[Federal Register Volume 83, Number 73 (Monday, April 16, 2018)]
[Rules and Regulations]
[Pages 16206-16210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-07833]


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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) in this final rule 
amends six clauses or provisions and removes one clause which 
duplicates current FAR coverage and is not needed, provides updated 
policy on variations, tolerances and exemptions regarding overtime in 
contracts providing nursing home care for veterans, removes an 
information collection burden on an outdated practice of using bid 
envelopes; clarifies language regarding the prohibition of contractors 
from making reference in their commercial advertising, and revises 
definitions relating to D&S Committee, Debarring Official and 
Suspending Official currently contained in the VAAR. This document 
adopts as a final rule, with three technical non-substantive changes, 
the proposed rule published in the Federal Register on May 17, 2017.

DATES: This rule is effective on May 16, 2018.

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) 632-5276. (This is not a 
toll-free telephone number.)

SUPPLEMENTARY INFORMATION: On May 17, 2017, VA published a proposed 
rule in the Federal Register (82 FR 22635), which announced VA`s intent 
to amend regulations for VAAR Case 2014-V001. In addition to the 
revisions outlined in the summary, this final rule also updates the 
policy governing improper business practices and personal conflicts of 
interests, and provides the agency's procedures on due process rights 
and who in VA determines whether or not a violation of the Gratuities 
clause has occurred. The rule adds clarifying information on sealed 
bidding including preparation of invitations for bids and other general 
rules for solicitation of bids. VA provided a 60-day comment period for 
the public to respond to the proposed rule. The comment period for the 
proposed rule ended on July 17, 2017 and VA received no comments. The 
proposed rule is being adopted as final, with three technical non-
substantive changes and minor stylistic and grammatical edits.

Technical Non-Substantive Changes to the Proposed Rule

    The final rule makes administrative changes to two of the 
authorities for the parts on the recommendation of counsel, 
specifically the removal of 38 U.S.C. 501, and the addition of 41 
U.S.C. 1702 which addresses overall direction of procurement policy, 
acquisition planning and management responsibilities of Chief 
Acquisition Officers and Senior Procurement Executives, including 
implementation of unique procurement policies, regulations, and 
standards of the agency. 38 U.S.C. 501 is a more general authority of 
the Secretary of the Department of Veterans Affairs to

[[Page 16207]]

prescribe all rules and regulations which are necessary or appropriate 
to carry out the laws administered by the Department. The Title 41 
authority is the more appropriate authority to cite when publishing the 
VA Acquisition Regulation.
    The final rule, in section 802.101, will remove definitions and 
titles relating to D&S Committee, Debarring official, and Suspending 
official and replaces them with two definitions/titles and the acronyms 
now in use in the agency: Suspending and Debarring Official (SDO) and 
Suspension and Debarment Committee (S&D Committee). These were properly 
updated via VAAR Class Deviation issued on June 2, 2017, after the 
proposed rule was published for public comment.
    This final rule has Federal Register administrative format changes 
in the amendatory text which makes no substantive text changes at the 
affected sections.

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 final rule will have no such effect on 
State, local, and tribal Governments or on the private sector.

Paperwork Reduction Act

    Although this action contains provisions constituting collections 
of information at 48 CFR 814.201-6(a) and 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 final rule. The information collection 
requirements for 48 CFR 814.201-6(a) and 852.214-70 are currently 
approved by OMB, have been assigned OMB control number 2900-0593, and 
are being removed and discontinued. This results in a removal of 2 
estimated annual burden hours to respondents.

Regulatory Flexibility Act

    This final 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. The rule text does not 
change VA's policy regarding small businesses. Therefore, the rule does 
not have a significant economic impact on substantial number of small 
entities. There are no increased and/or decreased costs to small 
entities. The overall impact of this final 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, this final 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 final rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

Executive Orders 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. This final rule is considered an E.O. 13771 deregulatory action. 
Details on the estimated cost savings of this final rule can be found 
in the rule's economic analysis.
    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.

List of Subjects

48 CFR Part 801

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

48 CFR Parts 802, 812 and 814

    Government procurement.

48 CFR Part 803

    Antitrust, Conflict of interest, Government procurement.

48 CFR Part 822

    Government procurement, Labor.

48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

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 February 23, 2018, for publication.

    Dated: March 13, 2018.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.
    For the reasons set out in the preamble, VA amends 48 CFR 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: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 
1702; and 48 CFR 1.301-1.304.


801.106  [Amended]

0
2. In section 801.106, table columns titled ``48 CFR part or section 
where identified and described'' and ``Current

[[Page 16208]]

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:  40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 
1702; and 48 CFR 1.301-1.304.


0
4. Section 802.101 is amended to remove definitions of ``D&S 
Committee,'' ``Debarring Official,'' and ``Suspending official,'' and 
to add definitions of ``Suspending and Debarring Official (SDO)'' and 
``Suspension and Debarment Committee (S&D Committee)'' in alphabetical 
order to read as follows:


802.101  Definitions.

* * * * *
    Suspending and Debarring Official (SDO) means the Senior 
Procurement Executive (SPE) or Deputy Senior Procurement Executive 
(DSPE) if further delegated in writing by the SPE.
    Suspension and Debarment Committee (S&D Committee) means a 
committee authorized by the SDO to assist the SDO with suspension and 
debarment related matters.
* * * * *

PART 803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

0
5. The authority citation for part 803 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 
U.S.C.1702; and 48 CFR 1.301-1.304.

Subpart 803.1 [Removed and reserved]

0
6. Subpart 803.1 is removed and reserved.

0
 7. Section 803.204 is revised to read as follows:
    In providing the notice and hearing required by FAR 3.204, the 
following applies--


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
8. Subpart 803.3 is removed and reserved.

Subpart 803.4 [Removed and reserved]

0
9. Subpart 803.4 is removed and reserved.


803.502  [Removed]

0
10. Section 803.502 is removed.

0
11. 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
12. Subpart 803.6 is removed and reserved.

Subpart 803.7 [Removed and reserved]

0
13. Subpart 803.7 is removed and reserved.

Subpart 803.8 [Removed and reserved]

0
14. Subpart 803.8 is removed and reserved.

0
15. 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
16. Subpart 803.70 is removed and reserved.

PART 812--ACQUISITION OF COMMERCIAL ITEMS

0
17. The authority citation for part 812 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 
1702; and 48 CFR 1.301-1.304.


0
18. Section 812.301 is amended by revising paragraph (b)(13) 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
19. 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); 41 U.S.C. 
1702; and 48 CFR 1.301-1.304.

Subpart 814.1 [Removed and reserved]

0
20. Subpart 814.1 is removed and reserved.

0
21. Section 814.201 is revised to read as follows:


814.201   Preparation of invitations for bids.

0
22. Section 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

[[Page 16209]]

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
23. Section 814.201-6 is revised 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 Item(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 Item(s), 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 (a)(1) or (2) of this section, 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
24. Sections 814.202 and 814.202-4 are added 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.
    (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 and 814.203-1  [Removed]

0
25. Sections 814.203 and 814.203-1 are removed.


814.204  [Removed]

0
26. Section 814.204 is removed.


814.208   [Removed]

0
27. Section 814.208 is removed.


814.301  [Removed]

0
28. Section 814.301 is removed.


814.302  [Removed]

0
29. Section 814.302 is removed.

0
30. Section 814.304 is revised 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
31. Subpart 814.4 is removed and reserved.

PART 822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
32. The authority citation for part 822 is revised to read as follows:

    Authority:  40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 29 CFR 
5.15(d); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.


0
33. 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.

0
34. 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 all 
subcontracts, at any tier.

Subpart 822.4 [Removed and reserved].

0
35. Subpart 822.4 is removed and reserved.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
36. The authority citation for part 852 continues to read as follows:

    Authority: 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 
41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

Subpart 852.2--Texts of Provisions and Clauses

0
37. 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:

[[Page 16210]]

Commercial Advertising (May 2018)

    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
38. Section 852.203-71 is removed and reserved.


852.214-70  [Removed and reserved].

0
39. Section 852.214-70 is removed and reserved.

0
40. Section 852.214-71 is revised to read as follows:


852.214-71  Restrictions on alternate item(s).

    As prescribed in 814.201-6(a)(1), insert the following provision:

Restrictions on Alternate Item(s) (May 2018)

    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)

0
41. Section 852.214-72 is revised to read as follows:


852.214-72  Alternate item(s).

    As prescribed in 814.201-6(a)(2), insert the following provision:

Alternate Item(s) (May 2018)

    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)

0
42. Section 852.214-73 is revised to read as follows:


852.214-73  Alternate packaging and packing.

    As prescribed in 814.201-6(a)(3), insert the following provision:

Alternate Packaging and Packing (May 2018)

    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)

0
43. Section 852.214-74 is revised to read as follows:


852.214-74  Marking of bid samples.

    As prescribed in 814.201-6(b), insert the following provision:

Marking of Bid Samples (May 2018)

    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)

0
44. 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 (May 2018)

    (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. 2018-07833 Filed 4-13-18; 8:45 am]
BILLING CODE 8320-01-P