[Federal Register Volume 86, Number 188 (Friday, October 1, 2021)]
[Rules and Regulations]
[Pages 54405-54407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20891]



48 CFR Parts 852 and 871

RIN 2900-AQ76

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

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


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revise or remove any policy superseded by changes in the Federal 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 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 Loan Guaranty and Vocational Rehabilitation and 
Employment Programs, as well as an affected part concerning 
Solicitation Provisions and Contract Clauses.

DATES: This rule is effective on November 1, 2021.

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.)



    On June 30, 2020, VA published a proposed rule in the Federal 
Register (85 FR 39151) which announced VA's intent to amend regulations 
for VAAR Case RIN 2900-AQ76 (parts 852 and 871). 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 
August 31, 2020, and VA received no comments. This rule adopts as a 
final rule, with two technical non-substantive changes to the proposed 
rule published in the Federal Register on June 30, 2020.
    These changes seek to 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outdated and duplicative requirements and reduce burden on contractors.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.

Technical Non-Substantive Changes to the Proposed Rule

    VA is removing proposed section 871.209, Records and reports. VA 
has determined this section is unnecessary and no information 
collection requirements are required under subpart 871.2. Any records 
and reports requirements related to Veterans training are captured 
under other existing Veterans Benefits Administration policy and 
information collection requirements unrelated to this text or are 
covered by standard record keeping requirements and retention periods 
as set forth in FAR subpart 4.7. Accordingly, VA has renumbered the 
remaining proposed sections to 871.209, Prohibition on advertising--
training of Veterans (from 871.209), and 871.210, Contract clauses 
(from 871.211), a result of this removal.
    VA has updated the Table of Contents in subpart 817.2 to reflect 
the above removals and renumbering.

Executive Orders 12866 and 13563

    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. 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) that require approval by the Office of Management and Budget 

[[Page 54406]]

Regulatory Flexibility Act

    The Secretary hereby certifies that this final 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 final 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 as they 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 would 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 871

    Government procurement, Vocational rehabilitation and employment.

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 871 as follows:


1. The authority citation for part 852 continues to read as follows:

    Authority: 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 
41 U.S.C. 1121(c)(3), 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 
1.301 through 1.304.

2. Revise sections 852.271-72, 852.271-73, and 852.271-74 to read as 

852.271-72  Time Spent by Counselee in Counseling Process.

    As prescribed in 871.211, insert the following clause:

Time Spent by Counselee in Counseling Process (Nov 2021)

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

(End of clause)

852.271-73   Use and Publication of Counseling Results.

    As prescribed in 871.211, insert the following clause:

Use and Publication of Counseling Results (Nov 2021)

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

(End of clause)

852.271-74   Inspection of Instruction, Counseling or Testing 

    As prescribed in 871.211, insert the following clause:

Inspection of Instruction, Counseling or Testing Operations (Nov 2021)

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

(End of clause)

852.271-75  [Removed and Reserved]

3. Remove and reserve section 852.271-75.

4. Part 871 is revised to read as follows:


Subpart 871.1 [Reserved]
Subpart 871.2--Vocational Rehabilitation and Employment Service

871.200  Scope of subpart.

871.201  General.

871.201-1  Requirements for the use of contracts.

871.205  Proration of charges.

871.206  Other fees and charges.

871.207  Payment of tuition or fees.

871.208  Rehabilitation facilities.

871.209  Prohibition on advertising--training of Veterans.

871.210  Contract clauses.

    Authority:  38 U.S.C. chapter 31; 40 U.S.C. 121(c); 41 U.S.C. 
1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

Subpart 871.1--[Reserved]

Subpart 871.2--Vocational Rehabilitation and Employment Service

871.200   Scope of subpart.

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

871.201   General.

871.201-1   Requirements for the use of contracts.

    The costs for tuition, fees, books, supplies, and other expenses 

[[Page 54407]]

allowable under a contract with an institution, training establishment, 
or employer for the training and rehabilitation of eligible Veterans 
under 38 U.S.C. chapter 31, provided the services meet the conditions 
in the following definitions:
    (a) Courses of instruction by correspondence means a course of 
education or training conducted by mail consisting of regular lessons 
or reading assignments, the preparation of required written work that 
involves the application of principles studied in each lesson, the 
correction of assigned work with such suggestions or recommendation as 
may be necessary to instruct the student, the keeping of student 
achievement records, and issuance of a diploma, certificate, or other 
evidence to the student upon satisfactorily completing the requirements 
of the course.
    (b) Special services or special courses means those services or 
courses that VA requests that are supplementary to those the 
institution customarily provides for similarly circumstanced non-
Veteran students and that the contracting officer considers to be 
necessary for the rehabilitation of the trainee.

871.205   Proration of charges.

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

871.206   Other fees and charges.

    VA may pay fees and other charges that are not prescribed by law 
but are required by nongovernmental organizations, such as initiation 
fees required to become a member of a labor union and the dues 
necessary to maintain membership incidental to training on the job or 
to obtaining employment during a period in which the Veteran is a 
participant pursuant to 38 U.S.C. chapter 31, provided there are no 
facilities feasibly available where the necessary training can be 
feasibly accomplished or employment obtained without paying such 
charges. Payment for such fees must be made in accordance with part 

871.207   Payment of tuition or fees.

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

871.208   Rehabilitation facilities.

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

871.209  Prohibition on advertising--training of Veterans.

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

871.210   Contract clauses.

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

[FR Doc. 2021-20891 Filed 9-30-21; 8:45 am]