[Federal Register Volume 83, Number 230 (Thursday, November 29, 2018)]
[Proposed Rules]
[Pages 61365-61372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-25618]


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DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 801, 823, 824, 826, 836, 843, and 852

RIN 2900-AQ24


VA Acquisition Regulation: Environment, Energy and Water 
Efficiency, Renewable Energy Technologies, Occupational Safety, and 
Drug-Free Workplace; Protection of Privacy and Freedom of Information; 
Other Socioeconomic Programs; and Contract Modifications

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revise or remove any policy superseded by changes in the Federal 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 procedural guidance that is 
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outdated and duplicative requirements and reduce burden on contractors.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 will publish 
them in the Federal Register. VA will combine related topics, as 
appropriate. In particular, this rulemaking would add VAAR coverage 
concerning Environment, Energy and Water Efficiency, Renewable Energy 
Technologies, Occupational Safety, and Drug-Free Workplace; Other 
Socioeconomic Programs; and Contract Modifications. This rulemaking 
revises VAAR concerning Protection of Privacy and Freedom of 
Information, Department of Veterans Affairs Acquisition Regulation 
System, Construction and Architect-Engineer Contracts and Solicitation 
Provisions and Contract Clauses.

DATES: Comments must be received on or before January 28, 2019 to be

[[Page 61366]]

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. (This is not a toll-free number.) Comments should indicate 
that they are submitted in response to ``RIN 2900-AQ24-VA Acquisition 
Regulation: Environment, Energy and Water Efficiency, Renewable Energy 
Technologies, Occupational Safety, and Drug-Free Workplace; Protection 
of Privacy and Freedom of Information; Other Socioeconomic Programs; 
and Contract Modifications.'' 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. Rafael N. Taylor, Senior 
Procurement Analyst, Procurement Policy and Warrant Management 
Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382-
2787. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: 

Background

    This rulemaking is issued under the authority of the Office of 
Federal Procurement Policy 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 consistent with FAR content. The 
VAAR is divided into subchapters, parts (each of which covers a 
separate aspect of acquisition), subparts, and sections.
    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.

Discussion and Analysis

    VA proposes to make the following changes to the VAAR in this phase 
of its revision and streamlining initiative. For procedural guidance 
cited below that is proposed to be deleted from the VAAR, each section 
cited for removal has been considered for inclusion in VA's internal 
agency operating procedures in accordance with FAR 1.301(a)(2). 
Similarly, delegations of authorities that are removed from the VAAR 
will be included in the VAAM as internal departmental guidance. The 
VAAM is being created in parallel with these revisions to the VAAR and 
is not subject to the rulemaking process as they are internal VA 
procedures and guidance. The VAAM will not be finalized until 
corresponding VAAR parts are finalized, and therefore the VAAM is not 
yet available on line.

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

    In the table in section 801.106, this proposed rule would renumber 
section 852.236-88 to read 852.243-70 against OMB Control Number 2900-
0422.

VAAR Part 823--Environment, Energy and Water Efficiency, Renewable 
Energy Technologies, Occupational Safety, and Drug-Free Workplace

    We propose to add part 823, Environment, Energy and Water 
Efficiency, Renewable Energy Technologies, Occupational Safety, and 
Drug-Free Workplace. The authorities cited for this part are: 40 U.S.C. 
121(c), which grants the authority for the head of each executive 
agency to issue orders and directives that the agency head considers 
necessary to carry out the regulations; 41 U.S.C. 1702, which addresses 
the acquisition planning and management responsibilities of Chief 
Acquisition Officers and Senior Procurement Executives, to include 
implementation of unique procurement policies, regulations and 
standards of the executive agency; and 48 CFR 1.301-1.304, which 
authorizes agencies to issue acquisition regulations that implement or 
supplement the FAR.
    Under subpart 823.1, Sustainable Acquisition Policy, we propose to 
add 823.103-70, Policy, to give contracting officers the option to 
include an evaluation factor for an offeror's Sustainable Action Plan 
when acquiring sustainable products and services. This section would 
also require offerors to provide their Sustainable Action Plan in their 
technical proposals when required by the solicitation.
    We propose to add 823.103-71, Solicitation provision, which 
prescribes use of a new provision at 852.823-70, Instruction to 
Offerors--Sustainable Acquisition Plan, when the contracting officer 
requires an offeror to submit a Sustainable Action Plan with its 
proposal.
    We propose to add 823.103-72, Contract file, to require the 
contracting officer to place the contractor's final Sustainable 
Acquisition Plan, if one is required, into the official contract file.
    In subpart 823.3, Hazardous Material Identification and Material 
Safety Data, we propose to add 823.300, Scope of subpart, and 823.303-
70, Contract clause, to prescribe the use of clause 852.223-71, Safety 
and Health, for use in administering safety and health requirements in 
solicitations and contracts for research, development, or test 
projects; transportation of hazardous materials; and construction.

VAAR Part 824--Protection of Privacy and Freedom of Information

    We propose to amend the authority citation for this part to include 
5 U.S.C. 552a, the statute governing use and maintenance of records on 
individuals, conditions of disclosure, and the authority for agencies 
to promulgate rules governing such records; 41 U.S.C. 1121(c), which 
speaks to the authority of an executive agency under another law to 
prescribe policies, regulations, procedures, and forms for procurement; 
41 U.S.C. 1702, which addresses the acquisition planning and management 
responsibilities of Chief Acquisition Officers and Senior Procurement 
Executives, to include implementation of unique procurement policies, 
regulations and standards of the executive agency. The authorities 
cited for this part are 5 U.S.C. 552a; 40 U.S.C. 121(c), which grants 
the authority for the head of each executive agency to issue orders and 
directives that the agency head considers necessary to carry out the 
regulations; 41 U.S.C. 1121(c); 41 U.S.C. 1702; 38 CFR 1.550-1.562, and 
1.575-1.584, which contain

[[Page 61367]]

the rules followed by VA in processing requests for records under the 
Freedom of Information Act; and 48 CFR 1.301-1.304, which authorizes 
agencies to issue acquisition regulations that implement or supplement 
the FAR.
    We propose to revise 824.102, General, to add the title of the 
sections of 38 CFR chapter 1 (1.575 through 1.584), that addresses VA's 
implementation of the Privacy Act of 1974 (Safeguarding Personal 
Information in Department of Veterans Affairs Records).
    We propose to add 824.103, Procedures, to implement the procedures 
in FAR 24.103, by citing specific VA Handbooks in solicitations and 
contracts that require the design, development, or operation of a 
system of records; and by requiring the contracting officer to include 
in Statements of Work and Performance Work Statements procedures to 
follow in the event of a PII breach. This section also calls for 
Government surveillance plans for contracts that require the design, 
development, or operation of a system of records to include monitoring 
of the contractor's adherence to the Privacy Act and PII regulations.
    We propose to revise 824.203, Policy, to designate the first 
sentence as paragraph (a), to update the CFR reference for rules 
implementing the Freedom of Information Act (FOIA), and to add 
paragraph (b) to advise the public that the VA FOIA Service Office 
handles all FOIA requests, and to provide the centralized website and a 
link to the list of FOIA contacts where FOIA requests can be submitted 
electronically.

Part 826--Other Socioeconomic Programs

    We propose to add part 826, Other Socioeconomic Programs, with a 
single subpart 826.2, Disaster or Emergency Assistance Activities. The 
authorities cited for this part are 38 U.S.C. 8127-8128, under which 
the Secretary may establish goals for awarding to Service-Disabled 
Veteran-Small Businesses and Veteran-Owned Small-Businesses; 40 U.S.C. 
121(c), which grants the authority for the head of each executive 
agency to issue orders and directives that the agency head considers 
necessary to carry out the regulations; 41 U.S.C. 1702, which addresses 
the acquisition planning and management responsibilities of Chief 
Acquisition Officers and Senior Procurement Executives, to include 
implementation of unique procurement policies, regulations and 
standards of the executive agency; 38 CFR 1.550-1.562, and 1.575-1.584, 
which contain the rules followed by VA in processing requests for 
records under the Freedom of Information Act; and 48 CFR 1.301-1.304, 
which authorizes agencies to issue acquisition regulations that 
implement or supplement the FAR.
    We propose to add 826.202-1, Local area set-aside, to require the 
contracting officer to determine whether a local area set-aside should 
be further restricted to verified Service-Disabled Veteran-Owned Small 
Businesses (SDVOSB) or Veteran-Owned Small Businesses (VOSB), because, 
while the FAR allows further restriction to socioeconomic programs in 
FAR part 19, it does not mention the VA specific requirements under 38 
U.S.C. 8127 and 8128.
    We propose to add 826.202-2, Evaluation preference, which would 
require that, to the extent market research does not support an SDVOSB 
or VOSB set-aside, the contracting officer shall consider including 
evaluation factors in accordance with 815.304, and the evaluation 
criteria clause 852.215-70, Service-Disabled Veteran-Owned and Veteran-
Owned Small Business Evaluation Factors, prescribed at 815.304-71(a).

VAAR Part 836--Construction and Architect-Engineer Contracts

    We propose to remove 836.578, Changes--supplement, which prescribes 
clause 852.236-88, Contract changes--supplement. This clause has been 
revised, retitled and renumbered as 852.243-70, Construction Contract 
Changes--Supplement, and its prescription has been moved to 843.205-70.

Part 843--Contract Modifications

    We propose to add part 843, Contract Modifications, with a single 
subpart 843.2, Change Orders. The authorities cited for this part are 
40 U.S.C. 121(c), which grants the authority for the head of each 
executive agency to issue orders and directives that the agency head 
considers necessary to carry out the regulations; 41 U.S.C. 1121(c)(3), 
which grants the authority of an executive agency under another law to 
prescribe policies, regulations, procedures, and forms for procurement; 
41 U.S.C. 1702, which addresses the acquisition planning and management 
responsibilities of Chief Acquisition Officers and Senior Procurement 
Executives, to include implementation of unique procurement policies, 
regulations and standards of the executive agency; and 48 CFR 1.301-
1.304, which authorizes agencies to issue acquisition regulations that 
implement or supplement the FAR.
    We propose to add 843.204-70, Definitization of unpriced change 
orders, to provide policy on price ceilings, definitization schedules, 
submission of a definitization proposal, required file documentation, 
limitations on obligations before definitization, and determining 
allowable profit depending on costs incurred during contract 
performance before negotiation of the final price.
    We propose to add 843.205, Contract clauses, which would provide 
contracting officers with guidance for establishing the number of days 
(up to 60 days), the contractor may be granted to assert its right to 
an equitable adjustment within the Changes clause. This section would 
also provide direction to use clause 52.216-24, Limitation of 
Government Liability, in unpriced change orders estimated to exceed $5 
million.
    We propose to add 843.205-70, Contract changes--supplement, which 
prescribes the use of the clause 852.243-70, Construction Contract 
Changes--Supplement, (formerly numbered 852.236-88), which has been 
revised and proposed to be moved to this part from VAAR 836.578.

VAAR Part 852--Solicitation Provisions and Contract Clauses

    In subpart 852.2, Text of Provisions and Clauses, we propose to add 
provision 852.223-70, Instructions to Offerors--Sustainable Acquisition 
Plan, for use when the contracting officer decides to include an 
evaluation factor for an offeror's Sustainable Action Plan when 
acquiring sustainable products and services in accordance with 823.103-
72, Solicitation provision.
    We propose to add clause 852.223-71, Safety and Health, which cites 
several references requiring contractors to comply with all Federal, 
State, and local laws and regulations applicable to the work being 
performed in accordance with 823.303-70, Contract clause.
    We propose to amend clause 852.236-88, Contract Changes--
Supplement, by renumbering it as 852.243-70, and retitling it as 
Construction Contract Changes--Supplement. It would clarify the basis 
for allowing overhead and profit under change orders on construction 
contracts, add definitization schedule requirements, and reinforce the 
need for the contractor's timely response with a proposal to definitize 
the change order. This clause is prescribed in 843.205-70, Contract 
changes--supplement.

Effect of Rulemaking

    Title 48, Federal Acquisition Regulations System, chapter 8, 
Department of Veterans Affairs, of the Code of Federal Regulations, as

[[Page 61368]]

proposed to be revised by this rulemaking, would represent VA's 
implementation of its legal authority and publication of the VAAR for 
the cited applicable parts. Other than future amendments to this rule 
or governing statutes for the cited applicable parts, or as otherwise 
authorized by approved deviations or waivers in accordance with FAR 
subpart 1.4, Deviations from the FAR, and as implemented by VAAR 
subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or 
procedures 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 Orders 12866, 13563 and 13771

    Executive Orders (E.O.s) 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 not expected to be an E.O. 13771 regulatory action because this 
proposed rule is not significant under E.O. 12866.

Paperwork Reduction Act

    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 Office of Management and Budget (OMB) control number. 
See also 5 CFR 1320.8(b)(3)(vi).
    The proposed actions in this rule result in the proposed 
redesignation of the existing approved OMB collection number and the 
associated burden as a result of one clause we propose to both retitle 
and renumber.
    This proposed rule would impose the following amended information 
collection requirement to one of the existing information collection 
approval numbers associated with this proposed rule. Although this 
action contains provisions constituting collections of information at 
48 CFR at 48 CFR 836.578 and 852.236-88, under the provisions of the 
Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed 
collections of information are associated with this clause. The 
information collection requirements for 852.236-88, which is currently 
prescribed by 836.578, is currently approved by OMB and has been 
assigned OMB control number 2900-0422. This information collection will 
be submitted to OMB to revise the title, redesignate the collection and 
renumber the one clause currently numbered as section 852.236-88, 
Contract Changes--Supplement. Accordingly, if approved, the clause 
would reflect the new designation and revised title as set forth in the 
preamble and the amendatory language of this proposed rule to read: 
852.243-70, Construction Contract Changes--Supplement, as prescribed by 
843.205-70, Contract changes--supplement, under the associated OMB 
control number 2900-0422. The reference to the old number--852.236-88, 
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 will submit these information collection amendments to OMB for its 
review. Notice of OMB approval for this information collection will be 
published in a future notice from the Office of Information and 
Regulatory Affairs at Reginfo.gov.

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. This proposed rule would 
generally be small business neutral. 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 estimates no cost impact to individual 
business would result from these rule updates. On this basis, 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. 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 will 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 823

    Air pollution control, Drug abuse, Energy conservation, Government 
procurement, Hazardous substances, Recycling, Water pollution control.

48 CFR Part 824

    Freedom of information, Government procurement, Privacy.

[[Page 61369]]

48 CFR Part 826

    Disaster assistance, Government procurement, Indians.

48 CFR Part 836

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 843

    Government procurement.

48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

Signing Authority

    The Secretary of Veterans Affairs 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. Robert L. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on November 15, 2018, for publication.

    Dated: November 20, 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 is proposing to amend 
48 CFR parts 801, 824, 836 and 852 and adding parts 823, 826, and 843 
as follows:

PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION 
SYSTEM

0
1. The authority citation for part 801 continues 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.

0
2. In section 801.106, table columns titled ``48 CFR part or section 
where identified and described'' and ``Current OMB Control Number,'' 
are amended to renumber the reference to section 852.836-88 to read 
852.243-70 against the corresponding OMB Control Number 2900-0422.
0
3. Part 823 is added to read as follows:

PART 823--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE 
ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE

Sec.
Subpart 823.1--Sustainable Acquisition Policy
823.103-70 Policy.
823.103-71 Solicitation provision.
823.103-72 Contract file.
Subpart 823.3--Hazardous Material Identification and Material Safety 
Data
823.300 Scope of subpart.
823.303-70 Contract clause.

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

Subpart 823.103--Sustainable Acquisition Policy


823.103-70   Policy.

    (a) For new contracts and orders above the micro-purchase 
threshold, VA contracting officers may insert a solicitation provision 
to include an evaluation factor for an offeror's Sustainable 
Acquisition Plan when acquiring sustainable products and services. Such 
contracts and orders include, but are not limited to: Office supplies; 
construction, renovation or repair; building operations and 
maintenance; landscaping services; pest management; electronic 
equipment, including leasing; fleet maintenance; janitorial services; 
laundry services; cafeteria operations; and meetings and conference 
services.
    (b) When required in the solicitation, offerors shall include a 
Sustainable Acquisition Plan in their technical proposal addressing the 
sustainable products and services for delivery under the resulting 
contract.


823.103-71   Solicitation provision.

    When the contracting officer requires a Sustainable Acquisition 
Plan in accordance with 823.103-70, Policy, the contracting officer 
shall insert the provision at 852.823-70, Instruction to Offerors--
Sustainable Acquisition Plan, in solicitations above the micro-purchase 
threshold.


823.103-72   Contract file.

    When one is required, the contracting officer shall place the 
contractor's final Sustainable Acquisition Plan into the contract file 
(Electronic Contract Management System (eCMS)).

Subpart 823.3--Hazardous Material Identification and Material 
Safety Data


823.300   Scope of subpart.

    This subpart provides a contract clause for use in administering 
safety and health requirements.


823.303-70   Contract clause.

    Contracting officers shall insert clause 852.223-71, Safety and 
Health, in solicitations and contracts that involve hazardous materials 
or hazardous operations for the following types of requirements:
    (1) Research, development, or test projects.
    (2) Transportation of hazardous materials.
    (3) Construction.

PART 824--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

0
4. The authority citation for part 824 is revised to read as follows:

    Authority:  5 U.S.C. 552a; 40 U.S.C. 121(c); 41 U.S.C. 1121(c); 
41 U.S.C. 1702; 38 CFR 1.550-1.562 and 1.575-1.584; and 48 CFR 
1.301-1.304.

0
5. Section 824.102 is revised to read as follows:


824.102   General.

    VA rules implementing the Privacy Act of 1974 are in 38 CFR 1.575 
through 1.584, Safeguarding Personal Information in Department of 
Veterans Affairs Records.
0
6. Section 824.103 is added to read as follows:


824.103   Procedures.

    (c) The contracting officer shall reference the following documents 
in solicitations and contracts that require the design, development, or 
operation of a system of records--
    (1) VA Handbook 6500.6, Contract Security;
    (2) VA Handbook 6508.1, Procedures for Privacy Threshold Analysis 
and Privacy Impact Assessment;
    (3) VA Handbook 6510, VA Identity and Access Management--
    (i) The contracting officer will ensure that statements of work or 
performance work statements that require the design, development, or 
operation of a system of records include procedures to follow in the 
event of a PII breach; and
    (ii) The contracting officer shall ensure that Government 
surveillance plans for contracts that require the design, development, 
or operation of a system of records include monitoring of the 
contractor's adherence to Privacy Act/PII regulations. The assessing 
official should document contractor-caused breaches or other incidents 
related to PII in past performance reports. Such incidents include 
instances in which the contractor did not adhere to Privacy Act/PII 
contractual requirements.

Subpart 824.2--Freedom of Information Act

0
7. Section 824.203 is revised to read as follows:


824.203   Policy.

    (a) VA rules implementing the Freedom of Information Act are in 38 
CFR 1.550 through 1.562.

[[Page 61370]]

    (b) Upon receipt of a request, the contracting officer shall 
provide the requester with the name of the cognizant VA Freedom of 
Information Act (FOIA) Service Office. The VA FOIA Service Office (see 
http://www.oprm.va.gov/foia/default.aspx) is the focal point for all 
FOIA requests and official information may only be released through the 
cognizant FOIA Service or their authorized designee. FOIA requests may 
be submitted electronically, see the VA FOIA website at http://www.oprm.va.gov/foia/foia_contacts.aspx.
0
8. Part 826 is added to read as follows:

PART 826--OTHER SOCIOECONOMIC PROGRAMS

Sec.
Subpart 826.2--Disaster or Emergency Assistance Activities
826.202-1 Local area set-aside.
826.202-2 Evaluation preference.

    Authority: 38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C. 
1702; 38 CFR 1.550-1.562 and 1.575-1.584; and 48 CFR 1.301-1.304.

Subpart 826.2--Disaster or Emergency Assistance Activities


826.202-1   Local area set-aside.

    (c) The contracting officer shall determine whether a local area 
set-aside should be further restricted to verified Service-Disabled 
Veteran-Owned Small Businesses (SDVOSBs) or Veteran-Owned Small 
Businesses (VOSBs) pursuant to subpart 819.70.


826.202-2   Evaluation preference.

    Pursuant to 38 U.S.C. 8128 and if market research does not support 
an SDVOSB or VOSB set-aside, the contracting officer shall consider 
including evaluation factors in accordance with 815.304 and the 
evaluation criteria clause prescribed at 815.304-71(a), 852.215-70, 
Service-Disabled Veteran-Owned and Veteran-Owned Small Business 
Evaluation Factors.

PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

0
9. The authority citation for part 836 continues to read as follows:

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


836.578  [Removed]

0
10. Section 836.578 is removed.
0
11. Part 843 is added to read as follows:

PART 843--CONTRACT MODIFICATIONS

Sec.
Subpart 843.2--Change Orders
843.204-70 Definitization of unpriced change orders.
843.205 Contract clauses.
843.205-70 Contract changes--supplement.

    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 843.2--Change Orders


843.204-70   Definitization of unpriced change orders.

    (a) Scope. This subsection applies to unpriced change orders with 
an estimated value exceeding $5 million unless the cognizant HCA 
establishes a lower level.
    (b) Price ceiling. Unpriced change orders shall include a not-to-
exceed cost or price.
    (c) Definitization schedule. Unpriced change orders shall contain 
definitization schedules that provide for definitization by the earlier 
of--
    (1) The date that is 180 days after issuance of the change order 
(this date may be extended but may not exceed the date that is 180 days 
after the contractor submits a definitization proposal); or
    (2) The date on which the amount of funds obligated under the 
change order is equal to more than 50 percent of the not-to-exceed 
price.
    (d) Definitization proposal. Submission of a definitization 
proposal in accordance with the definitization schedule is a material 
element of the contract. If the contractor does not submit a timely 
definitization proposal, the contacting officer may suspend or reduce 
payments in accordance with the contract payment clause or take other 
appropriate action.
    (e) File documentation for definitization delays. Contracting 
officers must document the contract file with the justification for any 
delay and revised definitization milestone schedule.
    (f) Limitations on obligations.
    (1) The Government shall not obligate more than 50 percent of the 
not-to-exceed price before definitization. However, if a contractor 
submits a definitization proposal before 50 percent of the not-to-
exceed price has been obligated by the Government, the limitation on 
obligations before definitization may be increased to no more than 75 
percent of the not-to-exceed cost or price.
    (2) Obligations should be consistent with the contractor's 
authorized and scheduled work performed during the undefinitized 
period.
    (g) Allowable profit.
    (1) When the final cost or price of an unpriced change order is 
negotiated after a substantial portion of the required performance has 
been completed, the head of the contracting activity shall ensure the 
fee or profit allowed reflects--
    (i) Any reduced cost risk to the contractor for costs incurred 
during contract performance before negotiation of the final cost or 
price; and
    (ii) The contractor's reduced cost risk for costs incurred during 
performance of the remainder of the contract; and
    (iii) The extent to which costs have been incurred prior to 
definitization of the contract action.
    (2) If a substantial portion of the costs have been incurred prior 
to definitization, the contracting officer may assign a value as low as 
zero (0) percent, regardless of contract type. The risk assessment 
shall be documented in the contract file.


843.205   Contract clauses.

    As authorized in the introductory text of clauses FAR 52.243-1, 
Changes--Fixed-Price; FAR 52.243-2, Changes--Cost-Reimbursement; and 
FAR 52.243-4, Changes, and in the prescription at FAR 43.205(c) for FAR 
52.243-3, Changes--Time-and-Materials or Labor-Hours, the contracting 
officer may vary the period within which a contractor must assert its 
right to an equitable adjustment but the extended period shall not 
exceed 60 calendar days.


843.205-70   Contract changes--supplement.

    The contracting officer shall insert the clause at 852.243-70, 
Construction Contract Changes--Supplement, in solicitations and 
contracts for construction that are expected to exceed the micro-
purchase threshold for construction.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
12. 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. 1303; 41 U.S.C. 1702; and 48 CFR 
1.301-1.304.

0
13. Section 852.223-70 is added to read as follows:


852.223-70   Instructions to offerors--Sustainable Acquisition Plan.

    As prescribed in 823.103-71, when the Contracting Officer deems a 
Sustainable Acquisition Plan necessary, the Contracting Officer shall 
insert the following provision:

[[Page 61371]]

Instructions to Offerors--Sustainable Acquisition Plan (Date)

    Offerors shall include a Sustainable Acquisition Plan in their 
technical proposals. The plan must describe the approach and quality 
assurance mechanisms for applying FAR subpart 23.1, Sustainable 
Acquisition Policy and other Federal laws, regulations and Executive 
Orders governing sustainable acquisition. The plan shall clearly 
identify those products and services included in the proposal.

(End of provision)
0
14. Section 852.223-71 is added to read as follows:


852.223-71   Safety and Health.

    As prescribed by 823.303-70, the Contracting Officer shall insert 
the following clause:

Safety and Health (Date)

    (a) To help ensure the protection of the life and health of all 
persons, and to help prevent damage to property, the Contractor 
shall comply with all Federal, State, and local laws and regulations 
applicable to the work being performed under this contract. These 
laws are implemented or enforced by the Environmental Protection 
Agency (EPA), Occupational Safety and Health Administration (OSHA) 
and other regulatory/enforcement agencies at the Federal, State, and 
local levels.
    (1) Additionally, the Contractor shall comply with the following 
regulations when developing and implementing health and safety 
operating procedures and practices for both personnel and facilities 
involving the use or handling of hazardous materials and the conduct 
of research, development, or test projects:
    (i) 29 CFR 1910.1030, Bloodborne pathogens; 29 CFR 1910.1450, 
Occupational exposure to hazardous chemicals in laboratories. These 
regulations are available at https://www.osha.gov/.
    (ii) Nuclear Regulatory Commission Standards and Regulations, 
pursuant to the Energy Reorganization Act of 1974 (42 U.S.C. 5801 et 
seq.) Copies are available from the U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001.
    (2) The following Government guidelines are recommended for 
developing and implementing health and safety operating procedures 
and practices for both personnel and facilities:
    (i) Biosafety in Microbiological and Biomedical Laboratories, 
Centers for Disease Control and Prevention (CDC), available at 
http://www.cdc.gov/biosafety/publications/index.htm.
    (ii) Prudent Practices in the Laboratory, National Research 
Council, National Academy Press, Washington, DC 20001, available at 
http://www.nap.edu.
    (b)(1) The Contractor shall maintain an accurate record of, and 
promptly report to the Contracting Officer, all accidents or 
incidents resulting in the exposure of persons to toxic substances, 
hazardous materials or hazardous operations; the injury or death of 
any person; or damage to property incidental to work performed under 
the contract resulting from toxic or hazardous materials and 
resulting in any or all violations for which the Contractor has been 
cited by any Federal, State or local regulatory/enforcement agency.
    (2) The report shall include a copy of the notice of violation 
and the findings of any inquiry or inspection, and an analysis 
addressing the impact these violations may have on the work 
remaining to be performed. The report shall also state the required 
action(s), if any, to be taken to correct any violation(s) noted by 
the Federal, State, or local regulatory/enforcement agency and the 
time frame allowed by the agency to accomplish the necessary 
corrective action.
    (c) If the Contractor fails or refuses to comply with the 
Federal, State or local regulatory/enforcement agency's directive(s) 
regarding any violation(s) and prescribed corrective action(s), the 
Contracting Officer may issue an order stopping all or part of the 
work until satisfactory corrective action (as approved by the 
Federal, State, or local regulatory/enforcement agencies) has been 
taken and documented to the Contracting Officer. No part of the time 
lost due to any such stop work order shall form the basis for a 
request for extension or costs or damages by the Contractor.
    (d) The Contractor shall insert this clause in each subcontract 
involving toxic substances, hazardous materials, or hazardous 
operations. The Contractor is responsible for the compliance of its 
subcontractors with the provisions of this clause.


(End of clause)


852.236-88  [Removed]

0
15. Section 852.236-88 is removed.
0
16. Section 852.243-70 is added to read as follows:


852.243-70   Construction Contract Changes--Supplement.

    As prescribed in 843.205-70, the Contracting Officer shall insert 
this clause in solicitations and contracts for construction that are 
expected to exceed the micro-purchase threshold. The Contracting 
Officer shall fill in the number of days in which a Contractor must 
assert its right to an equitable adjustment; however, such amount shall 
not exceed 60 calendar days.

Construction Contract Changes--Supplement (Date)

    The FAR clauses 52.243-4, Changes; 52.243-5, Changes and Changed 
Conditions; and 52.236-2, Differing Site Conditions, are 
supplemented as follows:
    (a) Submission of request for equitable adjustment proposals. 
When directed by the Contracting Officer or requested by the 
Contractor, the Contractor shall, in accordance with FAR 15.403-5, 
submit proposals for changes in the work exceeding $500,000 in 
writing to the Contracting Officer or Administrative Contracting 
Officer (ACO), and to the resident engineer.
    (1) The Contractor must provide an itemized breakdown for 
changes exceeding the micro-purchase threshold (see FAR 2.101).
    (2) The itemized breakdown shall include materials, quantities, 
unit prices, labor costs (separated into trades), construction 
equipment, etc. Labor costs shall be identified with specific 
material placed or operation performed.
    (3) Proposals shall be submitted to the Contracting Officer or 
ACO and the resident engineer as expeditiously as possible, but not 
later than [fill-in] __calendar days, after receipt of a written 
change order by the Contracting Officer.
    (4) Proposals shall be signed by each subcontractor 
participating in the change.
    (5) The Contracting Officer will consider issuing a settlement 
by determination to the contract if the Contractor's proposal 
required by paragraph (3) is not received within 30 calendar days, 
or if agreement has not been reached.
    (b) Paragraphs (a)(1) through (5) and the following apply to 
proposed contract changes costing $500,000 or less:
    (1) As a basis for negotiation, allowances not to exceed 10 
percent each for overhead and profit for the party performing the 
work will be based on the value of labor, material, and equipment 
required to accomplish the change. As the value of the change 
increases, a declining scale will be used in negotiating the 
percentage of overhead and profit. This declining scale will also be 
used to negotiate the prime Contractor's or upper-tier 
subcontractor's fee when work is performed by lower-tier 
subcontractors (to a maximum of three tiers) and will be based on 
the net increased cost to the prime or upper-tier subcontractor, as 
applicable. Profit (fee) shall be computed by multiplying the profit 
percentage by the sum of the direct costs and computed overhead 
costs. Allowable percentages on changes will not exceed the 
following:
    (i) 10 percent overhead and/or 10 percent profit (fee) on the 
first $20,000.
    (ii) 7.5 percent overhead and/or 7.5 percent profit (fee) on the 
next $30,000.
    (iii) 5 percent overhead and/or 5 percent profit (fee) on a 
balance over $50,000.
    (2) The Contracting Officer will consider issuing a settlement 
by determination to the contract if the Contractor's proposal 
required by paragraph (3) is not received within 30 calendar days, 
or if agreement has not been reached.
    (c)(1) Overhead and Contractor's fee percentages shall be 
considered to include insurance other than mentioned herein, field 
and office supervisors and assistants, security police, use of small 
tools, incidental job burdens, and general home office expenses and 
no separate allowance will be made. Assistants to office supervisors 
include all clerical, stenographic and general office help. 
Incidental job burdens include, but are not necessarily limited to, 
office equipment and supplies, temporary toilets, telephone and 
conformance to OSHA requirements. Items such as, but not necessarily 
limited to, review and coordination, estimating and expediting 
relative to contract changes are associated with field and office 
supervision and are considered to be included in the Contractor's 
overhead and/or fee percentage.

[[Page 61372]]

    (2) Where the Contractor's or subcontractor's portion of a 
change involves credit items, such items must be deducted prior to 
adding overhead and profit for the party performing the work. The 
Contractor's fee is limited to the net increase to Contractor or 
subcontractors' portions of cost computed in accordance with this 
clause.
    (3) Where a change involves credit items only, a proper measure 
of the amount of downward adjustment in the contract price is the 
reasonable cost to the Contractor if it had performed the deleted 
work. A reasonable allowance for overhead and profit are properly 
includable as part of the downward adjustment for a deductive 
change. The amount of such allowance is subject to negotiation.


(End of clause)

[FR Doc. 2018-25618 Filed 11-28-18; 8:45 am]
 BILLING CODE 8320-01-P