
Brand name or equal purchase descriptions, because FAR 11.104, provides 
adequate coverage of what brand name or equal purchase descriptions 
must include.
    We propose to remove subsections 811.104-71, Purchase description 
clauses, and 811.104-72, Limited application of brand name or equal, 
because the subject is adequately covered in FAR clause 52.211-6, Brand 
name or equal.

[[Page 12924]]

    We propose to remove subsection 811.104-73, Bid samples, as 
coverage is adequate in FAR 14.202-4, and clause 52.214-20.
    We propose to remove subsection 811.104-74, Bid evaluation and 
award, since it duplicates coverage in FAR clause 52.211-6.
    We propose to remove subsection 811.104-75, Procedure for 
negotiated procurements, since there is no need to have separate policy 
and procedures for negotiated and sealed bid solicitations. FAR covers 
``brand name or equal'' without a distinction between sealed bid and 
negotiated solicitations.
    We propose to remove 811.105, Items peculiar to one manufacturer, 
since the subject is adequately covered in FAR 11.105.
    In subpart 811.1, section 811.107, Contract clauses, we propose to 
amend the number and title of the existing section to read as 811.107-
70, Contract clause, to better reflect its placement in accordance with 
FAR numbering conventions. It fits intelligibly as a supplement to FAR 
11.107, Solicitation provision, but the VAAR is supplementing with a 
clause in this area and not a provision, necessitating the more 
accurate title. Subsection 811.107-70 prescribes a new clause 852.211-
70, Equipment Operation and Maintenance Manuals, which replaces the 
existing clause 852.211-70, Service data manuals.
    In subpart 811.2, Using and Maintaining Requirements Documents, we 
propose to remove section 811.202, Maintenance of standardization 
documents, as it is procedural in nature and will be moved to the VAAM.
    Under subpart 811.2, we propose to revise and renumber section 
811.204, Contract clause, to subsection 811.204-70, Contract clause, 
which contains text prescribing clause 852.211-72, Technical industry 
standards. The prescription for 852.211-72 was moved from 811.103-70 to 
better comport with FAR structure numbering and arrangement.
    We propose to remove subparts 811.4, Delivery or Performance 
Schedules, and 811.5, Liquidated Damages, as the policy is redundant to 
FAR guidance.
    We propose to remove subpart 811.6, Priorities and Allocations, as 
it provides internal procedural guidance not having a significant 
effect beyond the internal operating procedures of the VA (see FAR 
1.301(b)) and which will be moved to the VAAM.

VAAR Part 832--Contract Financing

    We propose to revise the Table of Contents to reflect the revision 
of subparts 832.1, 832.2, 832.9 and 832.70, and the deletion of 
subparts 832.5, 832.8, and 832.11.
    We propose to revise the part 832 authorities to add 41 U.S.C. 
1702, which addresses overall direction of procurement policy, 
acquisition planning and management responsibilities of VA's Chief 
Acquisition Officer; and 41 U.S.C. 1303, to include an updated positive 
law codification.
    We propose to add section 832.001, Definitions. This section would 
add three definitions of terms relating to electronic invoicing. We 
propose to amend subsection 832.006-1, General, to spell out the title 
of Senior Procurement Executive (SPE) and to delete the last sentence 
as it provides internal procedural guidance not having a significant 
effect beyond the internal operating procedures of the VA (see FAR 
1.301(b)) and which will be moved to the VAAM.
    We propose to remove subsection 832.006-2, Definitions, which only 
included one definition for the Remedy Coordination Official (RCO). 
This information would be added in subsection 832.006-4 and would make 
the need for a separate definition repeating the same thing 
unnecessary.
    We propose to remove subsection 832.006-3, Responsibilities, as it 
provides internal procedural guidance not having a significant effect 
beyond the internal operating procedures of VA (see FAR 1.301(b)) and 
which will be moved to the VAAM.
    We propose to amend subsection 832.006-4, Procedures, to update the 
existing VA agency procedures and to delete paragraphs (a) and (c) as 
internal operating procedures of VA not having a significant effect 
beyond the internal operating procedures of the VA (see FAR 1.301(b)) 
and which will be moved to the VAAM. We propose to add new paragraphs 
(b), (e), and (g) to implement FAR required agency procedures which 
describes notifying contractors, the contractor's right to provide 
information on its behalf concerning a finding of fraud in payment 
requests, the time period to provide the information to the Government 
and that the Senior Procurement Executive (SPE) will provide a copy of 
each final determination and supporting documentation to the 
contractor, the RCO, the Contracting Officer, and the VA Office of 
Inspector General (OIG).
    In subpart 832.1, Non-Commercial Item Purchase Financing, we 
propose to amend section 832.111, Contract clauses for non-commercial 
purchases, to renumber the section as subsection 832.111-70, retitle it 
as ``VA contract clauses for non-commercial purchases,'' and to 
reconfigure the paragraphs to conform more closely to FAR prescription 
language for clauses and provisions. Also, the clauses were renumbered 
to reflect that they are prescribed in part 832 and not 836 as they 
were previously numbered, and the clauses were retitled for 
clarification.
    In subpart 832.2, Commercial Item Purchase Financing, we propose to 
remove section 832.201, Statutory authority, and move internal 
procedural guidance not having a significant effect beyond the internal 
operating procedures of VA (see FAR 1.301(b)) and which will be moved 
to the VAAM. It contains a delegation of authority for Contracting 
Officers to make determinations regarding terms and conditions for 
payment for commercial items and whether they are appropriate, 
customary, and in the best interest of the Government.
    We propose to amend subsection 832.202-1, Policy, to make the 
paragraph comport with the corresponding FAR coverage, to reflect that 
Heads of Contracting Activities (HCAs) shall report no later than 
December 31 of each calendar year, to the Senior Procurement Executive 
(SPE) and Deputy Senior Procurement Executive (DSPE), on the number of 
contracts for commercial items with unusual contract financing, 
commercial interim or advance payments that were approved for the 
previous fiscal year (1 October 20XX-30 September 20XX). This would 
stipulate what is to be included in the report, the amount of such 
unusual contracting financing, commercial interim or advance payments 
that were approved, and the kind and amount of security obtained by the 
contractor for the advance.
    We propose to amend subsection 832.202-4, Security for Government 
financing, to make the paragraphs comport with the corresponding FAR 
coverage, and to delete the mention of a Dun and Bradstreet report.
    In subpart 832.4, Advance Payments for Non-Commercial Items, we 
propose to amend 832.402, General, to provide updated and revised VA 
procedures on who in the VA is delegated authority to make the 
determination described at FAR 32.402(c)(1)(iii) and to approve 
contract terms concerning advance payments. This is delegated to the 
Head of the Contracting Activity (HCA). Typically VA delegations are 
contained in the VAAM but here, where it may impact the use and 
approval of unique financing arrangements that contractors may need to 
be aware of, the delegation is being retained in the VAAR.
    We propose to amend section 832.404, Exclusions, to renumber the

[[Page 12925]]

paragraphs so it better comports with the FAR coverage and to clarify 
language and the citation of the authorities listed. We include 
information regarding the applicability of 31 U.S.C. 3324(d)(2), which 
allows VA to issue advance payment for subscriptions or other charges 
for newspapers, magazines, periodicals, and other publications for 
official use. In addition, the statutory authority is included in 
section 832.404 for 31 U.S.C. 1535, and permits the VA to issue advance 
payment for services and supplies obtained from another Government 
agency. Further, language is added that includes that as permitted by 5 
U.S.C. 4109, VA is permitted to issue advance payment for all or any 
part of the necessary expenses for training Government employees, 
including obtaining professional credentials under 5 U.S.C. 5757, in 
Government or non-Government facilities, including the purchase or 
rental of books, materials, and supplies or services directly related 
to the training of a Government employee.
    We propose to remove subparts 832.5, Progress Payments Based on 
Costs and 832.8, Assignment of Claims, as both contain internal 
procedural guidance not having a significant effect beyond the internal 
operating procedures of VA (see FAR 1.301(b)) and which will be moved 
to the VAAM.
    In subpart 832.9, Prompt Payment, we propose to revise section 
832.904, Determining payment due dates, to remove the text, but retain 
the title in the VAAR as it is related to a new proposed subsection 
that will fall underneath it. The procedures in the text will be moved 
to the VAAM as internal operational procedures of the VA.
    We propose to add subsection 832.904-70 to implement OMB Memorandum 
M-11-32, dated September 14, 2011, and to encourage making payments to 
small business contractors within 15 days of receipt of invoice.
    We propose to remove subpart 832.11, Electronic Funds Transfer, and 
section 832.1106, EFT mechanisms, as they contain internal procedural 
guidance not having a significant effect beyond the internal operating 
procedures of VA (see FAR 1.301(b)) and which will be moved to the 
VAAM.
    In subpart 832.70, Electronic Invoicing Requirements, we propose to 
amend section 832.7000, General, to reflect that the subpart contains 
policy requirements rather than procedures.
    We propose to remove section 832.7001, Definitions, since two of 
the definitions are provided in the FAR and the other relevant 
definitions have been moved to section 832.001, Definitions, which 
covers the entire part. We propose to revise the title to reflect 
``Electronic payment requests,'' and to reflect text now in section 
832.7002.
    We propose to remove section 832.7002, Electronic payment requests, 
as the content has been moved to 832.7001.
    We propose to amend subsection 832.7002-1, Data transmission, to 
renumber and redesignate it as subsection 832.7001-1; to remove the 
website address from paragraph (a); to require the address to be 
provided in the contract; and to delete from paragraph (b) a website 
which may in time become obsolete.
    We propose to amend subsection 832.7002-2, Contract clause, to 
renumber and redesignate it as subsection 832.7001-2. We also propose 
to add a stipulation to the prescription that the clause does not apply 
to contracts paid with the Governmentwide commercial purchase card.

VAAR Part 852--Solicitation Provisions and Contract Clauses

    In part 852, we propose to amend the authority by adding 41 U.S.C. 
1303 to include an updated positive law codification, to reflect 
additional authority of the VA as an executive agency to issue 
regulations that are essential to implement Governmentwide policies and 
procedures in the agency, as well as to issue additional policies and 
procedures required to satisfy the specific needs of the VA.
    We propose to amend section 852.211-70, Service data manuals, and 
to revise the title to read, ``Equipment Operation and Maintenance 
Manuals.'' This requires Contracting Officers to insert this revised 
clause in solicitations for technical medical equipment and devices, 
and/or other technical and mechanical equipment where the requiring 
activity determines manuals are a necessary requirement for operation 
and maintenance of the equipment. It removes the prior extensive 
detailed list of specific information that would need to be developed 
and instead relies on existing commercial industry practices to provide 
already developed commercial manuals.
    We propose to remove subsection 852.211-71, Special Notice, as it 
is redundant to guidance contained in the FAR.
    We propose to amend subsection 852.211-72, Technical industry 
standards, to more clearly set forth the requirements that the 
contractor shall conform to the standards reflected in the clause. It 
also requires the contractor to submit proof of conformance to the 
standard, how to obtain the standards and requires the offeror to 
contact the Contracting Officer if a response is not received within 
two weeks of the offeror's request.
    We propose to remove subsections 852.211-73, Brand Name or Equal; 
852.211-74, Liquidated Damages; and 852.211-75, Product Specifications, 
as they are all redundant to guidance contained in the FAR.
    Also in part 852, we propose to add clause 852.232-70, Payments 
under fixed-price construction contracts (without NAS-CPM). This clause 
was formerly 852.236-82, Payments under fixed-price construction 
contracts (without NAS). This clause is revised to renumber it to 
852.232-70 to reflect its prescription under part 832, and to revise 
the title of the ``NAS'' to ``NAS-CPM,'' to clarify the list of 
conditions in paragraph (c) for allowing progress payments for stored 
supplies and equipment, and to add a new paragraph (f) requiring notice 
to the contractor if retainage is to be made on a progress payment.
    We propose to add clause 852.232-71, Payments under fixed-price 
construction contracts (including NAS-CPM). This clause was formerly 
852.236-83, Payments under fixed-price construction contracts 
(including NAS). This clause is revised to renumber it as 852.232-71 to 
agree with its prescription in Part 832, to revise the title of the 
``NAS'' to ``NAS-CPM,'' and to clarify the list of conditions in 
paragraph (c) for allowing progress payments for stored supplies and 
equipment, and to add a new paragraph (f) requiring notice to the 
contractor if retainage is to be made on a progress payment.
    We propose to amend clause 852.232-72, Electronic Submission of 
Payment Requests, to revise the definition of ``designated agency 
office,'' and to delete a website address and system specifications.
    We propose to delete the clauses 852.236-82, Payments Under Fixed-
Price Construction Contracts (without NAS), and 852.236-83, Payments 
Under Fixed-Price Construction Contracts (including NAS) as they have 
been renumbered to comport with FAR arrangements and more properly 
belong in VAAR part 832 as noted above.

VAAR Part 870--Special Procurement Controls

    We propose to remove section 870.112, Telecommunications equipment, 
as it contains the

[[Page 12926]]

prescription and requirement for review of descriptive literature 
required by the clause 852.211-71, Special notice, which is proposed 
for removal as noted elsewhere in the preamble.
    We propose to remove section 870.113, Paid use of conference 
facilities, as it contains internal procedural guidance not having a 
significant effect beyond the internal operating procedures of VA (see 
FAR 1.301(b)) and which will be moved to the VAAM.

Effect of Rulemaking

    Title 48, Federal Acquisition Regulations System, Chapter 8, 
Department of Veterans Affairs, of the Code of Federal Regulations, as 
proposed to be revised by this rulemaking, would represent 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 Federal 
Acquisition Regulation (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 would be authorized. All existing or 
subsequent VA guidance would be read to conform with the rulemaking if 
possible or, if not possible, such guidance would be superseded by this 
rulemaking as pertains to the cited applicable VAAR parts.

Executive Order 12866, 13563 and 13771

    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 website at 
http://www.va.gov/orpm by following the link for VA Regulations 
Published from FY 2004 Through Fiscal Year to Date. This proposed rule 
is expected to be an E.O. 13771 deregulatory action. Details on the 
estimated cost savings of this proposed rule can be found in the rule's 
economic analysis.

Paperwork Reduction Act (PRA)

    This proposed rule impacts seven existing information collection 
requirements associated with six Office of Management and Budget (OMB) 
control number approvals. The proposed actions in this rule result in 
multiple actions affecting some of these information collections, such 
as: the proposed outright removal of the information collection; no 
change in information collection burdens although titles and numbers 
may be changed or the clauses moved to other parts of the VAAR; a 
reduction in existing information collection burdens; and the proposed 
redesignation of the existing approved OMB collection numbers and the 
associated burden as a result of two clauses we propose to both retitle 
and renumber.
    The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires 
that VA consider the impact of paperwork and other information 
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an 
agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement unless it displays 
a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi).
    This proposed rule would impose the following amended information 
collection requirements to two of the six existing information 
collection approval numbers associated with this proposed rule. 
Although this action contains provisions constituting collections of 
information at 48 CFR 852.236-82 and 852.236-83, under the provisions 
of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed 
collections of information are associated with these clauses. The 
information collection requirements for 48 CFR 852.236-82 and 852.236-
83 are currently approved by the Office of Management and Budget (OMB) 
and have been assigned OMB control number 2900-0422. However, this 
information collection has been submitted to OMB to revise the title 
and to redesignate and renumber the two clauses currently numbered as 
sections 852.236-82, Payments Under Fixed-Price Construction Contracts 
(without NAS), and 852.236-83, Payments Under Fixed-Price Construction 
Contracts (including NAS). Accordingly, if approved, they would reflect 
the new designation and revised titles as set forth in the preamble and 
the amendatory language of this proposed rule to read: 852.232-70, 
Payments Under Fixed-Price Construction Contracts (without NAS-CPM), 
and 852.232-71, Payments Under Fixed-Price Construction Contracts 
(including NAS-CPM), respectively, under the associated OMB control 
number 2900-0422. The references to the old numbers--852.236-82 and 
852.236-83, would accordingly be removed. There is no change in the 
information collection burden that is associated with this proposed 
request. As required by the Paperwork Reduction Act of 1995 (at 44 
U.S.C. 3507(d)), VA has submitted these information collection 
amendments to OMB for its review. Notice of OMB approval for this 
information collection will be published in a future Federal Register 
document.
    This proposed rule would impose the following amended information 
collection requirements to one of the six existing information 
collection approval numbers associated with this proposed rule. 
Although this action contains provisions constituting collections of 
information at 48 CFR 852.211-70, Service data manuals, under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new 
proposed information collection is associated with this clause. The 
information collection requirement for 48 CFR 852.211-70 is currently 
approved by OMB and has been assigned OMB control number 2900-0587. 
However, this information collection has been submitted to OMB

[[Page 12927]]

to revise the title from ``Service Data Manuals,'' to read, ``Equipment 
Operation and Maintenance Manuals.'' We propose to reflect the revised 
title as set forth in the preamble and the amendatory language of this 
proposed rule for this clause to read: 852.211-70, Equipment Operation 
and Maintenance Manuals, under the associated OMB control number 2900-
0587. We propose to remove the reference in the existing OMB control 
number to the old title. There is also a reduction in the information 
collection burden that is associated with this proposed request. The 
previously approved estimated annual hourly burden is 621 hours. As a 
result of revising the clause and removing the requirement to develop 
Government-specified service manuals, the VA has eliminated an 
unnecessary burden on the public by making use of commercial operation 
and maintenance manuals just like the general public and established 
commercial practices, thereby reducing by half the estimated annual 
hourly burden which is now estimated at 311 hours, a reduction of 310 
annual hours. As required by the Paperwork Reduction Act of 1995 (at 44 
U.S.C. 3507(d)), VA has submitted this information collection amendment 
to OMB for its review. Notice of OMB approval for this information 
collection will be published in a future Federal Register document.
    This proposed rule would remove two of the six existing information 
collection requirements associated with this action at 48 CFR 852.211-
71, Special Notice, and 48 CFR 852.211-73, Brand Name or Equal. Under 
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), it 
discontinues the associated corresponding approved OMB control numbers, 
2900-0588 and 2900-0585, respectively. As a result of this proposed 
rule, there is a removal in the information collection burden that is 
associated with the removal of these two information collection 
requirements. For 48 CFR 852.211-71, Special Notice, and its 
corresponding OMB control number 2900-0588, this results in a removal 
of 875 estimated annual burden hours. For 48 CFR 852.211-73, Brand Name 
or Equal, and its corresponding OMB control number 2900-0585, this 
results in a removal of 1,125 estimated annual burden hours. As 
required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), 
VA has submitted this information collection amendment to OMB for its 
review. Notice of OMB approval for this information collection will be 
published in a future Federal Register document.
    This proposed rule also contains two other provisions constituting 
a collection of information at 48 CFR 852.211-72, Technical industry 
standards, and 48 CFR 832.202-4, Security for Government financing, 
which remain unchanged. Under the provisions of the Paperwork Reduction 
Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised 
collection of information is associated with these provisions as a part 
of this proposed rule. The information collection requirements for 48 
CFR 852.211-72 and 48 CFR 832.202-4 are currently approved by the OMB 
and have been assigned OMB control numbers 2900-0586 and 2900-0688, 
respectively. The burden of these information collections remains 
unchanged. In accordance with the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521), the OMB has approved the reporting or recordkeeping 
provisions that are included in the clause and the text under section 
832.202-4 cited above and has given the VA the following approval 
numbers: OMB 2900-0586 and OMB 2900-0688, respectively.

Regulatory Flexibility Act

    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, 5 U.S.C. 601-612. The overall impact of the 
proposed rule would 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 is merely adding existing and current 
regulatory requirements to the VAAR and removing any guidance that is 
applicable only to VA's internal operation processes or procedures. VA 
estimates no cost impact to individual business would result from these 
rule updates. This rulemaking does not change VA's policy regarding 
small businesses, does not have an economic impact to individual 
businesses, and there are no increased or decreased costs to small 
business entities. On this basis, the proposed rule would not have an 
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 regulatory action 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 would have no such 
effect on State, local, and tribal Governments or on the private 
sector.

List of Subjects

48 CFR Part 801

    Administrative practice and procedure, Government procurement, 
Reporting and recordkeeping requirements.

48 CFR Part 811and 832

    Government procurement.

48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 870

    Asbestos, Frozen foods, Government procurement, Telecommunications.

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 August 7, 2017, for publication.

    Dated: February 22, 2018.
Consuela Benjamin,
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, 811, 832, 852, and 870 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: 40 U.S.C. 121(c); 41 U.S.C. 1121; 41 U.S.C. 1303; 41 
U.S.C. 1702; and 48 CFR 1.301-1.304.

Subpart 801.1--Purpose, Authority, Issuance 801.106 [Amended]

0
2. Amend the section 801.106 table columns titled ``48 CFR part or 
section where identified and described'' and ``Current OMB control 
number'' to--
0
a. Remove the reference to section 832.006-4 and OMB Control Number 
2900-0668.

[[Page 12928]]

0
b. Remove the reference to section 852.211-71 and OMB Control Number 
2900-0588.
0
c. Remove the reference to section 852.211-73 and OMB Control Number 
2900-0585.
0
d. Remove ``852.236-82 through'';.
0
e. Add the reference to sections 852.232-70 and 852.232-71 and OMB 
control number 2900-0422 on the same line.
* * * * *

SUBCHAPTER B--[Amended]

0
3. The title of subchapter B is revised to read as follows:

SUBCHAPTER B--ACQUISITION PLANNING

PART 811--DESCRIBING AGENCY NEEDS

0
4. The authority citation for part 811 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702; and 
48 CFR 1.301-1.304.


Sec.  811.001  [Removed]

0
5. Section 811.001 is removed.
0
6. Revise subpart 811.1 to read as follows:

Subpart 811.1--Selecting and Developing Requirements Documents


Sec.  811.107-70  Contract clause.

    The Contracting Officer shall insert the clause at 852.211-70, 
Equipment Operation and Maintenance Manuals, in solicitations and 
contracts for technical medical, and other technical and mechanical 
equipment and devices where the requiring activity determines manuals 
are a necessary requirement for operation and maintenance of the 
equipment.
0
7. Revise subpart 811.2 to read as follows:

Subpart 811.2--Using and Maintaining Requirements Documents


Sec.  811.204-70  Contract clause.

    The Contracting Officer shall insert the clause at 852.211-72, 
Technical industry Standards, in solicitations and contracts requiring 
conformance to technical industry standards, federal specifications, 
standards and commercial item descriptions unless comparable coverage 
is included in the item specification.

Subpart 811.4--[Removed and reserved].

0
8. Subpart 811.4 is removed and reserved.

Subpart 811.5-- Removed and reserved]

0
9. Subpart 811.5 is removed and reserved.

Subpart 811.6--[Removed and reserved]

0
10. Subpart 811.6 is removed and reserved.

PART 832--CONTRACT FINANCING

0
11. The authority citation for part 832 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702; and 
48 CFR 1.301-1.304.

0
12. Section 832.001 is added to read as follows:


Sec.  832.001  Definitions.

    As used in this subpart:
    (a) Designated agency office means the office designated by the 
purchase order, agreement, or contract to first receive and review 
invoices. This office can be contractually designated as the receiving 
entity. This office may be different from the office issuing the 
payment.
    (b) Electronic form means an automated system transmitting 
information electronically according to the accepted electronic data 
transmission methods identified in 832.7002-1. Facsimile, email, and 
scanned documents are not acceptable electronic forms for submission of 
payment requests.
    (c) Payment request means any request for contract financing 
payment or invoice payment submitted by a contractor under a contract.
0
13. Revise section 832.006-1 to read as follows:


Sec.  832.006-1  General.

    (b) The Senior Procurement Executive (SPE) is authorized to make 
determinations that there is substantial evidence that contractors' 
requests for advance, partial, or progress payments are based on fraud 
and may direct that further payments to the contractors be reduced or 
suspended, as provided in FAR 32.006.


Sec.  832.006-2  [Removed].


Sec.  832.006-3  [Removed].

0
14. Remove sections 832.006-2 and 832.006-3.
0
15. Section 832.006-4 is revised to read as follows:


Sec.  832.006-4  Procedures.

    (b) The Remedy Coordination Official (RCO) for VA is the Deputy 
Senior Procurement Executive (DSPE) and shall carry out the 
responsibilities of the Secretary or designee in FAR 32.006-4(b). To 
determine whether substantial evidence exists that the request for 
payment under a contract is based on fraud.
    (e) The RCO shall carry out the responsibilities of the agency head 
in FAR 32.006-4(e) to notify the contractor of the reasons for the 
recommended action and of its right to submit information within a 
reasonable period of time in response to the proposed action under FAR 
32.006.
    (1) The notice of proposed action will be sent to the last known 
address of the contractor, the contractor's counsel, or agent for 
service of process, by certified mail, return receipt requested, or any 
other method that provides signed evidence of receipt. In the case of a 
business, the notice of proposed action may be sent to any partner, 
principal, officer, director, owner or co-owner, or joint venture. The 
contractor will be afforded an opportunity to appear before the RCO to 
present information or argument in person or through a representative 
and may supplement the oral presentation with written information and 
argument.
    (2) The contractor may supplement the oral presentation with 
written information and argument. The proceedings will be conducted in 
an informal manner and without the requirement for a transcript. If the 
RCO does not receive a reply from the contractor within 30 calendar 
days, the RCO will base his or her recommendations on the information 
available. Any recommendation of the RCO under FAR 31.006-4(a) and 
paragraph (b) of this section, must address the results of this 
notification and the information, if any, provided by the contractor. 
After reviewing all the information, the RCO shall make a 
recommendation to the SPE whether or not substantial evidence of fraud 
exists.
    (g) In addition to following the procedures in FAR 32.006-4, the 
SPE shall provide a copy of each final determination and the supporting 
documentation to the contractor, the RCO, the Contracting Officer, and 
the OIG. The Contracting Officer will place a copy of the determination 
and the supporting documentation in the contract file.

Subpart 832.1--Non-Commercial Item Purchase Financing

0
16. Section 832.111 is revised to read as follows:

[[Page 12929]]

Sec.  832.111-70  VA contract clauses for non-commercial purchases.

    (a)(1) Insert the clause at 852.232-70, Payments under fixed-price 
construction contracts (without NAS-CPM) in solicitations and contracts 
that contain the FAR clause at 52.232-5, Payments Under Fixed-Price 
Construction Contracts, and if the solicitation or contract does not 
require use of the ``Network Analysis System--Critical Path Method 
(NAS-CPM).''
    (2) If the solicitation or contract includes guarantee period 
services, the Contracting Officer shall use the clause with its 
Alternate I.
    (b)(1) Insert the clause at 852.232-71, Payments under fixed-price 
construction contracts (including NAS-CPM), in solicitations and 
contracts that contain the FAR clause at 52.232-5, Payments Under 
Fixed-Price Construction Contracts, and if the solicitation or contract 
requires use of the ``Network Analysis System--Critical Path Method 
(NAS-CPM).''
    (2) If the solicitation or contract includes guarantee period 
services, the Contracting Officer shall use the clause with its 
Alternate I.

Subpart 832.2--Commercial Item Purchase Financing


Sec.  832.201  [Removed].

0
17. Section 832.201 is removed.
0
18. Section 832.202-1 is revised to read as follows:


Sec.  832.202-1  Policy.

    (d) HCAs shall report, no later than December 31st of each calendar 
year, to the Senior Procurement Executive (SPE) and the DSPE, on the 
number of contracts for commercial items with unusual contract 
financing or with commercial interim or advance payments approved for 
the previous fiscal year. The report shall include the contract number 
and amount, the amount of the unusual contract financing or with 
commercial interim or advance payments approved, and the kind and 
amount of security obtained for the advance.
0
19. Section 832.202-4 is revised to read as follows:


Sec.  832.202-4  Security for Government financing.

    (a)(2) An offeror's financial condition may be considered adequate 
security to protect the Government's interest when the Government 
provides contract financing. In assessing the offeror's financial 
condition, the Contracting Officer may obtain, to the extent required, 
the following information--
    (i) A current year interim balance sheet and income statement and 
balance sheets and income statements for the two preceding fiscal 
years. The statements should be prepared in accordance with generally 
accepted accounting principles and must be audited and certified by an 
independent public accountant or an appropriate officer of the firm;
    (ii) A cash flow forecast for the remainder of the contract term 
showing the planned origin and use of cash within the firm or branch 
performing the contract;
    (iii) Information on financing arrangements disclosing the 
availability of cash to finance contract performance, the contractor's 
exposure to financial risk, and credit arrangements;
    (iv) A statement of the status of all State, local, and Federal tax 
accounts, including any special mandatory contributions;
    (v) A description and explanation of the financial effects of any 
leases, deferred purchase arrangements, patent or royalty arrangements, 
insurance, planned capital expenditures, pending claims, contingent 
liabilities, and other financial aspects of the business; and
    (vi) Any other financial information deemed necessary.

Subpart 832.4--Advance Payments for Non-Commercial Items

0
20. Section 832.402 is revised to read as follows:


Sec.  832.402  General.

    (c)(1)(iii) The authority to make the determination required by FAR 
32.402(c)(1)(iii) and to approve contract terms is delegated to the 
head of the contracting activity (HCA). The request for approval shall 
include the information required by FAR 32.409-1 and shall address the 
standards for advance payment in FAR 32.402(c)(2). HCAs shall report, 
no later than December 31st of each calendar year, to the Senior 
Procurement Executive (SPE) and the DSPE, on number of contracts for 
non-commercial items with advance payments approved in the previous 
fiscal year. The report shall include the contract number and amount, 
the amount of the advance payment, and the kind and amount of security 
obtained for the advance.
0
21. Amend section 832.404 by revising paragraph (b) to read as follows:


Sec.  832.404  Exclusions.

* * * * *
    (b)(1) As permitted by 31 U.S.C. 3324(d)(2), VA allows advance 
payment for subscriptions or other charges for newspapers, magazines, 
periodicals, and other publications for official use, notwithstanding 
the provisions of 31 U.S.C. 3324(a). The term ``other publications'' 
includes any publication printed, microfilmed, photocopied or 
magnetically or otherwise recorded for auditory or visual use.
    (2) As permitted by 31 U.S.C. 1535, VA allows advance payment for 
services and supplies obtained from another Government agency.
    (3) As permitted by 5 U.S.C. 4109, VA allows advance payment for 
all or any part of the necessary expenses for training Government 
employees, including obtaining professional credentials under 5 U.S.C. 
5757, in Government or non-Government facilities, including the 
purchase or rental of books, materials, and supplies or services 
directly related to the training of a Government employee.
* * * * *

Subpart 832.5--5 [Removed and reserved].

0
22. Subpart 832.5 is removed and reserved.

Subpart 832.8 [Removed and reserved].

0
23. Subpart 832.8 is removed and reserved.

Subpart 832.9--Prompt Payment


Sec.  832.904  [Redesignated as 832.904-70].

0
24. Redesignate section 832.904 as 832.904-70 and revise newly 
redesignated section 832.904-70 to read as follows:


Sec.  832.904-70  Determining payment due dates for small businesses.

    Pursuant to Office of Management and Budget Memorandum M-11-32, 
dated September 14, 2011, Contracting Officers shall, to the full 
extent permitted by law, make payments to small business contractors as 
soon as practicable, with the goal of making payments within 15 days of 
receipt of a proper invoice and confirmation that the goods and 
services have been received and accepted by the Federal Government.


Sec.  832.11  [Removed and reserved].

0
25. Subpart 832.11 is removed and reserved.
0
26. Revise subpart 832.70 to read as follows:

Subpart 832.70--Electronic Invoicing Requirements

Sec
832.7000 General
832.7001 Electronic payment requests
832.7001-1 Data transmission
832.7001-2 Contract clause

[[Page 12930]]

Sec.  832.7000  General.

    This subpart prescribes policy requirements for submitting and 
processing payment requests in electronic form.


Sec.  832.7001  Electronic payment requests.

    (a) The contractor shall submit payment requests in electronic form 
unless directed by the Contracting Officer to submit payment requests 
by mail. Purchases paid with a Government-wide commercial purchase card 
are considered to be an electronic transaction for purposes of this 
rule, and therefore no additional electronic invoice submission is 
required.
    (b) The Contracting Officer may direct the contractor to submit 
payment requests by mail, through the United States Postal Service, to 
the designated agency office for--
    (1) Awards made to foreign vendors for work performed outside the 
United States;
    (2) Classified contracts or purchases when electronic submission 
and processing of payment requests could compromise the safeguarding of 
classified or privacy information;
    (3) Contracts awarded by Contracting Officers in the conduct of 
emergency operations, such as responses to national emergencies;
    (4) Solicitations or contracts in which the designated agency 
office is a VA entity other than the VA Financial Services Center in 
Austin, Texas; or
    (5) Solicitations or contracts in which the VA designated agency 
office does not have electronic invoicing capability as described 
above.


Sec.  832.7001-1  Data transmission.

    The contractor shall submit electronic payment requests through--
    (a) VA's Electronic Invoice Presentment and Payment System at the 
current website address provided in the contract; or
    (b) A system that conforms to the X12 electronic data interchange 
(EDI) formats established by the Accredited Standards Center (ASC) 
chartered by the American National Standards Institute (ANSI).


Sec.  832.7001-2  Contract clause.

    The Contracting Officer shall insert the clause at 852.232-72, 
Electronic submission of payment requests, in solicitations and 
contracts exceeding the micro-purchase threshold, except those for 
which the Contracting Officer has directed otherwise under 832.7001, 
and those paid with a Governmentwide commercial purchase card.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
27. The authority citation for part 852 is revised to read as follows:

    Authority: 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 
41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

Subpart 852.2--Text of Provisions and Clauses

0
28. Section 852.211-70 is revised to read as follows:


Sec.  852.211-70  Equipment Operation and Maintenance Manuals.

    As prescribed in 811.107-70, insert the following clause:

EQUIPMENT OPERATION AND MAINTENANCE MANUALS (DATE)

    The contractor shall follow standard commercial practices to 
furnish manual(s), handbook(s) or brochure(s) containing operation, 
installation, and maintenance instructions, including pictures or 
illustrations, schematics, and complete repair/test guides, as 
necessary, for technical medical equipment and devices, and/or other 
technical and mechanical equipment provided per CLIN(s) # 
(Contracting Officer insert CLIN information). The manuals, 
handbooks or brochures shall be provided in hard copy, soft copy or 
with electronic access instructions, consistent with standard 
industry practices for the equipment or device. Where applicable, 
the manuals, handbooks or brochures will include electrical data and 
connection diagrams for all utilities. The documentation shall also 
contain a complete list of all replaceable parts showing part 
number, name, and quantity required.


(End of clause)


Sec.  852.211-71  [Removed and reserved].

0
29. Section 852.211-71 is removed and reserved.
0
30. Section 852.211-72 is revised to read as follows:


Sec.  852.211-72  Technical Industry Standards.

    As prescribed in 811.204-70, insert the following clause:

TECHNICAL INDUSTRY STANDARDS (DATE)

    (a) The contractor shall conform to the standards established 
by: (Contracting Officer: Insert name of organization establishing 
the requirement, reference title, cite and date, e.g., United States 
Department of Agriculture (USDA), Institutional Meat Purchase 
Specifications (IMPS), Series 100, Beef products, Jan 2010) as to 
(Contracting Officer: Insert item and CLIN, e.g. CLIN 0005 Ground 
Beef).
    (b) The contractor shall submit proof of conformance to the 
standard. This proof may be a label or seal affixed to the equipment 
or supplies, warranting that the item(s) have been tested in 
accordance with the standards and meet the contract requirement. 
Proof may also be furnished by the organization listed above 
certifying that the item(s) furnished have been tested in accordance 
with and conform to the specified standards.
    (c) Offerors may obtain the standards cited in this provision by 
submitting a request, including the solicitation number, title and 
number of the publication to: (Organization)__ (Mail or email 
address) __
    (d) The offeror shall contact the Contracting Officer if 
response is not received within two weeks of the request.


(End of clause)


Sec.  852.211-73  [Removed and reserved].


Sec.  852.211-74  [Removed and reserved].


Sec.  852.211-75  [Removed and reserved].

0
31. Remove and reserve sections 852.211-73 through 852.211-75.
0
32. Add section 852.232-70 to read as follows:


Sec.  852.232-70  Payments under fixed-price construction contracts 
(without NAS-CPM).

    As prescribed in 832.111-70, insert the following clause in 
contracts that do not contain a section entitled ``Network Analysis 
System--Critical Path Method (without NAS-CPM)''

Payments Under Fixed-Price Construction Contracts (Without NAS-CPM) 
(Date)

    The clause FAR 52.232-5, Payments under Fixed-Price Construction 
Contracts, is implemented as follows:
    (a) Retainage.
    (1) The Contracting officer may retain funds--
    (i) Where performance under the contract has been determined to 
be deficient or the Contractor has performed in an unsatisfactory 
manner in the past; or
    (ii) As the contract nears completion, to ensure that 
deficiencies will be corrected and that completion is timely.
    (2) Examples of deficient performance justifying a retention of 
funds include, but are not restricted to, the following--
    (i) Unsatisfactory progress as determined by the Contracting 
Officer;
    (ii) Failure to meet schedule in Schedule of Work Progress;
    (iii) Failure to present submittals in a timely manner; or
    (iv) Failure to comply in good faith with approved 
subcontracting plans, certifications, or contract requirements.
    (3) Any level of retention shall not exceed 10 percent either 
where there is determined to be unsatisfactory performance, or when 
the retainage is to ensure satisfactory completion. Retained amounts 
shall be paid promptly upon completion of all contract requirements, 
but nothing contained in this subparagraph shall be construed as 
limiting the Contracting Officer's right to withhold funds under 
other provisions of the contract or in accordance with the general 
law and

[[Page 12931]]

regulations regarding the administration of Government contracts.
    (b) The Contractor shall submit a schedule of cost to the 
Contracting Officer for approval within 30 calendar days after date 
of receipt of notice to proceed. Such schedule will be signed and 
submitted in triplicate. The approved cost schedule will be one of 
the bases for determining progress payments to the Contractor for 
work completed. This schedule shall show cost by the work activity/
event for each building or unit of the contract, as instructed by 
the resident engineer.
    (1) The work activities/events shall be subdivided into as many 
sub-activities/events as are necessary to cover all component parts 
of the contract work.
    (2) Costs as shown on this schedule must be true costs and the 
resident engineer may require the Contractor to submit the original 
estimate sheets or other information to substantiate the detailed 
makeup of the schedule.
    (3) The sums of the sub-activities/events, as applied to each 
work activity/event, shall equal the total cost of such work 
activity/event. The total cost of all work activities/events shall 
equal the contract price.
    (4) Insurance and similar items shall be prorated and included 
in the cost of each branch of the work.
    (5) The cost schedule shall include separate cost information 
for the systems listed in the table in this subparagraph (b)(5). The 
percentages listed below are proportions of the cost listed in the 
Contractor's cost schedule and identify, for payment purposes, the 
value of the work to adjust, correct and test systems after the 
material has been installed. Payment of the listed percentages will 
be made only after the Contractor has demonstrated that each of the 
systems is substantially complete and operates as required by the 
contract.

           Value of Adjusting, Correcting, and Testing System
------------------------------------------------------------------------
                         System                               Percent
------------------------------------------------------------------------
Pneumatic tube system...................................              10
Incinerators (medical waste and trash)..................               5
Sewage treatment plant equipment........................               5
Water treatment plant equipment.........................               5
Washers (dish, cage, glass, etc.).......................               5
Sterilizing equipment...................................               5
Water distilling equipment..............................               5
Prefab temperature rooms (cold, constant temperature)...               5
Entire air-conditioning system (Specified under 600                    5
 Sections)..............................................
Entire boiler plant system (Specified under 700                        5
 Sections)..............................................
General supply conveyors................................              10
Food service conveyors..................................              10
Pneumatic soiled linen and trash system.................              10
Elevators and dumbwaiters...............................              10
Materials transport system..............................              10
Engine-generator system.................................               5
Primary switchgear......................................               5
Secondary switchgear....................................               5
Fire alarm system.......................................               5
Nurse call system.......................................               5
Intercom system.........................................               5
Radio system............................................               5
TV (entertainment) system...............................               5
------------------------------------------------------------------------

    (c) In addition to this cost schedule, the Contractor shall 
submit such unit costs as may be specifically requested. The unit 
costs shall be those used by the Contractor in preparing its bid and 
will not be binding as pertaining to any contract changes.
    (d) The Contracting Officer will consider for monthly progress 
payments material and/or equipment procured by the Contractor and 
stored on the construction site, as space is available, or at a 
local approved location off the site, under such terms and 
conditions as the Contracting Officer approves, including but not 
limited to the following--
    (1) The materials or equipment are in accordance with the 
contract requirements and/or approved samples and shop drawings;
    (2) The materials and/or equipment are approved by the resident 
engineer;
    (3) The materials and/or equipment are stored separately and are 
readily available for inspection and inventory by the resident 
engineer;
    (4) The materials and/or equipment are protected against 
weather, theft and other hazards and are not subjected to 
deterioration; and
    (5) The Contractor obtains the concurrence of its surety for 
off-site storage.
    (e) The Government reserves the right to withhold payment until 
samples, shop drawings, engineer's certificates, additional bonds, 
payrolls, weekly statements of compliance, proof of title, 
nondiscrimination compliance reports, or any other requirements of 
this contract, have been submitted to the satisfaction of the 
Contracting officer.
    (f) The Contracting Officer will notify the Contractor in 
writing within 10 calendar-days of exercising retainage against any 
payment in accordance with FAR clause 52.232-5(e). The notice shall 
disclose the amount of the retainage in value and percent retained 
from the payment, and provide explanation for the retainage.


(End of clause)

    Alternate I (DATE). If the specifications include guarantee 
period services, the Contracting officer shall include the following 
paragraphs as additions to paragraph (b) of the basic clause:
    (6)(i) The Contractor shall at the time of contract award 
furnish the total cost of the guarantee period services in 
accordance with specification section(s) covering guarantee period 
services. The Contractor shall submit, within 15 calendar days of 
receipt of the notice to proceed, a guarantee period performance 
program that shall include an itemized accounting of the number of 
work-hours required to perform the guarantee period service on each 
piece of equipment. The Contractor shall also submit the established 
salary costs, including employee fringe benefits, and what the 
contractor reasonably expects to pay over the guarantee period, all 
of which will be subject to the Contracting officer's approval.
    (ii) The cost of the guarantee period service shall be prorated 
on an annual basis and paid in equal monthly payments by VA during 
the period of guarantee. In the event the installer does not perform 
satisfactorily during this period, all payments may be withheld and 
the Contracting Officer shall inform the contractor of the 
unsatisfactory performance, allowing the contractor 10 days to 
correct deficiencies and comply with the contract. The guarantee 
period service is subject to those provisions as set forth in the 
Payments and Default clauses.

0
33. Add section 852.232-71 to read as follows:

[[Page 12932]]

Sec.  852.232-71  Payments under fixed-price construction contracts 
(including NAS-CPM).

    As prescribed in 832.111-70, insert the following clause in 
contracts that contain a section entitled ``Network Analysis System--
Critical Path Method (NAS-CPM).''

Payments Under Fixed-Price Construction Contracts (Including NAS-CPM) 
(Date)

    The clause FAR 52.232-5, Payments under Fixed-Price Construction 
Contracts, is implemented as follows:
    (a) Retainage.
    (1) The Contracting Officer may retain funds--
    (i) Where performance under the contract has been determined to 
be deficient or the Contractor has performed in an unsatisfactory 
manner in the past; or
    (ii) As the contract nears completion, to ensure that 
deficiencies will be corrected and that completion is timely.
    (2) Examples of deficient performance justifying a retention of 
funds include, but are not restricted to, the following--
    (i) Unsatisfactory progress as determined by the Contracting 
Officer;
    (ii) Failure to meet schedule in Schedule of Work Progress;
    (iii) Failure to present submittals in a timely manner; or
    (iv) Failure to comply in good faith with approved 
subcontracting plans, certifications, or contract requirements.
    (3) Any level of retention shall not exceed 10 percent either 
where there is determined to be unsatisfactory performance, or when 
the retainage is to ensure satisfactory completion. Retained amounts 
shall be paid promptly upon completion of all contract requirements, 
but nothing contained in this subparagraph shall be construed as 
limiting the Contracting Officer's right to withhold funds under 
other provisions of the contract or in accordance with the general 
law and regulations regarding the administration of Government 
contracts.
    (b) The Contractor shall submit a schedule of costs in 
accordance with the requirements of section ``Network Analysis 
System -- Critical Path Method (NAS-CPM)'' to the Contracting 
Officer for approval within 90 calendar days after date of receipt 
of notice to proceed. The approved cost schedule will be one of the 
bases for determining progress payments to the Contractor for work 
completed.
    (1) Costs as shown on this schedule must be true costs and the 
resident engineer may require the contractor to submit its original 
estimate sheets or other information to substantiate the detailed 
makeup of the cost schedule.
    (2) The total costs of all work activities/events shall equal 
the contract price.
    (3) Insurance and similar items shall be prorated and included 
in each work activity/event cost of the critical path method (CPM).
    (4) The CPM shall include a separate cost loaded activity for 
adjusting and testing of the systems listed in the table in 
paragraph (b)(5) of this section. The percentages listed below will 
be used to determine the cost of adjust and test work activities/
events and identify, for payment purposes, the value of the work to 
adjust, correct and test systems after the material has been 
installed.
    (5) Payment for adjust and test activities will be made only 
after the Contractor has demonstrated that each of the systems is 
substantially complete and operates as required by the contract.

           Value of Adjusting, Correcting, and Testing System
------------------------------------------------------------------------
                         System                               Percent
------------------------------------------------------------------------
Pneumatic tube system...................................              10
Incinerators (medical waste and trash)..................               5
Sewage treatment plant equipment........................               5
Water treatment plant equipment.........................               5
Washers (dish, cage, glass, etc.).......................               5
Sterilizing equipment...................................               5
Water distilling equipment..............................               5
Prefab temperature rooms (cold, constant temperature)...               5
Entire air-conditioning system (Specified under 600                    5
 Sections)..............................................
Entire boiler plant system (Specified under 700                        5
 Sections)..............................................
General supply conveyors................................              10
Food service conveyors..................................              10
Pneumatic soiled linen and trash system.................              10
Elevators and dumbwaiters...............................              10
Materials transport system..............................              10
Engine-generator system.................................               5
Primary switchgear......................................               5
Secondary switchgear....................................               5
Fire alarm system.......................................               5
Nurse call system.......................................               5
Intercom system.........................................               5
Radio system............................................               5
TV (entertainment) system...............................               5
------------------------------------------------------------------------

    (c) In addition to this cost schedule, the Contractor shall 
submit such unit costs as may be specifically requested. The unit 
costs shall be those used by the Contractor in preparing its bid and 
will not be binding as pertaining to any contract changes.
    (d) The Contracting Officer will consider for monthly progress 
payments material and/or equipment procured by the Contractor and 
stored on the construction site, as space is available, or at a 
local approved location off the site, under such terms and 
conditions as the Contracting Officer approves, including but not 
limited to the following--
    (1) The materials or equipment are in accordance with the 
contract requirements and/or approved samples and shop drawings;
    (2) The materials and/or equipment are approved by the resident 
engineer;
    (3) The materials and/or equipment are stored separately and are 
readily available for inspection and inventory by the resident 
engineer;
    (4) The materials and/or equipment are protected against 
weather, theft and other hazards and are not subjected to 
deterioration; and
    (5) The contractor obtains the concurrence of its surety for 
off-site storage.
    (e) The Government reserves the right to withhold payment until 
samples, shop drawings, engineer's certificates, additional bonds, 
payrolls, weekly statements of compliance, proof of title, 
nondiscrimination compliance reports, or any other requirements of 
this contract, have been submitted to the satisfaction of the 
Contracting Officer.
    (f) The Contracting Officer will notify the Contractor in 
writing within 10 calendar-days of exercising retainage against any 
payment in accordance with FAR clause 52.232-5(e). The notice shall 
disclose the amount of the retainage in value and percent retained 
from the payment, and provide explanation for the retainage.


(End of clause)

    Alternate I (DATE). If the specifications include guarantee 
period services, the Contracting officer shall include the

[[Page 12933]]

following paragraphs as additions to paragraph (b) of the basic 
clause:
    (6)(i) The Contractor shall show on the critical path method 
(CPM) the total cost of the guarantee period services in accordance 
with the guarantee period service section(s) of the specifications. 
This cost shall be priced out when submitting the CPM cost loaded 
network. The cost submitted shall be subject to the approval of the 
Contracting Officer. The activity on the CPM shall have money only 
and not activity time.
    (ii) The Contractor shall submit with the CPM a guarantee period 
performance program which shall include an itemized accounting of 
the number of work-hours required to perform the guarantee period 
service on each piece of equipment. The Contractor shall also submit 
the established salary costs, including employee fringe benefits, 
and what the contractor reasonably expects to pay over the guarantee 
period, all of which will be subject to the Contracting Officer's 
approval.
    (iii) The cost of the guarantee period service shall be prorated 
on an annual basis and paid in equal monthly payments by VA during 
the period of guarantee. In the event the installer does not perform 
satisfactorily during this period, all payments may be withheld and 
the Contracting Officer shall inform the contractor of the 
unsatisfactory performance, allowing the Contractor 10 days to 
correct and comply with the contract. The guarantee period service 
is subject to those provisions as set forth in the Payments and 
Default clauses.

0
34. Section 852.232-72 is revised to read as follows:


Sec.  852.232-72  Electronic submission of payment requests.

    As prescribed in 832.7001-2, insert the following clause:

Electronic Submission of Payment Requests (Date)

    (a) Definitions. As used in this clause--
    (1) Contract financing payment has the meaning given in FAR 
32.001.
    (2) Designated agency office means the office designated by the 
purchase order, agreement, or contract to first receive and review 
invoices. This office can be contractually designated as the 
receiving entity. This office may be different from the office 
issuing the payment.
    (3) Electronic form means an automated system transmitting 
information electronically according to the accepted electronic data 
transmission methods and formats identified in paragraph (c) of this 
clause. Facsimile, email, and scanned documents are not acceptable 
electronic forms for submission of payment requests.
    (4) Invoice payment has the meaning given in FAR 32.001.
    (5) Payment request means any request for contract financing 
payment or invoice payment submitted by the contractor under this 
contract.
    (b) Electronic payment requests. Except as provided in paragraph 
(e) of this clause, the contractor shall submit payment requests in 
electronic form. Purchases paid with a Government-wide commercial 
purchase card are considered to be an electronic transaction for 
purposes of this rule, and therefore no additional electronic 
invoice submission is required.
    (c) Data transmission. A contractor must ensure that the data 
transmission method and format are through one of the following:
    (1) VA's Electronic Invoice Presentment and Payment System at 
the current website address provided in the contract.
    (2) Any system that conforms to the X12 electronic data 
interchange (EDI) formats established by the Accredited Standards 
Center (ASC) and chartered by the American National Standards 
Institute (ANSI).
    (d) Invoice requirements. Invoices shall comply with FAR 32.905.
    (e) Exceptions. If, based on one of the circumstances below, the 
Contracting Officer directs that payment requests be made by mail, 
the contractor shall submit payment requests by mail through the 
United States Postal Service to the designated agency office. 
Submission of payment requests by mail may be required for--
    (1) Awards made to foreign vendors for work performed outside 
the United States;
    (2) Classified contracts or purchases when electronic submission 
and processing of payment requests could compromise the safeguarding 
of classified or privacy information;
    (3) Contracts awarded by Contracting Officers in the conduct of 
emergency operations, such as responses to national emergencies;
    (4) Solicitations or contracts in which the designated agency 
office is a VA entity other than the VA Financial Services Center in 
Austin, Texas; or
    (5) Solicitations or contracts in which the VA designated agency 
office does not have electronic invoicing capability as described 
above.


(End of clause)


Sec.  852.236-82  [Removed and reserved].


Sec.  852.236-83  [Removed and reserved].

0
35. Remove and reserve sections 852.236-82 and 852.236-83.

PART 870--SPECIAL PROCUREMENT CONTROLS

0
36. The authority citation for part 870 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.


Sec.  870.112  [Removed]


Sec.  870.113  [Removed]

0
37. Remove sections 870. 112 and 870.113.

[FR Doc. 2018-04002 Filed 3-23-18; 8:45 am]
BILLING CODE 8320-01-P