[Federal Register Volume 86, Number 187 (Thursday, September 30, 2021)]
[Rules and Regulations]
[Pages 54117-54123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20922]


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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending and 
updating 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revise or remove any policy superseded by changes in the Federal 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. 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: This rule is effective on November 1, 2021.

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) 894-0686. (This is not a 
toll-free number.)

SUPPLEMENTARY INFORMATION: 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the VAAR with the FAR and remove outdated and duplicative requirements 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.
    On January 21,2021, VA published a proposed rule in the Federal 
Register (85 FR 35238) which announced VA's intent to amend regulations 
for VAAR Case RIN 2900-AQ78--Simplified Procedures for Health-Care 
Resources. VA provided a 60-day comment period for the public to 
respond to the proposed rule and submit comments. The comment period 
for the proposed rule ended on March 22, 2021, and VA received comments 
from three respondents. This rule adopts as a final rule the proposed 
rule published in the Federal Register on January 21, 2021, with the 
exception of minor formatting edits.
    VA received three comments from the public. Two commenters 
expressed support for the rule--with one of the respondents stating 
that the streamlined procedures will help Veterans and the other 
respondent expressing the opinion that amending the VAAR by removing 
outdated and superseded information would allow for a more concise 
understanding of the regulation. VA appreciates this feedback. As a 
result of these comments, no changes have been made to the rule.
    The third respondent commented on the rules' coverage at 873.104, 
Competition requirements, permitting VA to contract on a sole source 
basis with affiliated institutions for commercial health-care 
resources. In particular, the respondent expressed their view that a 
sole source justification should be published and that competitive 
proposals should be considered.
    VA appreciates the feedback. This comment pertains to a specific 
statutory exception provided by Congress for VA to be able to contract 
with affiliated institutions in accordance with 38 U.S.C. 7302, on a 
sole source basis as provided by 38 U.S.C. 8153(a)(3)(A), without 
publication of a justification for health-care resources. VA policy 
encourages competition where appropriate. When sole source acquisitions 
are necessary to meet critical mission needs, justification and 
approvals are publicized as required in accordance with law and 
regulation. However, as 38 U.S.C. 8153 expressly provides this unique 
exception for VA's work with affiliated institutions to provide 
Veteran's critical healthcare, no revisions will be made to the 
proposed rule.

Executive Orders 12866 and 13563

    Executive Orders (EOs) 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). Executive Order 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. The Regulatory Impact Analysis associated with this rulemaking 
can be found as a supporting document at www.regulations.gov.

Paperwork Reduction Act

    This final 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 rule primarily affects the use of authorities that VA 
contracting officers are already authorized by statute to utilize when 
required and in accordance with existing agency regulation, policies 
and procedures. This rule appropriately clarifies and revises the use 
of such authorities and when certain justification and approval 
requirements apply. The authorities were previously codified in the 
VAAR either in this part or in other parts, to include those affecting 
small business programs, and they affected both large and small 
entities alike. With this rule, VA ensures content to supplement the 
FAR for VA's unique service-disabled veteran-owned small business and 
veteran-owned small business program is properly implemented in this 
part.
    The overall impact of the rule is 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 processes or procedures. This rule will 
ensure clarity for both the public and VA contracting officers to 
ensure that when such authorities are utilized, they are properly cited 
and, when required, appropriately documented and publicized. This 
rulemaking does not change VA's policy regarding small businesses. VA 
estimates that no cost or economic impact to individual businesses will 
result from this rule update. VA estimates this final rule is not 
expected to result in increased or decreased costs to small business 
entities, and no more than de minimis costs. On this basis, the final 
rule does 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, 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

[[Page 54118]]

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

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects

48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 873

    Government procurement.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on August 24, 2021, 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.

Luvenia Potts,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA amends 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 through 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 (Nov 2021)

    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 (Nov 2021)

    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 (Nov 2021)

    (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 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 (Nov 2021)

    (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 offer, shall result in a binding 
contract without further action by either party. Before the offer's 
specified expiration time, the Government may accept an offer (or 
part of an offer), 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 (Nov 2021)

    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:

[[Page 54119]]

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 through 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. The procedures in this part shall be used in 
conjunction with the Federal Acquisition Regulation (FAR) and other 
parts of the VA Acquisition Regulation (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 38 
U.S.C. 1782 and 1783) any other health-care service, and any health-
care support or administrative resource. (38 U.S.C. 8153))


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 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 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 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 808.002(a)(2) and 873.107, Socioeconomic programs, and 
a VA Rule of Two determination (819.502-2). 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

[[Page 54120]]

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);
    (11) Use of the System for Award Management (SAM) (see http://www.sam.gov/); and
    (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 complete copy of the 
request for quotation (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 VA 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 the procedures in this part must 
prominently identify that the requirement is being solicited under the 
authority of 38 U.S.C. 8153 and this part. (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. (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

[[Page 54121]]

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 FAR provision 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 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:

[[Page 54122]]

    (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. (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 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)

[[Page 54123]]

    (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. 2021-20922 Filed 9-29-21; 8:45 am]
BILLING CODE 8320-01-P