[Federal Register Volume 84, Number 22 (Friday, February 1, 2019)]
[Proposed Rules]
[Pages 1041-1046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-28206]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Part 806
RIN 2900-AQ21
VA Acquisition Regulation: Competition Requirements
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revise or remove any policy superseded by changes in Federal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outdated and duplicative requirements and reduce burden on contractors.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, will publish them
in the Federal Register. VA will combine related topics, as
appropriate. In particular, this rulemaking revises the VAAR concerning
Competition Requirements.
DATES: Comments must be received on or before April 2, 2019 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. (This is not a toll-free number.) Comments should indicate
that they are submitted in response to ``RIN 2900-AQ21 VA Acquisition
Regulation: Competition Requirements.'' 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 (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 consistent with the 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
[[Page 1042]]
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 authority that are removed from the VAAR will
be included in VA Acquisition Manual (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. Therefore, the VAAM will not be
finalized until corresponding VAAR parts are finalized, and the VAAM is
not yet available on line.
VAAR Part 806--Competition Requirements
This proposed rule would revise the authority citations pertaining
to part 806 to include a reference to 41 U.S.C. 1121(c)(3), which is
from Title 41, Public Contracts, and speaks to the authority of an
executive agency under another law to prescribe policies, regulations,
procedures, and forms for procurement that are subject to the authority
conferred in the cited section, as well as other sections of Title 41
as shown therein.
We also propose to revise the part 806 authorities to add 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, and 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.
We also propose to include a reference to 41 U.S.C. 3304 as the
basic authority to award contracts by other than full and open
competition. Any other proposed changes to authorities or additional
authorities are shown under the individual sections as described in the
preamble and reflected in the amendatory language. We also propose to
remove 38 U.S.C. 501 as it is a more general authority for the
Secretary to utilize to prescribe all rules and regulations. The title
41 authority is more appropriate to cite when publishing the VAAR.
We propose to add 806.004-70, Definition, to establish that as used
in part 806, ``health-care resource(s)'' has the same definition as
that provided in VAAR 873.102. VAAR 873.102 provides that ``health-care
resource'' includes hospital care and medical services (as those terms
are defined in section 1701 of title 38 United States Code (U.S.C.)),
any other health-care service, and any health-care support or
administrative resource, including the use of medical equipment or
space. (38 U.S.C. 8153). A future rule may contain revisions to VAAR
part 873 which also might include any updated definition for ``health-
care resource.''
We propose to add subpart 806.1--Full and Open Competition, and
section 806.102, Use of competitive procedures, to address the
application of 38 U.S.C. 8127 to competitive General Services
Administration (GSA) and VA Federal Supply Schedules.
We propose to add subpart 806.2--Full and Open Competition After
Exclusion of Sources, which would contain two sections: 806.203, Set-
asides for small business concerns, which directs attention to subparts
819.5 and 819.70 for VA's policies on set-asides for small business
concerns, and 806.270, Set-asides for verified Veteran-owned small
businesses.
In 806.270, we propose to set-forth VA's authority under VA's
supplement to FAR part 6--VAAR part 806, and the requirement mandated
by 38 U.S.C. 8127, to conduct set-asides for Veteran-owned small
businesses whenever market research provides the contracting officer
with a reasonable expectation of receiving two or more offers/quotes
from eligible and verified service-disabled veteran-owned small
businesses (SDVOSBs) or veteran-owned small businesses (VOSBs), and
award can be made at a fair and reasonable price that offers best value
to the Government (VA Rule of Two). This section would also state that
the requirement to set aside procurements for Veteran-owned small
businesses applies to all contracts under this regulation, including
orders under interagency acquisition vehicles such as the Federal
Supply Schedules (FSS), Governmentwide acquisition contracts (GWACs),
and multi-agency contracts. We propose to also include language in
paragraph (c) that contracting officers shall utilize the authority in
paragraph (a), for set-asides to verified SDVOSBs and VOSBs, over other
set-asides authorized in FAR subpart 6.2. The reason is the statutory
requirement in 38 U.S.C. 8127-8128 for the VA Rule of Two which
provides VA a unique authority for set-asides that includes both
categories of Veteran-owned small businesses. While FAR 6.206, Set-
asides for service-disabled veteran-owned small business concerns, does
provide for an SDVOSB set-aside, SDVOSBs who may receive contract
awards under that authority self-represent their status, whereas
eligibility for and participation in the VA SDVOSB set-aside program
requires verification and inclusion in the VA, Office of Small and
Disadvantaged Business Utilization (OSDBU), Center for Verification and
Evaluation, Vendor Information Pages (VIP). Additionally, the FAR does
not have a specific set-aside program for VOSBs, while VA does, which
also requires that in order to be eligible for and to participate in
the program, VOSBs must also go through a thorough verification program
and be included in VA OSBDU's VIP. This section also proposes to
include language that would provide that for Indefinite-Delivery
contracts, when a set-aside is restricted to verified SDVOSBs or VOSBs,
it satisfies competition requirements.
In subpart 806.3--Other Than Full and Open Competition, we propose
to revise the entire subpart to add specific reference to VA's
authority for noncompetitive procedures for verified Veteran-owned
small businesses and to clarify existing authorities regarding such
noncompetitive procedures. The revised subpart would also clarify
existing statutory authority for other VA unique authorities and update
new Title 41 citations and require other specific citation
requirements.
We propose to amend section 806.302, Circumstances permitting other
than full and open competition, to add several sections. We propose to
revise 806.302-5, Authorized or required by statute, to remove its text
and retain the title. The removed text has been revised and moved to
806.302-571.
Under 806.302-5, we propose to add two sections: 806.302-570 and
806.302-571. We propose to add 806.302-570, Noncompetitive procedures
for verified Veteran-owned small businesses, to provide coverage of the
authority to enter into contracts non-competitively, when specifically
authorized under the VA Veterans First Contracting Program in
accordance with VAAR 819.7007 or 819.7008. Paragraph (a) provides that
justification and approval requirements
[[Page 1043]]
of FAR 6.303 and 6.304, and internal agency review and approval
thresholds set forth in VA internal procedures apply. Paragraph (b)
provides the required updated 41 U.S.C. 3304(a)(5) citation, the
specific authority under 38 U.S.C. 8127(b), and states that contracting
officers may award a contract to a VIP verified SDVOSB first, then
VOSB, using other than full and open competition, for contracts at or
below the Simplified Acquisition Threshold (SAT). Paragraph (c)
provides the proposed noncompetitive procedures for contracts above the
SAT, as well as specific limitations that apply for actions over the
SAT: the proposed SDVOSB or VOSB business must be responsible; the
anticipated award price of the contract, including options, will exceed
the SAT, but will not exceed $5 million; and, contract award can be
made at a fair and reasonable price that offers best value to the
United States.
We also propose to add 806.302-571, Authorized or required by
statute--VA unique authorities, which would contain the statutes
previously listed in 806.302-5 and provide policy under the statutes to
make awards by other than full and open competition. Paragraph (a)
provides the updated Title 41 authority--41 U.S.C. 3304(a)(5), updated
from the moved coverage under 806.302-5. Paragraph (b)(1) would provide
that full and open competition is not required for the acquisition of
prosthetic appliances and services based on the authority under 38
U.S.C. 8123. Paragraph (b)(2) would provide the existing policy for the
acquisition of commercial health-care resources, use of medical
equipment or space, or research acquired from an institution affiliated
with VA under the authority set forth in 38 U.S.C. 8153(a)(3)(A).
Paragraph (b)(3) would provide policy for the acquisition of commercial
health-care resources, use of medical equipment or space from other
than an affiliated institution, but only when conducted in accordance
with simplified procedures in VAAR part 873, Simplified Acquisition
Procedures for Health-Care Resources, under the authority set forth in
38 U.S.C. 8153(a)(3)(B). Paragraph (b)(4) would provide the authority
under 38 U.S.C. 8153(a)(3)(C) for the sole source acquisition of
commercial health-care resources, the use of medical equipment or
space, when not acquired from an affiliated institution in accordance
with paragraph (b)(2). The justification and approval requirements of
FAR 6.303 and agency internal review procedures apply.
806.302-571, paragraph (c), would require that contracts awarded
using the authority set forth under paragraph (a), with the exception
of acquisitions authorized under paragraph (b)(2) of this section,
shall be supported by the written justifications and approvals
described in FAR 6.303 and 6.304, and VA internal agency procedures.
806.302-571, paragraph (d), would incorporate an updated Title 41
citation reference: 41 U.S.C. 3304(a)(5), and would also permit VA to
procure certain supplies and services and require contracting officers,
pursuant to FAR 6.302-5(c)(2)(ii), to comply with written justification
and approval requirements set forth in FAR 6.303 and 6.304, citing 41
U.S.C. 3304(a)(5) and the applicable statute. Specifically, 806.302-
571(d) contains authorities previously under 806.302-5 and would
continue existing policy to allow VA to continue to enter into
contracts for the following:
Scarce medical specialist services through contracts with 1)
schools and colleges of medicine, osteopathy, dentistry, podiatry,
optometry, and nursing; 2) clinics; and 3) any other group or
individual capable of furnishing such scarce medical specialist
services at VA facilities, to include the services of physicians,
dentists, podiatrists, optometrists, chiropractors, nurses, physician
assistants, expanded-function dental auxiliaries, technicians, and
other medical support personnel, in accordance with the authority of 38
U.S.C. 7409. We also propose to remove language that was previously
codified that restricted such contracts to institutions affiliated with
VA under 38 U.S.C. 7302 as no such restriction is contained in the
statute for 38 U.S.C. 7409;
Purchase or sell merchandise, equipment, fixtures, supplies and
services for the operation of the Veterans Canteen Service under the
authority of 38 U.S.C. 7802(f);
Contracts or leases for the operation of parking facilities
authorized by the Secretary or designee under the authority of 38
U.S.C. 8109(f);
Contracts for laundry and other common services, such as the
purchase of steam, negotiated with non-profit, tax-exempt educational,
medical, or community institutions, under the authority of 38 U.S.C.
8122(c), when specifically approved by the Secretary or designee and
when such services are not reasonably available from private commercial
sources; and
Contracts or agreements with private or public agencies or persons,
including contracts for services of translators under the authority of
38 U.S.C. 513.
We propose to remove the authority currently listed in 806.302-
5(a)(1), concerning VA ability to procure scarce medical specialist
services, as an exception to full and open competition and place this
authority in 806.302-571(d)(1) to require a written justification and
approval before procuring services using the 38 U.S.C. 7409 authority.
While 38 U.S.C. 7409 states that VA may procure scarce medical
specialist services from certain persons and institutions identified in
the statute, the statute does not contain language which expressly
exempts these types of procurements from the competition requirements
found in 41 U.S.C. 3301 et. seq. We propose to require that the use of
this authority comply with written justification and approval
requirements set forth in FAR 6.303 and 6.304 and cite 41 U.S.C.
3304(a)(5) and 38 U.S.C. 7409.We propose to remove 806.302-7, Public
interest, 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 806.304, Approval of the justification, 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 revise subpart 806.5--Competition Advocates, to amend
the title to Advocates for Competition to conform to the revised title
in FAR part 6.
We propose to revise 806.501, Requirement, to identify the Deputy
Senior Procurement Executive as the VA Advocate for Competition.
We propose to remove 806.570, Planning requirements, 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.
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 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
[[Page 1044]]
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 a significant regulatory action under E.O.
12866, because it may create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency and raises
novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in this Executive
order.
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 subject to the
requirements of E.O. 13771 because this proposed rule is expected to
result in no more than de minimis costs.
Paperwork Reduction Act
This proposed rule contains no provisions constituting a collection
of information under the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3521).
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 that no cost impact to individual
business would result from these rule updates. On this basis, the
adoption of 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 would have no such
effect on State, local, and tribal Governments or on the private
sector.
List of Subjects in 48 CFR Part 806
Government procurement.
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 October 29, 2018, for publication.
Dated: December 21, 2018.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
0
For the reasons set out in the preamble, VA proposes to revise 48 CFR
part 806 to read as follows:
PART 806--COMPETITION REQUIREMENTS
Sec.
806.004-70 Definition.
Subpart 806.1--Full and Open Competition
806.102 Use of competitive procedures.
Subpart 806.2--Full and Open Competition After Exclusion of Sources
806.203 Set-asides for small business concerns.
806.270 Set-asides for verified Veteran-owned small businesses.
Subpart 806.3--Other Than Full and Open Competition
806.302 Circumstances permitting other than full and open
competition.
806.302-5 Authorized or required by statute.
806.302-570 Noncompetitive procedures for verified Veteran-owned
small businesses.
806.302-571 Authorized or required by statute--VA unique
authorities.
Subpart 806.5--Advocates for Competition
806.501 Requirement.
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C.
1303; 41 U.S.C. 1702; 41 U.S.C. 3304; and 48 CFR 1.301-1.304.
806.004-70 Definition.
As used in this part--
Health-care resources has the same definition as that provided in
VAAR 873.102.
Subpart 806.1--Full and Open Competition
806.102 Use of competitive procedures.
(d)(3) Awards made using General Services Administration (GSA) or
Department of Veterans Affairs (VA) Federal Supply Schedules (FSS) are
considered competitive when awarded in accordance with the procedures
specified in FAR part 8 and this part.
Subpart 806.2--Full and Open Competition After Exclusion of Sources
806.203 Set-asides for small business concerns.
(c) Subpart 819.5 and subpart 819.70 prescribe the policies and
procedures
[[Page 1045]]
that shall be followed with respect to set-asides for small business
and Veteran-owned small business concerns.
806.270 Set-asides for verified Veteran-owned small businesses.
(a) To fulfill the statutory requirements relating to Public Law
109-461, the Veterans Benefits, Health Care and Information Technology
Act of 2006 (38 U.S.C. 8127-8128), contracting officers shall set aside
solicitations in accordance with 819.70 and the VA Rule of Two (see
802.101) for Vendor Information Pages (VIP) verified service-disabled
Veteran-owned small businesses (SDVOSBs) and Veteran-owned small
businesses (VOSBs) (see 819.7005 and 819.7006). (38 U.S.C. 8127-8128)
(b) This requirement to set aside procurements for VIP verified
SDVOSBs and VOSBs applies to all types of contracts, including orders
placed under GSA's Federal Supply Schedules (FSS) and indefinite-
delivery contracts, including Governmentwide acquisition contracts
(GWACs). (38 U.S.C. 8127-8128)
Subpart 806.3--Other Than Full and Open Competition
806.302 Circumstances permitting other than full and open
competition.
806.302-5 Authorized or required by statute.
806.302-570 Noncompetitive procedures for verified Veteran-owned small
businesses.
(a) Full and open competition need not be provided for when
awarding a sole source contract under (b) or (c) of this section, to a
verified SDVOSB or VOSB in accordance with 819.7007 or 819.7008,
respectively, as authorized. Contracts awarded using this authority
shall be supported by justification and approval requirements of FAR
6.302-5(c)(2)(ii), 6.303 and 6.304.
(b) Sole source awards below the Simplified Acquisition Threshold.
(Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 8127(b)). A
contracting officer may award a contract under this authority to a VIP
verified SDVOSB first, then VOSB if no SDVOSBs can fulfill the need,
for an amount less than the simplified acquisition threshold, using
procedures other than full and open competition. (38 U.S.C. 8127)
(c) Sole source awards above the Simplified Acquisition Threshold.
(Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 8127(c)). A
contracting officer may award a contract to a VIP verified SDVOSB
first, then VOSB if no SDVOSB can satisfy the need, using procedures
other than full and open competition when--
(1) Such concern is determined to be a responsible source with
respect to performance of such contract opportunity;
(2) The anticipated award price of the contract (including options)
will exceed the simplified acquisition threshold, but will not exceed
$5 million; and
(3) Contract award can be made at a fair and reasonable price that
offers best value to the United States. (38 U.S.C. 8127)
806.302-571 Authorized or required by statute--VA unique authorities.
(a) Authority. (1) Citation: 41 U.S.C. 3304(a)(5). Contracting
officers shall also cite the specific authorities in paragraph (b)
below for the statutes related to the products and services procured.
(2) Full and open competition need not be provided for when--a
statute expressly authorizes or requires that the acquisition be made
through another agency or from a specified source.
(b) Application. The following products and services are authorized
to be acquired from a specified source:
(1) Prosthetic appliances and services. Contracting activities may
procure prosthetic appliances and necessary services required in the
fitting, supplying, and training and use of prosthetic appliances by
purchase, manufacture, contract, or in such other manner as determined
to be proper, without regard to any other provision of law as set forth
in VA directives governing prosthetic appliances, sensory aids and
services supporting the same. (38 U.S.C. 8123)
(2) Commercial health-care resources, the use of medical equipment
or space, or research, and acquired from an institution affiliated with
the Department of Veterans Affairs. Contracting activities may procure
health care resources, including medical practice groups and other
approved entities associated with affiliated institutions, blood banks,
organ banks, or research centers from an affiliated institution
affiliated with VA in accordance with 38 U.S.C. 7302. Medical practice
groups and other entities shall be approved when determined by the
contracting activity to be legally associated with affiliated
institutions. The justification and approval requirements of FAR 6.303
and paragraph (c) of this section do not apply. (38 U.S.C.
8153(a)(3)(A))
(3) Commercial health-care resources, the use of medical equipment
or space, and is not to be acquired from an entity described in (b)(2)
of this section. Contracting activities may procure health care
resources from a non-affiliated institution only if the procurement is
conducted in accordance with the simplified procedures prescribed in
part 873. The justification and approval requirements of FAR 6.303
shall apply. (38 U.S.C. 8153(a)(3)(B))
(4) Commercial health-care resources, the use of medical equipment
or space, when not acquired from an affiliated institution described in
(b)(2) of this section and to be conducted on a sole source basis. This
authority applies if not acquired from an affiliated institution in
accordance with part 873. The justification and approval requirements
of FAR 6.303 shall apply. (38 U.S.C. 8153(a)(3)(C))
(c) Contracts awarded using this authority, with the exception of
acquisitions authorized under paragraph (b)(2) of this section, shall
be supported by the written justifications and approvals described in
FAR 6.303 and 6.304.
(d) When a contracting officer enters into a contract without
providing full and open competition for any of the following items or
services, the contracting officer must cite 41 U.S.C. 3304(a)(5) and
the following authorities that apply, in the written justifications and
approvals as required by FAR 6.303 and 6.304:
(1) Contracts for scarce medical specialist services. (Citation: 41
U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 7409). Contracting
officers may enter into contracts with (1) schools and colleges of
medicine, osteopathy, dentistry, podiatry, optometry, and nursing; (2)
clinics; and (3) any other group or individual capable of furnishing
such scarce medical specialist services at VA facilities, to include
the services of physicians, dentists, podiatrists, optometrists,
chiropractors, nurses, physician assistants, expanded-function dental
auxiliaries, technicians, and other medical support personnel. (38
U.S.C. 7409)
(2) Contracts or agreements to purchase or sell merchandise,
equipment, fixtures, supplies and services for the operation of the
Veterans Canteen Service. (Citation: 41 U.S.C. 3304(a)(5), as
authorized by 38 U.S.C. 7802(f)). Contracts or agreements may be
entered into without regard to 41 U.S.C. 6101(b) through (d).
(3) Contracts or leases for the operation of parking facilities
established under authority of 38 U.S.C. 8109(b). (Citation: 41 U.S.C.
3304(a)(5), as authorized by 38 U.S.C. 8109(f)). Contracts or leases
may be entered into
[[Page 1046]]
provided that the establishment, operation, and maintenance of such
facilities have been authorized by the Secretary or designee.
(4) Contracts for laundry and other common services, such as the
purchase of steam, negotiated with non-profit, tax-exempt educational,
medical, or community institutions. (Citation: 41 U.S.C. 3304(a)(5), as
authorized by 38 U.S.C. 8122(c)). Contracts may be entered into when
specifically approved by the Secretary or designee and when such
services are not reasonably available from private commercial sources.
(5) Contracts or agreements with private or public agencies or
persons for translator services. (Citation: 41 U.S.C. 3304(a)(5), as
authorized by 38 U.S.C. 513).
Subpart 806.5--Advocates for Competition
806.501 Requirement.
The Deputy Senior Procurement Executive (DSPE) is designated as the
VA Advocate for Competition. The DSPE may further delegate this
authority to other VA officials. A complete list of VA procuring
activity Advocates for Competition can be found at https://www.va.gov/oal/business/pps/policy.asp.
[FR Doc. 2018-28206 Filed 1-31-19; 8:45 am]
BILLING CODE 8320-01-P