[Federal Register Volume 86, Number 187 (Thursday, September 30, 2021)]
[Rules and Regulations]
[Pages 54111-54117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20926]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Part 806
RIN 2900-AQ21
VA Acquisition Regulation: Competition Requirements
AGENCY: Department of Veterans Affairs.
ACTION: 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revise or remove any policy superseded by changes in Federal
Acquisition Regulation (FAR), to move 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 Competition Requirements.
DATES: This rule is effective on November 1, 2021.
FOR FURTHER INFORMATION CONTACT: Mr. Rafael N. Taylor, Senior
Procurement Analyst, Procurement Policy and Warrant Management
Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382-
2787. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: These changes seek to align the VAAR with
the FAR, remove outdated and duplicative requirements, and reduce
burden on contractors. The VAAM incorporates portions of the removed
VAAR as well as other internal agency procedural guidance. VA will
rewrite certain parts of the VAAR and VAAM, and as VAAR parts are
rewritten, VA will publish them in the Federal Register.
On February 1, 2019, VA published a proposed rule in the Federal
Register (84 FR 1041) which announced VA's intent to amend regulations
for VAAR Case RIN 2900-AQ21--VA Acquisition Regulation: Competition
Requirements. 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 April 2, 2019, and VA received comments
from six respondents. This rule adopts as a final rule the proposed
rule published in the Federal Register on February 1, 2019, with the
exception of minor formatting/grammatical edits and a few non-
substantive edits, which are described below.
In particular, this final rule adds section 806.004-70, Definition,
to establish that as used in part 806,
[[Page 54112]]
``health-care resource(s)'' has the same definition as that provided in
VAAR 873.102.
This final rule adds subpart 806.1--Full and Open Competition, and
section 806.102, Use of competitive procedures, to address the
application of 38 U.S.C. 8127 to competitive General Services
Administration (GSA) and VA Federal Supply Schedules.
This rule also adds subpart 806.2--Full and Open Competition After
Exclusion of Sources, which contains two sections: 806.203, Set-asides
for small business concerns, which directs attention to subparts 819.5
and 819.70 for VA's policies on set-asides for small business concerns,
and 806.270, Set-asides for verified Veteran-owned small businesses.
This rulemaking, in section 806.270, sets forth VA's authority under
VA's supplement to FAR part 6--VAAR part 806, and the requirement
mandated by 38 U.S.C. 8127(d)--referred to as the VA Rule of Two, to
conduct set-asides for Veteran-owned small businesses whenever market
research provides the contracting officer with a reasonable expectation
of receiving two or more offers/quotes from eligible and verified
service-disabled veteran-owned small businesses (SDVOSBs) or veteran-
owned small businesses (VOSBs), and award can be made at a fair and
reasonable price that offers best value to the Government. This section
also states that the requirement to set aside procurements for Veteran-
owned small businesses applies to all contracts under this regulation,
including orders under interagency acquisition vehicles such as the
Federal Supply Schedules (FSS).
As a part of this rulemaking, subpart 806.3--Other Than Full and
Open Competition, is revised to add specific reference to VA's
authority for noncompetitive procedures for verified Veteran-owned
small businesses and to clarify existing authorities regarding such
noncompetitive procedures. The revised subpart also clarifies existing
statutory authority for other VA unique authorities and updates new
Title 41 citations and other specific citation requirements.
This final rule amends section 806.302, Circumstances permitting
other than full and open competition, to add several sections. This
rule also revises section 806.302-5, Authorized or required by statute,
to remove its text and retain the title. The removed text has been
revised and moved to section 806.302-571.
Under section 806.302-5, this final rule adds two sections:
806.302-570 and 806.302-571. Section 806.302-570, Noncompetitive
procedures for verified Veteran-owned small businesses, provides
coverage of the authority to enter into contracts non-competitively,
when specifically authorized under the VA Veterans First Contracting
Program in accordance with VAAR 819.7007 or 819.7008.
Section 806.302-571, Authorized or required by statute--VA unique
authorities, contains the statutes previously listed in 806.302-5 and
provides policy under the statutes to make awards by other than full
and open competition. Paragraph (a) provides the updated Title 41
authority--41 U.S.C. 3304(a)(5), updated from the moved coverage under
806.302-5. Paragraph (b)(1) provides that full and open competition is
not required for the acquisition of prosthetic appliances and services
based on the authority under 38 U.S.C. 8123. Paragraph (b)(2) provides
the existing policy for the acquisition of commercial health-care
resources, use of medical equipment or space, or research acquired from
an institution affiliated with VA under the authority set forth in 38
U.S.C. 8153(a)(3)(A). Paragraph (b)(3) includes policy for the
acquisition of commercial health-care resources, the use of medical
equipment or space from other than an affiliated institution, but only
when conducted in accordance with simplified procedures in VAAR part
873, Simplified Acquisition Procedures for Health-Care Resources, under
the authority set forth in 38 U.S.C. 8153(a)(3)(B). Paragraph (b)(4)
provides the authority under 38 U.S.C. 8153(a)(3)(C)-(D) for the sole
source acquisition of commercial health-care resources, the use of
medical equipment or space, when not acquired from an affiliated
institution in accordance with paragraph (b)(2).
Section 806.302-571, paragraph (c), requires that contracts awarded
using the authority set forth under paragraph (a), with the exception
of acquisitions authorized under paragraph (b)(2) of this section,
shall be supported by the written justifications and approvals
described in FAR 6.303 and 6.304.
Section 806.302-571, paragraph (d), incorporates an updated Title
41 citation reference: 41 U.S.C. 3304(a)(5); defines specific
authorities that permit VA to procure certain supplies and services as
sole source awards; and requires contracting officers, pursuant to FAR
6.302-5(c)(2)(ii), to comply with written justification and approval
requirements set forth in FAR 6.303 and 6.304, citing 41 U.S.C.
3304(a)(5) and the applicable statute. Specifically, section 806.302-
571(d) contains authorities previously under section 806.302-5 and
continues existing policy to allow VA to enter into contracts for the
cited types of supplies and services under this section.
This rulemaking removes section 806.302-7, Public interest, as it
provides internal procedural guidance not having a significant effect
beyond the internal operating procedures of the VA (see FAR 1.301(b))
and moves the coverage to the VAAM.
This final rule also removes section 806.304, Approval of the
justification, as it provides internal procedural guidance not having a
significant effect beyond the internal operating procedures of the VA
(see FAR 1.301(b)) and which will be moved to the VAAM.
The proposed rule revised subpart 806.5--Competition Advocates to
amend the title to ``Advocates for Competition'' to conform to the
revised title in FAR part 6. The proposed rule also revised section
806.501, Requirement, to identify the Deputy Senior Procurement
Executive as the VA Advocate for Competition. However, subsequent to
publication of the proposed rule, VA organizational changes resulted in
the need to update the title of who in VA is assigned the role of the
VA Advocate for Competition. This is now updated in this final rule as
described in item six in the Technical Non-Substantive Changes section
of the preamble.
This final rule removes section 806.570, Planning requirements, as
it provides internal procedural guidance not having a significant
effect beyond the internal operating procedures of the VA (see FAR
1.301(b)) and the coverage has been moved to the VAAM.
VA provided a 60-day comment period for the public to respond to
the proposed rule. As stated previously, VA received comments from six
respondents.
A summary of the comments and the issues raised are provided as
follows:
One commenter posted a general comment regarding advances in health
care in what appears to be part of an academic exercise. VA appreciates
the comment. As the comment does not specifically address issues with
the proposed rule, VA is making no revisions as a result of the
comment.
Another respondent suggests that moving items into the VAAM and
eliminating Information Letters (ILs) and various procedural guidance
is a positive move. They also note that the VAAM is a better
alternative than continued reliance on sub-agency procurement manuals.
VA appreciates the comment on the proposed rule. The VAAR/VAAM project
objective is to remove procedural guidance that is internal to VA and
move it into the VA
[[Page 54113]]
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 comment does not require the VA to
make any revisions to the proposed rule.
The third commenter submits that the Class Deviations and other
guidance issued by VA in response to the Supreme Court's decision in
Kingdomware Technologies, Inc. v. United States, 136 S. Ct. 1969
(2016), recognize that the Javits-Wagner-O'Day Act's (JWOD) mandatory
requirement to purchase from the Procurement List is capable of
coexisting with the VA Rule of Two. The commenter states that the
current guidance provides that the products and services on the
AbilityOne Procurement List are mandatory sources but the VA Rule of
Two is to be applied before adding new VA requirements to the
Procurement List. To avoid any doubt that the February 9, 2018, class
deviation is still in effect, the commenter urges the VA to clarify
that VAAR 806.270 does not supersede VAAR 808.002 or the February 9,
2018, class deviation.
VA appreciates the comments. The respondent's comments concerning
mandatory sources are appropriately addressed in the proposed rule
pertaining to VAAR part 808 and related clauses and provisions. Since
the rule (RIN 2900-AQ21) was published for public comment, new
legislation impacting AbilityOne was signed into law on August 8, 2020
(see further description regarding this below and the class deviation
to VAAR 808.002 issued on August 14, 2020, that addresses the priority
of the AbilityOne program in relation to the Veterans First Contracting
Program, with certain exceptions). As these comments do not pertain to
the language and text in this rule for VAAR part 806, VA is making no
changes based on these comments.
The fourth respondent also commented on this rule and its relation
to AbilityOne, supporting the primacy of JWOD as a mandatory source and
states that ``this section of the VAAR should also recognize that non-
mandatory source competition is not required where a mandatory source
applies, and that the JWOD, and other statutes, direct agencies to
purchase certain products and services from mandatory sources.'' The
commenter also recommends revising the part to recognize that specified
sources include the mandatory sources identified in FAR 8.002, 8.004,
and subpart 8.7.
While VA appreciates the feedback from the respondents on this
proposed rule, the Veterans First Contracting Program was updated as a
result of amendments to 38 U.S.C. 8127 by Public Law 116-155, the
Department of Veterans Affairs Contracting Preference Consistency Act
of 2020, signed August 8, 2020, which requires the use of mandatory
Government sources under the AbilityOne program for covered products
and services except for certain previously awarded contracts to
service-disabled veteran-owned small businesses (SDVOSBs) and veteran-
owned small businesses (VOSBs) after December 22, 2006, and in effect
August 7, 2020. This is implemented in VAAR 808.002(a)(1)(iv) and
(a)(2). VA originally issued a Class Deviation on August 14, 2020, to
make this change pending publication of a rule; this deviation was
rescinded and replaced with Class Deviation from VA Acquisition
Regulation part 808, Required Sources of Supplies and Services, dated
July 20, 2021. The priorities for use of mandatory Government sources
are covered by FAR part 8 and VAAR part 808, respectively. The language
as set forth in VAAR part 806 and specifically at VAAR 806.270 fully
comports with VA's requirements under VAAR part 808. VA will not revise
the final rule as a result of this comment. Note: VA is also planning
an interim rule which would include a pointer at subpart 819.5 back to
808.002(a)(1)(iv) and (a)(2) regarding the AbilityOne program to ensure
contracting officers and the public are reminded of the priority use of
the AbilityOne program as set forth in VAAR 808.002.
The next respondent had multiple comments and the VA will address
each in order. After first commending VA for its thoughtful development
of the proposed rule, the commenter recommends that VAAR 806.501 be
revised to include the actual list of Advocates for Competition. The
commenter also states that VAAR 806.501 could be further improved by
including a requirement to identify the cognizant SBA Procurement
Center Representative, the VA Ombudsman, and the VA Advocate for
Competition in each solicitation above the simplified acquisition
threshold.
VA has considered this suggestion but requiring each solicitation
or contract to include a list is beyond the requirements of FAR 6.501
that VA is implementing at VAAR 806.501. However, VA is making
available a complete list of VA procuring activity Advocates for
Competition on its website that will be available when the final rule
is published. Therefore, VA is making no changes to the proposed rule
as a result of this comment.
The next comment recommended revisions to VAAR 806.270;
specifically, that VAAR 806.270 be modified to exclude references to
Class Deviation provisions and that VA remove the reference to ``the VA
Rule of Two (see 802.101)'' from the final version of VAAR 806.270 as
the definition of ``VA Rule of Two'' was not added to VAAR 802.101 via
the required notice and public comment rulemaking process.
VA appreciates the comment and responds that the VA Rule of Two is
a term that is defined and incorporated into 802.101 under a Class
Deviation and it will be incorporated into part 802 as a part of a
future proposed rule. Nevertheless, to avoid any confusion, section
806.270 has been revised to remove the reference, ``see 802.101.''
The respondent also comments that the VAAR must fully implement the
Vets Act Priority for SDVOSBs first, and then VOSBs. The commenter
states VA should further explain how contracting officers give full
credit and partial credit for VOSBs and to address its use in Lowest
Priced Technically Acceptable (LPTA) procurements that do not permit
tradeoffs. They believe that a new provision should be added to VAAR
852.215-70.
VA appreciates the comments. The respondent's comments concerning
852.215-70 were appropriately addressed in the rule RIN 2900-AQ20
pertaining to VAAR part 815 and related clauses and provisions.
Therefore, as these comments do not pertain to the language and text in
this rule for VAAR part 806, VA is making no changes based on these
comments. However, VA is clarifying section 806.270 to make clear that
the statute's required set aside priorities are for SDVOSBs first, then
VOSBs by adding the words ``first, then . . .'' after ``(SDVOSBs)'',
and removing the word ``and'' so that it now reads, ``. . . verified
service-disabled Veteran-owned small businesses (SDVOSBs) first, then
Veteran-owned small businesses (VOSBs).'' This clarification is
consistent with 38 U.S.C. 8127.
The same respondent recommends the proposed rule should be revised
as a reference in the preamble of the proposed rule to additional
internal requirements is problematic in their opinion. When VA issues
the final rule, it should explain in the preamble that the only
requirements for a VA contracting officer to issue a sole source
contract under the Vets Act are as specified in the text of VAAR
806.302-570, and there are no unspecified agency procedures or class
deviations
[[Page 54114]]
that would restrict or water down this unique and important tool.
VA appreciates the opportunity to make clear the requirements of
this section and what is set forth in the preamble. VA's internal
procedures, including review and approval thresholds, are properly
contained in the VAAM as authorized by FAR 1.301(a)(2) which authorizes
an agency head to issue or authorize the issuance of internal agency
guidance. While 38 U.S.C. 8127(c) provides the authority for when
awards to such sole source concerns may be made, VA implements required
internal review and approval oversight procedures as necessary.
Therefore, VA makes no changes to the rule on the basis of these
comments.
The same commenter asserts that VA should provide Contracting
Officers guidance regarding what constitutes a fair and reasonable
price.
VA notes that guidance on how to conduct a price analysis and
establish a fair and reasonable price determination is already
addressed in the FAR. Specifically, FAR subpart 15.4, Contract Pricing,
provides guidance to contracting officers to assist in making a fair
and reasonable price determination. Additional internal agency guidance
would be contained in the VA Acquisition Manual. However, VA
acknowledges this is an area of interest for the public as well as VA's
acquisition workforce. VA is preparing additional internal training for
its acquisition workforce to strengthen contracting officers' skillset
in this area. VA is making no changes to the rule based on these
comments.
The same commenter recommends VA revise VAAR 806.302-570(a) to
state that the sole source contract shall be supported ``by the
applicable justification and approval requirements of FAR 6.302-
5(c)(2)(ii), 6.303, and 6.304.''
VA has considered the comment and concurs that the VA legislation
provides a unique sole source authority that is less restrictive than a
sole source award otherwise permitted under FAR 6.302-1, ``Only one
responsible source and no other supplies or services will satisfy
agency requirements.'' Accordingly, section 806.302-570(a) has been
revised to add the word ``applicable'' as noted in the amendatory
language with respect to the content of the justification requirements.
The next comment takes issue with the language ``without regard to
any other provision of law'' in VAAR 806.302-571(b)(1) and believes
that the other proposed sections of this rule may create confusion as
to whether this sole source authority trumps the Vets Act requirements
for VA to give priority to SDVOSBs and VOSBs in all VA contracts. They
go on to state, ``The sole source authorities cited in VAAR 806.302-571
do not trump the VA's obligations under the Vets Act. For example, 38
U.S.C. 8123 provides, permissively, that VA may procure prosthetic
appliances . . . without regard to any other provision of law.'' They
submit that by contrast, the Vets Act includes broader language that
mandates VA give priority to SDVOSBs and VOSBs.
VA does not concur with the respondent's assessment and will make
no change based on these comments. The legislative language provides VA
broad discretion in certain types of procurements ``without regard to
any other provision of law.''
The last respondent provides the following positive comments
regarding the proposed rule: ``. . . strongly supports the VA in their
efforts to create more flexibility in the contracting process as well
as efforts to reorganize the community care programs through the
MISSION Act of 2018.''
VA appreciates the comment. The comment does not require VA to make
any revisions to the proposed rule as the comments do not apply to this
rule.
Technical Non-Substantive Changes to the Proposed Rule
This rule makes six non-substantive changes to the proposed rule to
provide clarity, eliminate confusion, and to ensure compliance with
statute and VA's authority.
1. Under section 806.270, Set-asides for verified Veteran-owned
small businesses, VA has revised the language to remove the phrase
``including Governmentwide acquisition contracts (GWACs)'' as
unnecessary to set forth specifically further types of contract
vehicles.
2. Under section 806.302-571, Authorized or required by statute--VA
unique authorities, VA has revised the language in paragraph (b)(1) to
remove the phrase at the end of the subparagraph: ``as set forth in VA
directives governing prosthetic appliances, sensory aids and services
supporting the same . . .'' as unnecessary. VA contracting officers are
already required to follow VA directives and are internal operating
procedures.
3. Under section 806.302-571, paragraph (b)(2), VA is revising the
language to provide clarity by: Adding ``Acquisition of resources
from'' in the first sentence before ``medical practice groups'' and to
remove ``affiliated'' before ``institution affiliated with VA.''
4. Under section 806.302-571, at paragraph (b)(3), VA is removing
the phrase ``only if the procurement is conducted'' as too restrictive
to VA's procurement authority in various statutes and to ensure
clarity. In paragraph (b)(4), VA is revising the authority citation at
the end of the paragraph to add ``(D)'' at the end so that it now
reads: (38 U.S.C. 8153(a)(3)(C)-(D)).
5. Under section 806.302-571, paragraph (c), VA is making minor
grammatical edits to provide clarity by revising the first sentence so
that ``this authority'' now reads ``an authority'' and by adding the
words, ``in this section'' so that the intro to the sentence now reads:
``Contracts awarded using an authority in this section, . . .''.
6. Under subpart 806.5, Advocates for Competition, and the
underlying section 806.501, Requirement, the section is updated to
reflect a new organization role and title, to clarify the authority to
appoint an alternate agency advocate for competition, and add the
requirement to designate procuring activity advocates for competition
in accordance with FAR 6.501. The section has been updated to remove
the title of Deputy Senior Procurement Executive (DSPE) to reflect the
official organizational title of the Associate Executive Director,
Office of Procurement Policy, Systems and Oversight (AED/PPSO) and to
add ``for the agency'' after the phrase ``VA Advocate for
Competition.'' The delegated authority is clarified that the AED/PPSO
may further delegate the authority to appoint an alternate agency
advocate for competition, and to add ``shall designate procuring
activity advocates for competition in accordance with FAR 6.501.''
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
[[Page 54115]]
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 Secretary hereby certifies that this final rule will 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). 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 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 final 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 in 48 CFR Part 806
Government procurement.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on September 1, 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 forth in the preamble, VA revises 48 CFR part
806 to read as follows:
PART 806--COMPETITION REQUIREMENTS
Sec.
806.004-70 Definition.
Subpart 806.1--Full and Open Competition
806.102 Use of competitive procedures.
Subpart 806.2--Full and Open Competition After Exclusion of Sources
806.203 Set-asides for small business concerns.
806.270 Set-asides for verified Veteran-owned small businesses.
Subpart 806.3--Other Than Full and Open Competition
806.302 Circumstances permitting other than full and open
competition.
806.302-5 Authorized or required by statute.
806.302-570 Noncompetitive procedures for verified Veteran-owned
small businesses.
806.302-571 Authorized or required by statute--VA unique
authorities.
Subpart 806.5--Advocates for Competition
806.501 Requirement.
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C.
1303; 41 U.S.C. 1702; 41 U.S.C. 3304; and 48 CFR 1.301 through
1.304.
806.004-70 Definition.
As used in this part--
Health-care resources has the same definition as that provided in
873.102.
Subpart 806.1--Full and Open Competition
806.102 Use of competitive procedures.
(d)(3) Awards made using General Services Administration (GSA) or
Department of Veterans Affairs (VA) Federal Supply Schedules (FSS) are
considered competitive when awarded in accordance with the procedures
specified in FAR part 8 and this part.
Subpart 806.2--Full and Open Competition After Exclusion of Sources
806.203 Set-asides for small business concerns.
(c) Subparts 819.5 and 819.70 prescribe the policies and procedures
that shall be followed with respect to set-asides for small business
and Veteran-owned small business concerns.
806.270 Set-asides for verified Veteran-owned small businesses.
(a) To fulfill the statutory requirements relating to Public Law
109-461, the Veterans Benefits, Health Care and Information Technology
Act of 2006 (38 U.S.C. 8127-8128), contracting officers shall set aside
solicitations in accordance with subpart 819.70 and the VA Rule of Two
for Vendor Information Pages (VIP) verified service-disabled Veteran-
owned small businesses (SDVOSBs) first, then Veteran-owned small
businesses (VOSBs) (see 819.7005 and 819.7006). (38 U.S.C. 8127-8128)
(b) The requirement in this section to set aside procurements for
VIP verified SDVOSBs and VOSBs applies to all types of contracts,
including orders placed under GSA's Federal Supply Schedules (FSS) and
indefinite-delivery contracts. (38 U.S.C. 8127-8128)
Subpart 806.3--Other Than Full and Open Competition
806.302 Circumstances permitting other than full and open
competition.
806.302-5 Authorized or required by statute.
806.302-570 Noncompetitive procedures for verified Veteran-owned
small businesses.
(a) Sole source awards made to a verified SDVOSB or VOSB. Full and
open competition need not be provided for when awarding a sole source
[[Page 54116]]
contract under paragraph (b) or (c) of this section, to a verified
SDVOSB or VOSB in accordance with 819.7007 or 819.7008, respectively,
as authorized. Contracts awarded using the authority in this paragraph
(a) shall be supported by the applicable justification and approval
requirements of FAR 6.302-5(c)(2)(ii), 6.303, and 6.304.
(b) Sole source awards below the simplified acquisition threshold.
(Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 8127(b)). A
contracting officer may award a contract under the authority in this
paragraph (b) to a VIP verified SDVOSB first, then VOSB if no SDVOSBs
can fulfill the need, for an amount less than the simplified
acquisition threshold, using procedures other than full and open
competition. (38 U.S.C. 8127)
(c) Sole source awards above the simplified acquisition threshold.
(Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 8127(c)). A
contracting officer may award a contract to a VIP verified SDVOSB
first, then VOSB if no SDVOSB can satisfy the need, using procedures
other than full and open competition when--
(1) Such concern is determined to be a responsible source with
respect to performance of such contract opportunity;
(2) The anticipated award price of the contract (including options)
will exceed the simplified acquisition threshold, but will not exceed
$5 million; and
(3) Contract award can be made at a fair and reasonable price that
offers best value to the United States. (38 U.S.C. 8127)
806.302-571 Authorized or required by statute--VA unique authorities.
(a) Authority. (1) Citation: 41 U.S.C. 3304(a)(5). Contracting
officers shall also cite the specific authorities in paragraph (b) of
this section for the statutes related to the products and services
procured.
(2) Full and open competition need not be provided for when a
statute expressly authorizes or requires that the acquisition be made
through another agency or from a specified source.
(b) Application. The following products and services are authorized
to be acquired from a specified source:
(1) Prosthetic appliances and services. Contracting activities may
procure prosthetic appliances and necessary services required in the
fitting, supplying, and training and use of prosthetic appliances by
purchase, manufacture, contract, or in such other manner as determined
to be proper, without regard to any other provision of law. (38 U.S.C.
8123)
(2) Commercial health-care resources, the use of medical equipment
or space, or research, and acquired from an institution affiliated with
the Department of Veterans Affairs. Contracting activities may procure
health care resources, including resources from medical practice groups
and other approved entities associated with affiliated institutions,
blood banks, organ banks, or research centers from an institution
affiliated with VA in accordance with 38 U.S.C. 7302. Acquisition of
resources from medical practice groups and other entities shall be
approved when determined by the contracting activity to be legally
associated with affiliated institutions in accordance with 38 U.S.C.
7302. The justification and approval requirements of FAR 6.303 and
paragraph (c) of this section do not apply. (38 U.S.C. 8153(a)(3)(A))
(3) Commercial health-care resources, the use of medical equipment
or space, and is not to be acquired from an entity described in
paragraph (b)(2) of this section. Contracting activities may procure
health care resources from a non-affiliated institution in accordance
with the simplified procedures prescribed in part 873. The
justification and approval requirements of FAR 6.303 shall apply. (38
U.S.C. 8153(a)(3)(B))
(4) Commercial health-care resources, the use of medical equipment
or space, when not acquired from an affiliated institution described in
paragraph (b)(2) of this section and to be conducted on a sole source
basis. The authority in this paragraph (b)(4) applies if not acquired
from an affiliated institution in accordance with part 873. The
justification and approval requirements of FAR 6.303 shall apply. (38
U.S.C. 8153(a)(3)(C)-(D))
(c) Written justifications and approvals. Contracts awarded using
an authority in this section, with the exception of acquisitions
authorized under paragraph (b)(2) of this section, shall be supported
by the written justifications and approvals described in FAR 6.303 and
6.304.
(d) Citation of specific authorities. When a contracting officer
enters into a contract without providing full and open competition for
any of the following items or services, the contracting officer must
cite 41 U.S.C. 3304(a)(5) and the following authorities that apply, in
the written justifications and approvals as required by FAR 6.303 and
6.304:
(1) Contracts for scarce medical specialist services. (Citation: 41
U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 7409.) Contracting
officers may enter into contracts with:
(i) Schools and colleges of medicine, osteopathy, dentistry,
podiatry, optometry, and nursing;
(ii) Clinics; and
(iii) Any other group or individual capable of furnishing such
scarce medical specialist services at VA facilities, to include the
services of physicians, dentists, podiatrists, optometrists,
chiropractors, nurses, physician assistants, expanded-function dental
auxiliaries, technicians, and other medical support personnel. (38
U.S.C. 7409)
(2) Contracts or agreements to purchase or sell merchandise,
equipment, fixtures, supplies and services for the operation of the
Veterans Canteen Service. (Citation: 41 U.S.C. 3304(a)(5), as
authorized by 38 U.S.C. 7802(f).) Contracts or agreements may be
entered into without regard to 41 U.S.C. 6101(b) through (d).
(3) Contracts or leases for the operation of parking facilities
established under authority of 38 U.S.C. 8109(b). (Citation: 41 U.S.C.
3304(a)(5), as authorized by 38 U.S.C. 8109(f).) Contracts or leases
may be entered into provided that the establishment, operation, and
maintenance of such facilities have been authorized by the Secretary or
designee.
(4) Contracts for laundry and other common services, such as the
purchase of steam, negotiated with non-profit, tax-exempt educational,
medical, or community institutions. (Citation: 41 U.S.C. 3304(a)(5), as
authorized by 38 U.S.C. 8122(c).) Contracts may be entered into when
specifically approved by the Secretary or designee and when such
services are not reasonably available from private commercial sources.
(5) Contracts or agreements with private or public agencies or
persons for translator services. (Citation: 41 U.S.C. 3304(a)(5), as
authorized by 38 U.S.C. 513.)
Subpart 806.5--Advocates for Competition
806.501 Requirement.
The Associate Executive Director, Office of Procurement Policy,
Systems and Oversight (AED, PPSO) is designated as the VA Advocate for
Competition for the agency. The AED, PPSO may further delegate the
authority in this section to appoint an alternate agency advocate for
competition and shall designate procuring activity advocates for
competition in accordance with FAR 6.501. A complete list of VA
procuring activity advocates for competition can be found at https://
[[Page 54117]]
www.va.gov/oal/business/pps/competition-advocates.asp.
[FR Doc. 2021-20926 Filed 9-29-21; 8:45 am]
BILLING CODE 8320-01-P