[Federal Register Volume 85, Number 126 (Tuesday, June 30, 2020)]
[Proposed Rules]
[Pages 39151-39154]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12906]


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DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 852 and 871

RIN 2900-AQ76


VA Acquisition Regulation: Loan Guaranty and Vocational 
Rehabilitation and Employment Programs

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revise or remove any policy superseded by changes in Federal 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 and move it to 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outdated and duplicative requirements and reduce burden on contractors.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. This rulemaking revises VAAR coverage concerning Loan 
Guaranty and Vocational Rehabilitation and Employment Programs, as well 
as an affected part concerning Solicitation Provisions and Contract 
Clauses.

DATES: Comments must be received on or before August 31, 2020.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Office of 
Regulation Policy and Management (00REG), Department of Veterans 
Affairs, 810 Vermont Avenue NW, Room 1064, 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-AQ76 
VA Acquisition Regulation: Loan Guaranty and Vocational Rehabilitation 
and Employment Programs.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1064, 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

[[Page 39152]]

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 
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. The VAAM will not be finalized 
until corresponding VAAR parts are finalized, and therefore the VAAM is 
not yet available online.

VAAR Part 852--Solicitation Provisions and Contract Clauses

    We propose to revise section 852.271-72, Time Spent by Counselee in 
Counseling Process, to capitalize all principal words in the title and 
the word ``Contractor'' in the text, to replace the word ``give'' with 
the phrase ``participate or engage in additional sessions or expend'' 
of provisions and clauses, and to place a comma after the word 
``information'' in the text.
    We propose to revise section 852.271-73, Use and Publication of 
Counseling Results, to capitalize all principal words in the title and 
the word ``Contractor'' in the text, and to place commas after the 
words ``contract'' and ``thereto'' in the text.
    We propose to revise the title and text of section 852.271-74, 
Inspection, to change the title to ``Inspection of Instruction, 
Counseling or Testing Operations,'' to capitalize all principal words 
in the title and the words ``Contractor'' and ``Veteran'' in the text, 
to add the word ``shall'' after the word ``Contractor'' and the word 
``to'' before the first word ``examine'' in the text, and to add the 
phrase ``along with any other rights to examine records and conduct 
inspections in accordance with the Federal Acquisition Regulation and 
clauses contained in the contract or order.''
    We propose to remove and reserve section 852.271-75, Extension of 
contract period, since it duplicates FAR procedural coverage.

VAAR Part 871-- Loan Guaranty and Vocational Rehabilitation and 
Employment Programs

    We propose to remove in its entirety and reserve subpart 871.1, 
Loan Guaranty and Direct Loan Programs, since subpart's rules are 
outdated. VA no longer contracts with numerous contractors on a case-
by-case basis for the repair and preservation of properties acquired 
under chapter 37, title 38, U.S.C. VA has awarded a national property 
management contract that is governed by other provisions of the FAR and 
VAAR. Because of this removal, we propose to revise the title of the 
part to Vocational Rehabilitation and Employment Programs.
    In section 871.200, Scope of subpart, we propose to delete the 
reference to Title 10 chapters as they do not apply to VA. We also 
proposed to remove the following sections since they are more related 
to matters of program management than acquisition, or they duplicate 
coverage in FAR: 871.201-2, Requirements when contracts are not 
required; 871.201-3, Medical services; 871.201-4, Letter contracts; 
871.202, Marking and release of supplies; 871.203, Renewals or 
supplements to contracts; and 871.204, Guaranteed payment. We propose 
to revise section 871.210 to retitle it as ``Prohibition on 
advertising--training of Veterans,'' and to remove all programmatic 
language, but to retain the text of the paragraph prohibiting use of 
the training facilities in any way to advertise the institution. We 
propose to remove section 871.211, Information concerning 
correspondence courses, in its entirety since it is also programmatic 
information not relevant to acquisition. With the removal of 871.211, 
we propose to renumber 871.212 to 871.211, and to update paragraph 
(a)(3) to revise the title of clause 852.271-74 to ``Inspection of 
Instruction, Counseling or Testing Operations.''

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, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). E.O. 13563 (Improving Regulation and Regulatory Review) 
emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. The 
Office of Information and Regulatory Affairs has determined that this 
rule is not a significant regulatory action under Executive Order 
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

    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

    The Secretary hereby certifies that 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 rulemaking does not change VA's policy regarding 
small businesses, does not

[[Page 39153]]

have an economic impact to individual businesses, and there are no 
increased or decreased costs to small business entities. On this basis, 
the proposed rule would not have an economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. Therefore, pursuant to 5 U.S.C. 
605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal Governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal Governments or on the private 
sector.

List of Subjects

48 CFR Parts 852

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 871

    Government procurement, Loan programs--social programs, Loan 
programs--veterans, Reporting and recordkeeping requirements, 
Vocational rehabilitation.

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. Pamela 
Powers, Chief of Staff, Department of Veterans Affairs, approved this 
document on February 20, 2020, for publication.

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 proposes to amend 48 
CFR to revise parts 852 and 871 to read as follows:

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
1. 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 through 1.304.

Subpart 852.2--Texts of Provisions and Clauses

0
2. Subpart 852.2 is revised to read as follows:
* * * * *


852.271-72  Time Spent by Counselee in Counseling Process.

    As prescribed in 871.211, insert the following clause:

Time Spent by Counselee in Counseling Process (Date)

    The Contractor agrees that no counselee referred under the 
provisions of this agreement will be required to participate or engage 
in additional sessions or expend any extra time in connection with the 
counseling process, to supply test results or other information, for 
purposes other than those specified in this contract.
(End of clause)


852.271-73  Use and Publication of Counseling Results.

    As prescribed in 871.211, insert the following clause:

Use and Publication of Counseling Results (Date)

    The Contractor agrees that none of the information or data gathered 
in connection with the services specified in this contract, or studies 
or materials based thereon or relating thereto, will be publicized 
without the prior approval of the Under Secretary for Benefits or his/
her designee.
(End of clause)


852.271-74  Inspection of Instruction, Counseling or Testing 
Operations.

    As prescribed in 871.211, insert the following clause:

Inspection of Instruction, Counseling or Testing Operations (Date)

    The Contractor shall permit the duly authorized representative of 
the Department of Veterans Affairs to visit the place of instruction or 
the counseling and testing operations as may be necessary and to 
examine the training facilities, the work of the Veterans in training 
under this contract, and the records of these operations, along with 
any other rights to examine records and conduct inspections in 
accordance with the Federal Acquisition Regulation and clauses 
contained in the contract or order.
(End of clause)


852.271-75  [Reserved]

* * * * *

PART 871--VOCATIONAL REHABILITATION AND EMPLOYMENT PROGRAMS

0
3. Part 871 is revised to read as follows:
Subpart 871.1 [RESERVED]
Subpart 871.2--Vocational Rehabilitation and Employment Service
871.200 Scope of subpart.
871.201 General.
871.201-1 Requirements for the use of contracts.
871.205 Proration of charges.
871.206 Other fees and charges.
871.207 Payment of tuition or fees.
871.208 Rehabilitation facilities.
871.209 Records and reports.
871.210 Prohibition on advertising--training of Veterans.
871.211 Contract clauses.

    Authority:  38 U.S.C. chapter 31; 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 871.1--[RESERVED]

Subpart 871.2--Vocational Rehabilitation and Employment Service


871.200  Scope of subpart.

    This subpart establishes policy and procedures for the vocational 
rehabilitation and employment services as it pertains to the following:
    (a) Contracts for training and rehabilitation services.
    (b) Approval of institutions (including rehabilitation facilities), 
training establishments, and employers under 38 U.S.C. chapter 31.
    (c) Contracts for counseling services under 38 U.S.C. chapters 30, 
31, 32, 35, and 36.


871.201  General.


871.201-1  Requirements for the use of contracts.

    The costs for tuition, fees, books, supplies, and other expenses 
are allowable under a contract with an institution, training 
establishment, or employer for the training and rehabilitation of 
eligible Veterans under 38 U.S.C. chapter 31, provided the services 
meet the conditions in the following definitions:
    (a) Courses of instruction by correspondence means a course of 
education or training conducted by mail consisting of regular lessons 
or reading assignments, the preparation of required written work that 
involves the application of principles studied in each

[[Page 39154]]

lesson, the correction of assigned work with such suggestions or 
recommendation as may be necessary to instruct the student, the keeping 
of student achievement records, and issuance of a diploma, certificate, 
or other evidence to the student upon satisfactorily completing the 
requirements of the course.
    (b) Special services or special courses means those services or 
courses that VA requests that are supplementary to those the 
institution customarily provides for similarly circumstanced non-
Veteran students and that the contracting officer considers to be 
necessary for the rehabilitation of the trainee.


871.205  Proration of charges.

    A contract must include the exact formula agreed on for the 
proration of charges in the event that the Veteran's program is 
interrupted or discontinued before the end of the term, semester, 
quarter, or other period, or the program is completed in less time than 
stated in the contract.

871.206 Other fees and charges.

    VA may pay fees and other charges that are not prescribed by law 
but are required by nongovernmental organizations, such as initiation 
fees required to become a member of a labor union and the dues 
necessary to maintain membership incidental to training on the job or 
to obtaining employment during a period in which the Veteran is a 
chapter 31 participant, provided there are no facilities feasibly 
available where the necessary training can be feasibly accomplished or 
employment obtained without paying such charges. Payment for such fees 
must be made in accordance with part 813.


871.207  Payment of tuition or fees.

    (a) Contracts, agreements, or arrangements requiring the payment of 
tuition or fees must provide either of the following:
    (1) Payment for tuition or fees must be made in arrears and must be 
prorated in installments over the school year or the length of the 
course.
    (2) An institution may be paid in accordance with paragraph (b) of 
this section, if the institution operates on a regular term, quarter, 
or semester basis and normally accepts students only at the beginning 
of the term, quarter, or semester and if the institution is one of the 
following:
    (i) An institution of higher learning that uses a standard unit of 
credit recognized by accrediting associations. Such institutions 
include those that are members of recognized national or regional 
educational accrediting associations, and those that, although not 
members of such accrediting associations, grant standard units of 
credit acceptable at full value without examination by collegiate 
institutions that are members of national or regional accrediting 
associations.
    (ii) A public tax-supported institution.
    (iii) An institution operated and controlled by a State, county, or 
local board of education.
    (b) An institution that meets the exceptions of paragraph (a)(2) of 
this section and that has a refund policy providing for a graduated 
scale of charges for purposes of determining refunds may be paid part 
or all such tuitions or fees for a term, quarter, or other period of 
enrollment immediately following the date on which the refund expires.
    (c) Proration of charges does not apply to a fee for noncontinuing 
service, such as a registration fee, etc.
    (d) The period for which payment of charges may be made is the 
period of actual enrollment and is subject to the following:
    (1) The effective date is the date of the trainee's entrance into 
training status, except that payment may be made for an entire 
semester, quarter, or term in institutions operating on that basis if 
the trainee enters no later than the final date set by the institution 
for enrolling for full credit.
    (2) In those cases where the institution has not set a final date 
for enrolling for full credit or does not set a date acceptable to VA, 
payment may be prorated on the basis of attendance, regardless of the 
refund policy.
    (3) If an institution customarily charges for the amount of credit 
or number of hours of attendance for which a trainee enrolls, payment 
may be made on that basis when a trainee enrolls after the final date 
permitted for carrying full credit for the semester or term.


871.208  Rehabilitation facilities.

    Charges by rehabilitation facilities for the rehabilitation 
services provided under 38 U.S.C. chapter 31 are paid in the same 
manner as charges for educational and vocational services through 
contract, agreement, or other arrangement.


871.209  Records and reports.

    Contracts, agreements, or arrangements must provide for the number 
and frequency of reports, adequate financial records to support payment 
for each trainee, and maintenance of attendance and progress records. 
Such records must be preserved for a period of three years.


871.210  Prohibition on advertising--training of Veterans.

    The training of persons under a VA contract or the fact that the 
United States is using the facilities of the institution for training 
Veterans must not be used in any way to advertise the institution. 
References in the advertising media or correspondence of the 
institution shall be limited to a list of courses under 38 U.S.C. 
chapter 31 and must not be directed or pointed specifically to 
Veterans.


871.211  Contract clauses.

    (a) Contracting officers must use the following clauses, as 
appropriate, in solicitations and contracts for vocational 
rehabilitation and employment services as they pertain to training and 
rehabilitation services and contracts for counseling services:
    (1) 852.271-72, Time Spent by Counselee in Counseling Process.
    (2) 852.271-73, Use and Publication of Counseling Results.
    (3) 852.271-74, Inspection of Instruction, Counseling or Testing 
Operations.
    (b) See 837.110-70(a) for clause 852.237-74, Non-Discrimination in 
Service Delivery.

[FR Doc. 2020-12906 Filed 6-29-20; 8:45 am]
BILLING CODE 8320-01-P