[Federal Register Volume 86, Number 12 (Thursday, January 21, 2021)]
[Proposed Rules]
[Pages 6281-6288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29196]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 852 and 873
RIN 2900-AQ78
VA Acquisition Regulation: Simplified Procedures for Health-Care
Resources
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
and update its VA Acquisition Regulation (VAAR) in phased increments to
revise or remove any policy superseded by changes in the Federal
Acquisition Regulation (FAR), to remove any procedural guidance
internal to VA into the VA Acquisition Manual (VAAM), and to
incorporate any new agency specific regulations or policies. These
changes seek to streamline and align the VAAR with the FAR and remove
outdated and duplicative requirements and reduce burden on contractors.
The VAAM incorporates portions of the removed VAAR as well as other
internal agency acquisition policy. VA will rewrite certain parts of
the VAAR and VAAM, and as VAAR parts are rewritten, will publish them
in the Federal Register. VA will combine related topics, as
appropriate. This rulemaking revises VAAR coverage concerning
Simplified Procedures for Health-Care Resources as well as an affected
part concerning Solicitation Provisions and Contract Clauses.
DATES: Comments must be received on or before March 22, 2021 to be
considered in the formulation of the final rule.
ADDRESSES: Comments may be submitted through www.Regulations.gov or
mailed to Mr. Rafael Taylor, (003A2A), Department of Veterans Affairs,
Procurement Policy and Warrant Management Services, 425 I Street NW,
Room 1064, Washington, DC 20001. Comments should indicate that they are
submitted in response to ``RIN 2900-AQ78--VA Acquisition Regulation:
Simplified Procedures for Health-Care Resources.'' Comments received
will be available at regulations.gov for public viewing, inspection or
copies.
FOR FURTHER INFORMATION CONTACT: Mr. Rafael 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 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 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
online.
VAAR Part 852--Solicitation Provisions and Contract Clauses
We are proposing to revise the following provisions to make minor
grammatical corrections and to capitalize all principal words in their
titles: 852.273-70, Late Offers; 852.273-71, Alternative Negotiation
Techniques; 852.273-72, Alternative Evaluation; 852.273-73,
Evaluation--Health-Care Resources, and 852.273-74, Award Without
Exchanges. The provisions 852.273-71, Alternative Negotiation
Techniques, and 852.273-73, Evaluation--Health-Care Resources, are also
amended to revise the citation in the first sentence to read
``873.110(d).''
VAAR Part 873--Simplified Procedures for Health-Care Resources
We propose to modify the title of part 873 by deleting the word
``Acquisition'' to reflect more accurately the meaning of the statute
(38 U.S.C. 8153). The title would then be ``Simplified Procedures for
Health-Care Resources.'' This change avoids any misunderstanding that
these acquisitions would be subject to FAR Part 13, Simplified
Acquisition Procedures, and the corresponding part 813 in the VAAR.
We also propose to revise the part 873 authorities to add 38 U.S.C.
8127-8128, VA's unique authority as implemented under the Veterans
First Contracting Program.
We propose to replace the 38 U.S.C. 501 citation with 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
[[Page 6282]]
policies, regulations, and standards of the executive agency.
We propose to modify the citation 38 U.S.C. 8153 to 38 U.S.C. 8151-
8153 to correctly cite the complete authority of the statute.
We propose to add the citation of 41 U.S.C. 1121(c)(3) which 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 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.
In 873.101, Policy, we propose to revise the single paragraph to
explain more clearly the types of health-care resources that may be
procured from VA-affiliated institutions under the authority of 38
U.S.C. 7302, and to explain when and how such resources that are
commercial services may be procured from sources that are not
affiliated with the Department under 38 U.S.C. 7302.
In 873.102, Definitions, we propose to revise the definition of
``Commercial service'' to remove the phrase ``except construction
exceeding $2,000 and architect-engineer services'' since it is not a
limitation contained in 38 U.S.C. 8153.
We propose to revise 873.103, Priority sources, by removing the
unnecessary phrase ``Without regard to FAR 8.002(a)(2)'' in the first
sentence. We also propose to add a statement regarding the
applicability of 38 U.S.C. 8127(d) to this part by inserting a
reference to revised policy regarding the priority of AbilityOne
covered services as a mandatory source set forth at 808.002 (a)(2)
(which implements Pub. L. 116-155, the Department of Veterans Affairs
Contracting Preference Consistency Act of 2020). AbilityOne covered
services remain a priority source under VAAR part 873 as set forth in
808.002(a)(2). We also propose to insert a reference to 873.107,
Socioeconomic programs.
In VAAR section 873.104, Competition requirements, we propose to
clarify that health-care resources may be acquired on a sole source
basis from an institution affiliated with the Department under 38
U.S.C. 7302 if the resource is a commercial service, the use of medical
equipment or space, or research. Such sole source contracts are not
required to be publicized as required by FAR 5.101, nor do they require
written justification under 41 U.S.C. 3304(e) or under FAR part 6. It
would also clarify that when acquiring health-care resources from
institutions or organizations not affiliated with the VA, then the
Department shall permit all responsible sources, as appropriate, to
submit a bid, proposal, or quotation for the resources to be procured
and to provide for the consideration by the Department of bids,
proposals, or quotations so submitted. Such actions shall also be
publicized as otherwise required by VAAR section 873.108.
We propose to revise VAAR section 873.105, Acquisition planning, to
delete the first paragraph as unnecessary; to redesignate the remaining
paragraphs as (a), (b), and (c); to limit the need to assemble an
acquisition team to those actions with non-affiliated sources described
in VAAR section 873.104(b); and to comply with the requirements of the
Veterans First preferences in VAAR subpart 819.70 and section 873.103
when performing market research.
We propose to revise the title of VAAR section 873.106 to read
``Exchanges with industry before receipt of proposals.'' We also
propose to remove the reference to FAR part 10 as unnecessary, to add a
sentence requiring that any exchange of information must be consistent
with procurement integrity requirements in FAR 3.104, to replace the
name ``Central Contractor Registration'' with that of the current
system, ``System for Award Management,'' and to require research of the
VA's Vendor Information Pages (VIP) database to help identify potential
VIP-listed and verified Veteran-owned small business concerns.
In section 873.107, Socioeconomic programs, we propose to revise
and clarify the policy set forth in this section to require
implementation of the VA Rule of Two in accordance with VAAR subpart
819.70, and make necessary clarifications regarding priority sources
and application of other small business programs. These clarifications
and revisions are necessary to fully implement the requirements under
various U.S. Federal court cases and new legislation, including the
U.S. Supreme Court decision of June 16, 2016, in Kingdomware
Technologies, Inc. v. United States, and the recently enacted Public
Law 116-155, the Department of Veterans Affairs Contracting Preference
Consistency Act of 2020, signed on August 8, 2020.
We propose to modify section 873.108, Publicizing contract actions,
to require publication of only competitive acquisitions, to delete a
reference to part 813 to avoid confusion, to remove repetitive language
from section 873.104(a), and to make other minor edits.
In VAAR section 873.109, General requirements for acquisition of
health-care resources, we propose to revise the section to conform to
the requirement of the deviation ``Class deviation from VA Acquisition
Regulation (VAAR) 815.303--Responsibilities,'' of December 15, 2016,
designating the contracting officer to be the Source Selection
Authority (SSA) unless the HCA has appointed another person to perform
that role; to refer to both Performance Work Statements and Statements
of Work when discussing ``specifications;'' and to correct a cross
reference to read ``873.111(d)(1)(ii).''
We propose to revise section 873.110, Solicitation provisions, to
capitalize all clauses and provisions referenced in the section; to
revise paragraph (a) to clarify the basis for using provision 852.271-
70, Late Offers, in solicitations; to correct the reference in (b) to
``Alternative Negotiation Techniques'' to cite ``873.111(d)(1),'' and
the reference in (c) to ``873.111(d)(1)(ii);'' to revise paragraphs (d)
and (e) to incorporate the appropriate capitalization of the
provisions; and to remove from (f) the prescription of clause 852.207-
70, Report of Employment Under Commercial Activities, as that clause is
obsolete since the A-76 program is not currently effective.
In section 873.111, Acquisition strategies for health-care
resources, we propose to make several minor edits to the text; to
remove the opening phrase ``Without regard to FAR 13.003 or
13.500(a),'' as unnecessary; to insert the acronym ``RFQ'' and the word
``subparts'' paragraph (a)(1); to change the spelling of the word
``Part'' in (a)(2) to lower case; to delete existing paragraph (c) as
unnecessary; and to redesignate the remaining paragraphs as (c) and
(d).
We propose to revise section 873.113, Exchanges with offerors, to
delete in paragraph (c) the repetitive use of the word ``perceived;''
and to correct the citation in paragraph (e) to 873.111(d)(1) regarding
alternative negotiation techniques.
We propose to make two minor edits to the last sentence in
paragraph (a) in 873.115, Proposal revisions, to insert the word
``all'' after the word ``safeguard'' to stress the need for protecting
proposals and revisions, and to delete as unnecessary the word
``thereto.''
In section 873.116, Source selection decision, we propose to
replace the term
[[Page 6283]]
``contracting officer'' in paragraphs (a) and (b) with ``Source
Selection Authority'' or ``SSA'' to be consistent with the deviation
``Class deviation from VA Acquisition Regulation (VAAR) 815.303--
Responsibilities,'' of December 15, 2016, and to remove from paragraph
(c) the reference to section 815.308 since that section does not exist.
In section 873.118, Debriefings, we propose to revise the first
sentence to read ``Offerors whose proposals are not accepted under a
competitive request for proposals (RFP) may submit a written request
for a debriefing to the contracting officer.'' The current language
uses non-standard acquisition terms.
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 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 will have no such effect
on State, local, and tribal Governments or on the private sector.
List of Subjects
48 CFR Part 852
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 873
Government procurement.
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. Brooks D.
Tucker, Assistant Secretary for Congressional and Legislative Affairs,
Performing the Delegable Duties of the Chief of Staff, Department of
Veterans Affairs, approved this document on July 17, 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 parts 852 and 873 as follows:
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
1. The authorities for part 852 continue 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.
Subpart 852.2--Text of Provisions and Clauses
0
2. Section 852.273-70 is revised to read as follows:
852.273-70 Late Offers.
As prescribed in 873.110(a), insert the following provision:
LATE OFFERS (DATE)
This provision replaces paragraph (f) of FAR provision 52.212-1,
Instructions to Offerors--Commercial Items. Offers or modifications
of offers received after the time set forth in a request for
quotations or request for proposals may be considered, at the
discretion of the Contracting Officer, if determined to be in the
best interest of the Government. Late bids submitted in response to
an invitation for bid (IFB) will not be considered.
(End of provision)
0
3. Section 852.273-71 is revised to read as follows:
852.273-71 Alternative Negotiation Techniques.
As prescribed in 873.110(b), insert the following provision:
ALTERNATIVE NEGOTIATION TECHNIQUES (DATE)
The Contracting Officer may elect to use the alternative
negotiation techniques described in 873.111(d) in conducting this
procurement. If used, Offerors may respond by maintaining offers as
originally submitted, revising offers, or submitting an alternative
offer. The Government may consider initial offers unless revised or
withdrawn, revised offers, and alternative offers in making the
award. Revising an offer does not guarantee an offeror an award.
(End of provision)
0
4. Section 852.273-72 is revised to read as follows:
852.273-72 Alternative Evaluation.
As prescribed in 873.110(c), insert the following provision:
ALTERNATIVE EVALUATION (DATE)
(a) The Government will award a contract resulting from this
solicitation to the responsible Offeror submitting the lowest priced
offer that conforms to the solicitation. During the specified period
for receipt of offers, the amount of the lowest offer will be posted
and may be viewed by [Contracting Officer insert description of how
the information may be viewed electronically or
[[Page 6284]]
otherwise]. Offerors may revise offers anytime during the specified
period. At the end of the specified time period for receipt of
offers, the responsible Offeror submitting the lowest priced offer
will be in line for award.
(b) Except when it is determined not to be in the Government's
best interest, the Government will evaluate offers for award
purposes by adding the total price for all options to the total
price for the basic requirement. The Government may determine that
an offer is unacceptable if the option prices are materially
unbalanced. Evaluation of options shall not obligate the Government
to exercise the option(s).
(End of provision)
0
5. Section 852.273-73 is revised to read as follows:
852.273-73 Evaluation--Health-Care Resources.
As prescribed in 873.110(d), in lieu of FAR provision 52.212-2, the
Contracting Officer may insert a provision substantially as follows:
EVALUATION--HEALTH-CARE RESOURCES (DATE)
(a) The Government will award a contract resulting from this
solicitation to the responsible Offeror whose proposal, conforming
to the solicitation, will be most advantageous to the Government,
price and other factors considered. The following information or
factors shall be used to evaluate offers: [Contracting Officer
insert evaluation information or factors, such as technical
capability to meet the Government's requirements, past performance,
or such other evaluation information or factors as the Contracting
Officer deems necessary to evaluate offers. Price must be evaluated
in every acquisition. The Contracting Officer may include the
evaluation information or factors in their relative order of
importance, such as in descending order of importance. The relative
importance of any evaluation information must be stated in the
solicitation.]
(b) Except when it is determined not to be in the Government's
best interest, the Government will evaluate offers for award
purposes by adding the total price for all options to the total
price for the basic requirement. The Government may determine that
an offer is unacceptable if the option prices are materially
unbalanced. Evaluation of options shall not obligate the Government
to exercise the option(s). The Government may reject any or all
proposals if such action is in the Government's interest.
Additionally, the Government may waive informalities and minor
irregularities in proposals received.
(c) If this solicitation is a request for proposals (RFP), a
written notice of award or acceptance of a proposal, mailed or
otherwise furnished to the successful Offeror within the time for
acceptance specified in the solicitation, shall result in a binding
contract without further action by either party. Before the
proposal's specified expiration time, the Government may accept a
proposal (or part of a proposal), whether or not there are
negotiations after its receipt, unless a written notice of
withdrawal is received by the Contracting Officer before award.
(End of provision)
0
6. Section 852.273-74 is revised to read as follows:
852.273-74 Award Without Exchanges.
As prescribed in 873.110(e), insert the following provision:
AWARD WITHOUT EXCHANGES (DATE)
The Government intends to evaluate proposals and award a
contract without exchanges with Offerors. Therefore, each initial
proposal should contain the Offeror's best terms from a cost or
price and technical standpoint. However, the Government reserves the
right to conduct exchanges if later determined by the Contracting
Officer to be necessary.
0
7. Part 873 is revised to read as follows:
PART 873--SIMPLIFIED PROCEDURES FOR HEALTH-CARE RESOURCES
Sec.
873.101 Policy.
873.102 Definitions.
873.103 Priority sources.
873.104 Competition requirements.
873.105 Acquisition planning.
873.106 Exchanges with industry before receipt of proposals.
873.107 Socioeconomic programs.
873.108 Publicizing contract actions.
873.109 General requirements for acquisition of health-care
resources.
873.110 Solicitation provisions.
873.111 Acquisition strategies for health-care resources.
873.112 Evaluation information.
873.113 Exchanges with offerors.
873.114 Best value pool.
873.115 Proposal revisions.
873.116 Source selection decision.
873.117 Award to successful offeror.
873.118 Debriefings.
Authority: 38 U.S.C. 8127-8128; 38 U.S.C. 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.
873.101 Policy.
(a) General. In accordance with 38 U.S.C. 8153, to secure health-
care resources which otherwise might not be feasibly available, or to
effectively utilize certain other health-care resources, the Department
of Veterans Affairs (VA) may make arrangements by contract for the
mutual use, or exchange of use, of health-care resources between VA
health-care facilities and any health-care provider, or other entity or
individual. This part prescribes simplified procedures for contracts
with entities not affiliated with VA under 38 U.S.C. 7302 to secure
health-care resources that are a commercial service, or the use of
medical equipment or space. VA may enter into such a contract if such
resources are not, or would not be, used to their maximum effective
capacity. (38 U.S.C. 8153)
(b) Precedence. These procedures shall be used in conjunction with
the Federal Acquisition Regulation (FAR) and other parts of the VAAR.
However, when a policy or procedure in the FAR or another part of the
VAAR is inconsistent with the procedures contained in this part, this
part shall take precedence. (38 U.S.C. 8153)
873.102 Definitions.
Commercial service means a service that is offered and sold
competitively in the commercial marketplace, is performed under
standard commercial terms and conditions, and is procured using firm-
fixed price contracts. (38 U.S.C. 8153)
Health-care providers include health-care plans and insurers and
any organizations, institutions, or other entities or individuals who
furnish health-care resources. (38 U.S.C. 8153)
Health-care resource includes hospital care and medical services
(as those terms are defined in 38 U.S.C. 1701 and services under
sections 1782 and 1783 of this title) any other health-care service,
and any health-care support or administrative resource. (38 U.S.C.
8152)
873.103 Priority sources.
Except for the acquisition of covered services available from the
Committee for Purchase From People Who Are Blind or Severely Disabled
and the AbilityOne Program (see FAR subpart 8.7), there are no priority
sources for the acquisition of health-care resources consisting of
commercial services or the use of medical equipment or space in
accordance with 808.002(a)(2) and 873.107. (38 U.S.C. 8153)
873.104 Competition requirements.
(a) Affiliated institutions. (1) A health-care resource may be
acquired on a sole source basis if a commercial service, the use of
medical equipment or space, or research, and is to be acquired from an
institution affiliated with the VA in accordance with 38 U.S.C. 7302,
including medical practice groups and other entities associated with
affiliated institutions, blood banks, organ banks, or research centers.
(38 U.S.C. 8153(a)(3)(A))
(2) Acquisitions of health-care resources identified in paragraph
(a)(1) of this section are not required to be publicized as otherwise
required by 873.108 or FAR 5.101.
(b) Non-affiliated entities. (1) If the health-care resource
required is a
[[Page 6285]]
commercial service or the use of medical equipment or space, and is to
be acquired from an entity not described in paragraph (a)(1) of this
section, contracting officers shall permit all responsible sources, as
appropriate, to submit a bid, proposal, or quotation for the resource
to be procured, and provide for the consideration by VA of bids,
proposals, or quotations so submitted. (38 U.S.C. 8153(a)(3)(B))
(2) Acquisition of health-care resources identified in paragraph
(b)(1) of this section shall be publicized as otherwise required by
873.108. Moreover, for any such acquisition described in paragraph
(b)(1) of this section to be conducted on a sole source basis, the
contracting officer must prepare a justification that includes the
information and is approved at the levels prescribed in FAR part 6.303.
(38 U.S.C. 8153(a)(3)(D))
873.105 Acquisition planning.
(a) For the acquisition of health-care resources consisting of
commercial services or the use of medical equipment or space from non-
affiliated institutions as described in 873.104(b), where the
acquisition is expected to exceed the simplified acquisition threshold
(SAT), an acquisition team must be assembled. The team shall be
tailored by the contracting officer for each particular acquisition
expected to exceed the SAT. The team should consist of a mix of staff,
appropriate to the complexity of the acquisition, and may include
fiscal, legal, administrative, and technical personnel, and such other
expertise as necessary to assure a comprehensive acquisition plan. The
team should include the small business advocate representing the
contracting activity or a higher-level designee. At a minimum, the team
must include the contracting officer and a representative of the Office
of General Counsel and the requesting service. (38 U.S.C. 8153)
(b) The contracting officer or the acquisition team, as
appropriate, must conduct market research, including satisfying the
requirements of VAAR 808.002(a)(2) and 873.107, Socioeconomic programs,
and a VA Rule of Two determination. It is the responsibility of the
contracting officer to ensure the requirement is appropriately
publicized and information about the procurement opportunity is
adequately disseminated as set forth in 873.107. (38 U.S.C. 8153)
(c) In lieu of the requirements of FAR part 7 addressing
documentation of the acquisition plan, the contracting officer may
conduct an acquisition strategy meeting with cognizant offices to seek
approval for the proposed acquisition approach. If a meeting is
conducted, briefing materials shall be presented to address the
acquisition plan topics and structure in FAR 7.105. Formal written
minutes--summarizing decisions, actions, and conclusions--shall be
prepared and included in the contract file, along with a copy of the
briefing materials. (38 U.S.C. 8153)
873.106 Exchanges with industry before receipt of proposals.
(a) Exchange of information among all interested parties involved
in an acquisition described in 873.104(b), from the earliest
identification of a requirement through release of the solicitation, is
encouraged. Any exchange of information must be consistent with
procurement integrity requirements in FAR 3.104. The nature and extent
of exchanges between the Government and industry shall be a matter of
the contracting officer's discretion (for acquisitions not exceeding
the simplified acquisition threshold) or the acquisition team's
discretion, as coordinated by the contracting officer. (38 U.S.C. 8153)
(b) Techniques to promote early exchange of information include--
(1) Industry or small business conferences;
(2) Public hearings;
(3) Market research in accordance with FAR 10.002(b), which shall
be followed to the extent that the provisions therein would provide
relevant information;
(4) One-on-one meetings with potential offerors;
(5) Presolicitation notices;
(6) Draft requests for proposals (RFPs);
(7) Requests for information (RFIs);
(8) Presolicitation or preproposal conferences;
(9) Site visits;
(10) Electronic notices (e.g., internet); and
(11) Use of the System for Award Management (SAM) (see http://www.sam.gov/.
(12) Researching VA's Vendor Information Pages (VIP) database at
https://www.vip.vetbiz.va.gov/.
873.107 Socioeconomic programs.
(a) The Veterans First Contracting Program in VAAR subpart 819.70
takes precedence over other small business programs. (38 U.S.C. 8127-
8128)
(b)(1) Except for contract actions subject to 808.002(a)(2),
competitive contract actions not otherwise excluded under this part
shall be set-aside for VIP-listed service-disabled veteran-owned small
business (SDVOSB) concerns or veteran-owned small business (VOSB)
concerns if the contracting officer has a reasonable expectation that
two or more eligible small business concerns owned and controlled by
Veterans will submit offers and that the award can be made at a fair
and reasonable price that offers best value to the United States. (38
U.S.C. 8127-8128)
(2) The contracting officer shall proceed with the acquisition
under the simplified procedures of this part considering priority
sources (see 808.008(a)(2) and 873.103) and preferences for other small
businesses in accordance with 819.203-70 and 819.7004. (38 U.S.C. 8153)
(c) Without regard to FAR 13.003(b)(1), 19.203, 19.502, the head of
the contracting activity (HCA) may approve a waiver from the
requirement for any set-aside for small business participation when a
waiver is determined to be in the best interest of the Government. (38
U.S.C. 8153)
(d) The contracting officer shall ensure priorities for veteran-
owned small businesses are implemented within the VA hierarchy of small
business program preferences, established by 38 U.S.C. 8127 and 8128,
as implemented in VAAR subpart 819.70, the Veterans First Contracting
Program. Specifically, the contracting officer shall consider
preferences for verified service-disabled veteran-owned small
businesses (SDVOSBs) first, then preferences for verified veteran-owned
small businesses (VOSBs). These priorities will be followed by
preferences for other small business concerns in accordance with FAR
19.203, 819.203-70 and 819.7004. (38 U.S.C. 8153)
873.108 Publicizing contract actions.
(a) All competitive acquisitions under this part, except as
provided in paragraph (b) of this section, for dollar amounts in excess
of the SAT, shall be publicly announced utilizing a medium designed to
permit all responsible sources, as appropriate under the provisions of
this part, to submit a bid, proposal, or quotation (as appropriate).
(1) The publication medium may include the internet, including the
Governmentwide point of entry (GPE), and local, regional or national
publications or journals, as appropriate, at the discretion of the
contracting officer, depending on the complexity of the acquisition.
(2) Notice shall be published for a reasonable time prior to
issuance of a solicitation, depending on the complexity or urgency of
the acquisition, in order to afford potential offerors a reasonable
opportunity to respond. If the notice includes a
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complete copy of the RFQ or solicitation, a prior notice is not
required, and the RFQ or solicitation shall be considered to be
announced and issued at the same time.
(3) The notice may include contractor qualification parameters,
such as time for delivery of service, credentialing or medical
certification requirements, small business or other socio-economic
preferences, the appropriate small business size standard, and such
other qualifications as the contracting officer deems necessary to meet
the needs of the Government. (38 U.S.C. 8153)
(b) The requirement for public announcement does not apply to sole
source acquisitions described in 873.104(a). However, as required by 38
U.S.C. 8153(a)(3)(D), acquisitions from an institution not affiliated
with the Department in accordance with 38 U.S.C. 7302, if conducted on
a sole source basis, must still be justified and publicized (see
873.104(b)(2)). (38 U.S.C. 8153)
(c) For acquisitions below the SAT, a public announcement is
optional. (38 U.S.C. 8153)
(d) Each solicitation issued under these procedures must
prominently identify that the requirement is being solicited under the
authority of 38 U.S.C. 8153 and part 873. (38 U.S.C. 8153)
873.109 General requirements for acquisition of health-care resources.
(a) Source selection authority. Unless the head of the contracting
activity (HCA) appoints another individual to serve as the Source
Selection Authority (SSA), the contracting officer shall be the SSA for
acquisitions of health-care resources, consisting of commercial
services, or the use of medical equipment or space, utilizing the
guidance contained in this part 873. (38 U.S.C. 8153)
(b) Performance Work Statement/Statement of Work. The performance
work statement (PWS) or statement of work (SOW) must define the
requirement and should, in most instances, include qualifications or
limitations such as time limits for delivery of service, medical
certification or credentialing restrictions, and small business or
other socio-economic preferences. The contracting officer may include
any other such terms as the contracting officer deems appropriate for
each specific acquisition. (38 U.S.C. 8153)
(c) Documentation. Without regard to FAR 13.106-3(b), 13.501(b), or
15.406-3, the contract file must include--
(1) A brief written description of the procedures used in awarding
the contract;
(2) A written determination that the health-care resources being
procured are not otherwise feasibly available or that utilization of
such health-care resources is necessary to meet mission requirements;
(3) Documentation of market research and the results of such
research;
(4) The number of offers received; and
(5) An explanation, tailored to the size and complexity of the
acquisition, of the basis for the contract award decision. (38 U.S.C.
8153)
(d) Time for receipt of quotations or offers. (1) Without regard to
FAR 5.203, contracting officers shall set a reasonable time for receipt
of quotations or proposals in the solicitations.
(2) Without regard to FAR 15.208 or 52.212-1(f), quotations or
proposals received after the time set forth in an RFQ or request for
proposals (RFP) may be considered at the discretion of the contracting
officer if determined to be in the best interest of the Government.
Contracting officers must document the rationale for accepting
quotations or proposals received after the time specified in the RFQ or
RFP. This paragraph (d)(2) shall not apply to RFQs or RFPs if
alternative evaluation techniques described in 873.111(d)(1)(ii) are
used. This paragraph (d)(2) does not apply to invitations for bid
(IFBs). (38 U.S.C. 8153)
(e) Cancellation of procurements. Any acquisition may be canceled
by the contracting officer at any time during the acquisition process
if cancellation is determined to be in the best interest of the
Government and a memorandum for the record in included in the
solicitation file explaining the reasons for the cancellation. (38
U.S.C. 8153)
873.110 Solicitation provisions.
(a) As required in 873.109(d), contracting officers shall set a
reasonable time for receipt of quotations or proposals and shall insert
the provision at 852.273-70, Late Offers, in all RFQs and RFPs
exceeding the micro-purchase threshold. However, this provision shall
not be used if the provision 852.273-71, Alternative Negotiation
Techniques, is to be used. (38 U.S.C. 8153)
(b) The contracting officer shall insert a provision in RFQs and
solicitations, substantially the same as the provision at 852.273-71,
Alternative Negotiation Techniques, when either of the alternative
negotiation techniques described in 873.111(d)(1) will be used. (38
U.S.C. 8153)
(c) The contracting officer shall insert the provision at 852.273-
72, Alternative Evaluation, in lieu of the provision at 52.212-2,
Evaluation--Commercial Items, when the alternative negotiation
technique described in 873.111(d)(1)(ii) will be used. (38 U.S.C. 8153)
(d) When evaluation information, as described in 873.112, is to be
used to select a contractor under a RFQ or RFP for health-care
resources consisting of commercial services or the use of medical
equipment or space, the contracting officer may insert the provision at
852.273-73, Evaluation--Health-Care Resources, in the RFQ or RFP in
lieu of FAR provision 52.212-2. (38 U.S.C. 8153)
(e) As provided at 873.113(f), if award may be made without
exchange with offerors, the contracting officer shall include the
provision at 852.273-74, Award Without Exchanges, in the RFQ or RFP.
(38 U.S.C. 8153)
(f) The contracting officer shall insert the FAR clause at 52.207-
3, Right of First Refusal of Employment, in all RFQs, solicitations,
and contracts issued under the authority of 38 U.S.C. 8151-8153 which
may result in a conversion, from in-house performance to contract
performance, of work currently being performed by Department of
Veterans Affairs employees. (38 U.S.C. 8153)
873.111 Acquisition strategies for health-care resources.
The following acquisition processes and techniques may be used,
singly or in combination with others, as appropriate, to design
acquisition strategies suitable for the complexity of the requirement
and the amount of resources available to conduct the acquisition. These
strategies should be considered during acquisition planning. The
contracting officer shall select the process most appropriate to the
particular acquisition. There is no preference for sealed bid
acquisitions. (38 U.S.C. 8153)
(a) Request for quotations (RFQ). (1) Without regard to FAR
subparts 6.1 or 6.2, contracting officers must solicit a sufficient
number of sources to promote competition to the maximum extent
practicable and to ensure that the purchase is advantageous to the
Government, based, as appropriate, on either price alone or price and
other factors (e.g., past performance and quality). RFQs must notify
vendors of the basis upon which the award is to be made. (see FAR
13.004)
(2) For acquisitions in excess of the SAT, the procedures set forth
in FAR part 13 concerning RFQs may be utilized without regard to the
dollar
[[Page 6287]]
thresholds contained therein. (38 U.S.C. 8153)
(b) Sealed bidding. FAR part 14 provides procedures for sealed
bidding.
(c) Multiphase acquisition technique. (1) General. Without regard
to FAR 15.202, multiphase acquisitions may be appropriate when the
submission of full proposals at the beginning of an acquisition would
be burdensome for offerors to prepare and for Government personnel to
evaluate. Using multiphase techniques, the Government may seek limited
information initially, make one or more down-selects, and request a
full proposal from an individual offeror or limited number of offerors.
Provided that the notice notifies offerors, the contracting officer may
limit the number of proposals during any phase to the number that will
permit an efficient competition among proposals offering the greatest
likelihood of award. The contracting officer may indicate in the notice
an estimate of the greatest number of proposals that will be included
in the down-select phase. The contracting officer may down-select to a
single offeror. (38 U.S.C. 8153)
(2) First phase notice. In the first phase, the Government shall
publish a notice (see 873.108) that solicits responses and that may
provide, as appropriate, a general description of the scope or purpose
of the acquisition and the criteria that will be used to make the
initial down-select decision. The notice may also inform offerors of
the evaluation criteria or process that will be used in subsequent
down-select decisions. The notice must contain sufficient information
to allow potential offerors to make an informed decision about whether
to participate in the acquisition. The notice must advise offerors that
failure to participate in the first phase will make them ineligible to
participate in subsequent phases. The notice may be in the form of a
synopsis in the Governmentwide point of entry (GPE) or a narrative
letter or other appropriate method that contains the information
required by this paragraph. (38 U.S.C. 8153)
(3) First phase responses. Offerors shall submit the information
requested in the notice described in paragraph (d)(2) of this section.
Information sought in the first phase may be limited to a statement of
qualifications and other appropriate information (e.g., proposed
technical concept, past performance information, limited pricing
information). (38 U.S.C. 8153)
(4) First phase evaluation and down-select. The Government shall
evaluate all offerors' submissions in accordance with the notice and
make a down-select decision. (38 U.S.C. 8153)
(5) Subsequent phases. Additional information shall be sought in
the second phase so that a down-select can be performed or an award
made without exchanges, if necessary. The contracting officer may
conduct exchanges with remaining offeror(s), request proposal
revisions, or request best and final offers, as determined necessary by
the contracting officer, in order to make an award decision. (38 U.S.C.
8153)
(6) Debriefing. Without regard to FAR 15.505, contracting officers
must debrief offerors whose proposals are not accepted under a
competitive request for proposals (RFP) as required by 873.118. (38
U.S.C. 8153)
(d) Alternative negotiation techniques. (1) Contracting officers
may utilize alternative negotiation techniques for the acquisition of
health-care resources. Alternative negotiation techniques may be used
when award will be based on either price or price and other factors.
Alternative negotiation techniques include but are not limited to:
(i) Indicating to offerors a price, contract term or condition,
commercially available feature, and/or requirement (beyond any
requirement or target specified in the solicitation) that offerors will
have to improve upon or meet, as appropriate, in order to remain
competitive.
(ii) Posting offered prices electronically or otherwise (without
disclosing the identity of the offerors) and permitting revisions of
offers based on this information.
(2) Except as otherwise permitted by law, contracting officers
shall not conduct acquisitions under this section in a manner that
reveals the identities of offerors, releases proprietary information,
or otherwise gives any offeror a competitive advantage (see FAR 3.104).
(38 U.S.C. 8153)
873.112 Evaluation information.
(a) Without regard to FAR 15.304--Evaluation factors and
significant subfactors (except for 15.304(c)(1) and (c)(3), which do
apply to acquisitions under this authority), the criteria, factors, or
other evaluation information that apply to an acquisition, and their
relative importance, are within the broad discretion of agency
acquisition officials as long as the evaluation information is
determined to be in the best interest of the Government. (38 U.S.C.
8153)
(b) Price or cost to the Government must be evaluated in every
source selection. Past performance shall be evaluated in source
selections for competitive acquisitions exceeding the SAT unless the
contracting officer documents that past performance is not an
appropriate evaluation factor for the acquisition. (38 U.S.C. 8153)
(c) The quality of the product or service may be addressed in
source selection through consideration of information such as past
compliance with solicitation requirements, technical excellence,
management capability, personnel qualifications, and prior experience.
The information required from quoters, bidders, or offerors shall be
included in notices or solicitations, as appropriate. (38 U.S.C. 8153)
(d) The relative importance of any evaluation information included
in a solicitation must be set forth therein. (38 U.S.C. 8153)
873.113 Exchanges with offerors.
(a) Without regard to FAR 15.201 or 15.306, acquisitions generally
involve exchanges between the Government and competing offerors. Open
exchanges support the goal of efficiency in Government by providing the
Government with relevant information (in addition to that submitted in
the offeror's initial proposal) needed to understand and evaluate the
offeror's proposal. The nature and extent of exchanges between the
Government and offerors is a matter of contracting officer judgment.
Clarifications, communications, and discussions are not applicable to
acquisitions under this part 873. (38 U.S.C. 8153)
(b) Exchanges with potential offerors may take place throughout the
source selection process. Exchanges may start in the planning stages
and continue through contract award. Exchanges should occur most often
with offerors determined to be in the best value pool (see 873.114).
The purpose of exchanges is to ensure there is mutual understanding
between the Government and the offerors on all aspects of the
acquisition, including offerors' submittals/proposals. Information
disclosed as a result of oral or written exchanges with an offeror may
be considered in the evaluation of an offeror's proposal. (38 U.S.C.
8153)
(c) Exchanges may be conducted, in part, to obtain information that
explains or resolves ambiguities or other concerns (e.g., perceived
errors, omissions, or deficiencies) in an Offeror's proposal. (38
U.S.C. 8153)
(d) Exchanges shall only be initiated if authorized by the
contracting officer and need not be conducted with all offerors. (38
U.S.C. 8153)
(e) Except for acquisitions based on alternative negotiation
techniques contained in 873.111(d)(1), the contracting officer and
other Government personnel involved in the acquisition shall not
disclose
[[Page 6288]]
information regarding one offeror's proposal to other offerors without
consent of the offeror in accordance with FAR parts 3 and 24. (38
U.S.C. 8153)
(f) Award may be made on initial proposals without exchanges if the
solicitation states that the Government intends to evaluate proposals
and make award without exchanges, unless the contracting officer
determines that exchanges are considered necessary. (38 U.S.C. 8153)
873.114 Best value pool.
(a) Without regard to FAR 15.306(c), the contracting officer may
determine the most highly rated proposals having the greatest
likelihood of award based on the information or factors and subfactors
in the solicitation. These vendors constitute the best value pool. This
determination is within the sole discretion of the contracting officer.
Competitive range determinations are not applicable to acquisitions
under this part 873. (38 U.S.C. 8153)
(b) In planning an acquisition, the contracting officer may
determine that the number of proposals that would otherwise be included
in the best value pool is expected to exceed the number at which an
efficient, timely, and economical competition can be conducted. In
reaching such a conclusion, the contracting officer may consider such
factors as the results of market research, historical data from
previous acquisitions for similar services, and the resources available
to conduct the source selection. Provided the solicitation notifies
offerors that the best value pool can be limited for purposes of making
an efficient, timely, and economical award, the contracting officer may
limit the number of proposals in the best value pool to the greatest
number that will permit an efficient competition among the proposals
offering the greatest likelihood of award. The contracting officer may
indicate in the solicitation the estimate of the greatest number of
proposals that will be included in the best value pool. The contracting
officer may limit the best value pool to a single offeror. (38 U.S.C.
8153)
(c) If the contracting officer determines that an offeror's
proposal is no longer in the best value pool, the proposal shall no
longer be considered for award. Written notice of this decision must be
provided to unsuccessful offerors at the earliest practicable time. (38
U.S.C. 8153)
873.115 Proposal revisions.
(a) The contracting officer may request proposal revisions as often
as needed during the proposal evaluation process at any time prior to
award from vendors remaining in the best value pool. Proposal revisions
shall be submitted in writing. The contracting officer may establish a
common cutoff date for receipt of proposal revisions. Contracting
officers may request best and final offers n. In any case, contracting
officers and acquisition team members must safeguard all proposals and
revisions to avoid unfair dissemination of an offeror's proposal. (38
U.S.C. 8153)
(b) If an offeror initially included in the best value pool is no
longer considered to be among those most likely to receive award after
submission of proposal revisions and subsequent evaluation thereof, the
offeror may be eliminated from the best value pool without being
afforded an opportunity to submit further proposal revisions. (38
U.S.C. 8153)
(c) Requesting and/or receiving proposal revisions does not
necessarily conclude exchanges. However, requests for proposal
revisions should advise offerors that the Government may make award
without obtaining further revisions. (38 U.S.C. 8153)
873.116 Source selection decision.
(a) An integrated comparative assessment of proposals should be
performed before source selection is made. The SSA shall independently
determine which proposal(s) represents the best value, consistent with
the evaluation information or factors and subfactors in the
solicitation, and that the prices are fair and reasonable. The SSA may
determine that all proposals should be rejected if it is in the best
interest of the Government. (38 U.S.C. 8153)
(b) The source selection team, or advisory boards or panels, may
conduct comparative analysis(es) of proposals and make award
recommendations, if the SSA requests such assistance. (38 U.S.C. 8153)
(c) The source selection decision must be documented in accordance
with FAR 15.308. (38 U.S.C. 8153)
873.117 Award to successful offeror.
(a) The contracting officer shall award a contract to the
successful offeror by furnishing the contract or other notice of the
award to that offeror. (38 U.S.C. 8153)
(b) If a request for proposal (RFP) process was used for the
solicitation and if award is to be made without exchanges, the
contracting officer may award a contract without obtaining the
offeror's signature a second time. The offeror's signature on the offer
constitutes the offeror's agreement to be bound by the offer. If a
request for quotation (RFQ) process was used for the solicitation, and
if the contracting officer determines there is a need to establish a
binding contract prior to commencement of work, the contracting officer
should obtain the offeror's acceptance signature on the contract to
ensure formation of a binding contract. (38 U.S.C. 8153)
(c) If the award document includes information that is different
than the latest signed offer, both the offeror and the contracting
officer must sign the contract award. (38 U.S.C. 8153)
(d) When an award is made to an offeror for less than all of the
items that may be awarded and additional items are being withheld for
subsequent award, each notice shall state that the Government may make
subsequent awards on those additional items within the offer acceptance
period. (38 U.S.C. 8153)
873.118 Debriefings.
Offerors whose proposals are not accepted under a competitive
request for proposals (RFP) may submit a written request for a
debriefing to the contracting officer. Without regard to FAR 15.505,
preaward debriefings may be conducted by the contracting officer when
determined to be in the best interest of the Government. Post-award
debriefings shall be conducted in accordance with FAR 15.506. (38
U.S.C. 8153)
[FR Doc. 2020-29196 Filed 1-19-21; 8:45 am]
BILLING CODE 8320-01-P