[Federal Register Volume 87, Number 46 (Wednesday, March 9, 2022)]
[Proposed Rules]
[Pages 13598-13624]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03677]
[[Page 13597]]
Vol. 87
Wednesday,
No. 46
March 9, 2022
Part V
Department of Veterans Affairs
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48 CFR Parts 802, 807, 808, et al.
VA Acquisition Regulation: Acquisition Planning; Required Sources of
Supplies and Services; Market Research; and Small Business Programs;
Proposed Rule
Federal Register / Vol. 87 , No. 46 / Wednesday, March 9, 2022 /
Proposed Rules
[[Page 13598]]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 802, 807, 808, 810, 813, 819, 832, 852, and 853
RIN 2900-AR06
VA Acquisition Regulation: Acquisition Planning; Required Sources
of Supplies and Services; Market Research; and Small Business Programs
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
and update its VA Acquisition Regulation (VAAR) in phased increments to
revise or remove any policy superseded by changes in the Federal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
coverage concerning Acquisition Planning, Required Sources of Supplies
and Services, Market Research, and Small Business Programs, as well as
affected parts to include Definitions of Words and Terms, Simplified
Acquisition Procedures, Contract Financing, Solicitation Provisions and
Contract Clauses, and Forms.
DATES: Comments must be received on or before May 9, 2022 to be
considered in the formulation of the final rule.
ADDRESSES: Comments may be submitted through www.Regulations.gov.
Comments received will be available at regulations.gov for public
viewing, inspection, or copies.
FOR FURTHER INFORMATION CONTACT: Mr. Rafael Taylor, Senior Procurement
Analyst, Procurement Policy and Warrant Management Services, 003A2A,
810 Vermont Avenue NW, Washington, DC 20420, (202) 714-8560. (This is
not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION:
Background
This rulemaking is issued under the authority of the Office of
Federal Procurement Policy (OFPP) Act which provides the authority for
an agency head to issue agency acquisition regulations that implement
or supplement the FAR.
VA is proposing to revise the VAAR to add new policy or regulatory
requirements and to remove any redundant guidance and guidance that is
applicable only to VA's internal operating processes or procedures.
Codified acquisition regulations may be amended and revised only
through rulemaking. All amendments, revisions, and removals have been
reviewed and concurred with by VA's Integrated Product Team of agency
stakeholders.
The VAAR uses the regulatory structure and arrangement of the FAR
and headings and subject areas are consistent with FAR content. The
VAAR is divided into subchapters, parts (each of which covers a
separate aspect of acquisition), subparts, and sections.
The Office of Federal Procurement Policy Act, as codified in 41
U.S.C. 1707, provides the authority for the Federal Acquisition
Regulation and for the issuance of agency acquisition regulations
consistent with the FAR.
When Federal agencies acquire supplies and services using
appropriated funds, the purchase is governed by the FAR, set forth at
Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through
53, and the agency regulations that implement and supplement the FAR.
The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873.
Discussion and Analysis
VA proposes to make the following changes to the VAAR in this phase
of its revision and streamlining initiative. For procedural guidance
cited below that is proposed to be deleted from the VAAR, each section
cited for removal has been considered for inclusion in VA's internal
agency operating procedures in accordance with FAR 1.301(a)(2).
Similarly, delegations of authorities that are removed from the VAAR
will be included in the VA Acquisition Manual (VAAM) as internal agency
guidance. These changes seek to streamline and 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 draft new internal VAAM parts, and as VAAR parts
are rewritten, will publish them in the Federal Register. VA will
combine related topics, as appropriate. The VAAM is being created in
parallel with these revisions to the VAAR and is not subject to the
rulemaking process as they are internal VA procedures and guidance.
Therefore, the VAAM will not be finalized until corresponding VAAR
parts are finalized, and the corresponding VAAM parts or sections
related to this rule is not yet available online.
VAAR Part 802--Definition of Words and Terms
We propose to revise the authority citation by removing the dash in
48 CFR 1.301-1.305 and adding the word, ``through.''
In 802.101 we propose adding four new definitions and revising
three existing definitions as discussed below. We propose adding the
following definitions:
Public Law (Pub. L. 109-461) means the Veterans Benefits, Health
Care and Information Technology Act of 2006, as codified in 38 U.S.C.
8127 and 8128, which authorizes the Veterans First Contracting Program.
SDVOSB/VOSB when used as an initialism means a service-disabled
veteran-owned small business (SDVOSB) and/or veteran-owned small
business (VOSB) that has been found by VA eligible to participate in
the Veterans First Contracting Program implemented at subpart 819.70
and listed in the Vendor Information Pages. The term is synonymous with
VA or VIP verified small business concerns owned and controlled by
Veterans.
VA Rule of Two means the determination process mandated in 38
U.S.C. 8127(d)(1) whereby a contracting officer of the Department shall
award contracts on the basis of competition restricted to small
business concerns owned and controlled by Veterans if the contracting
officer has a reasonable expectation that two or more 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. For purposes of this VA specific rule, a
service-disabled veteran-owned small business (SDVOSB) or a veteran-
owned small business (VOSB), must meet the eligibility requirements in
38 U.S.C. 8127(e), (f) and VAAR 819.7003 and be listed as verified in
the Vendor Information Pages (VIP) database maintained by the VA Office
of Small and Disadvantaged Business Utilization (OSDBU), Center for
Verification and Evaluation (CVE). It is distinguished from the FAR
part 19 ``Rule of Two'' contracting determination requirement for
general small business set-asides.
Veterans First Contracting Program (VFCP) means the program
authorized by Public Law 109-461 (38 U.S.C. 8127 and 8128), as
implemented in subpart 819.70. This program applies to all VA contracts
(see FAR 2.101 for the definition of contracts) including orders
against Blanket Purchase Agreements (BPAs), Basic Ordering Agreements
(BOAs), and orders against the Federal
[[Page 13599]]
Supply Schedules (FSS), unless otherwise excluded by law.
In 802.101 we propose revising the following three definitions that
already exist in the VAAR:
Service-disabled veteran-owned small business (SDVOSB)--the
definition remains substantially the same as a service-disabled
veteran-owned small business concern defined in FAR 2.101, except that
for acquisitions authorized by 38 U.S.C. 8127 and 8128 for the Veterans
First Contracting Program, these businesses must be listed as verified
in the VIP database. In addition, some SDVOSBs listed in the VIP
database may be owned and controlled by a surviving spouse. See
definition of surviving spouse in 802.101.
Vendor Information Pages (VIP) database--this expands the
definition currently in the VAAR, indicating that the VA Office of
Small and Disadvantaged Business Utilization (OSDBU) office, through
its Center for Verification and Evaluation (CVE), is responsible for
maintaining the SDVOSB/VOSB list, and provides an updated website
address for the database: https://www.vetbiz.va.gov/vip/ vip/. This site's
database lists businesses that VA CVE has verified and determined
eligible for the Veterans First Contracting Program.
Veteran-owned small business (VOSB)--the definition remains
substantially the same as a veteran-owned small business concern
defined in FAR 2.101, except that for acquisitions authorized by 38
U.S.C. 8127 and 8128 for the Veterans First Contracting Program, these
businesses must be listed as verified in the VIP database. SDVOSBs,
including businesses whose SDVOSB status derive from ownership and
control by a surviving spouse, are also considered VOSB, as long as
they are listed as eligible in VIP.
VAAR Part 807--Acquisition Planning
We propose removing the entirety of part 807--Acquisition Planning,
including subpart 807.1--Acquisition Plans, and 807.103, Agency-head
responsibilities. This identifies internal procedures of VA that do not
have a significant effect beyond the internal operating procedures of
the VA (see FAR 1.301(b)). The information in this section will be
moved to the VAAM.
We propose removing subpart 807.3--Contractor Versus Government
Performance, and 807.300, Scope of subpart, and 807.304-77, Right of
first refusal. This addresses contracting for commercial services under
OMB A-76 and VA's cost comparison process. It is proposed for removal
because the material is outdated. The clause was used in conjunction
with OMB Circular A-76, Performance of Commercial Activities or with
VA's cost comparison process. The VA Directive that implemented VA's
cost comparison process, VA Directive 7100, Competitive Sourcing, has
been rescinded, which renders the guidance in this subpart and the
clause obsolete. VA does not currently have policy guidance in place
that supplements the OMB Circular A-76. Current FAR coverage is
sufficient pending any changes to the program via the FAR or OMB
directives.
VAAR Part 808--Required Sources of Supplies and Services
We propose revising the authority citations pertaining to part 808
to standardize how it is referenced in other VAAR parts. The authority,
which now reads ``38 U.S.C. 8127 and 8128'' would be changed to read:
``38 U.S.C. 8127-8128.''
We propose removing reference to paragraph (d) in the 40 U.S.C. 121
citation because it is unnecessary; only paragraph (c) will be
reflected. This comports with the FAR. 40 U.S.C. 121(c) provides that
the Administrator of the General Services Administration may prescribe
regulations to carry out responsibilities under the Federal Property
and Administrative Services subtitle of Title 40, and, additionally,
that the head of each executive agency shall issue orders and
directives that the agency head considers necessary to carry out the
prescribed regulations issued by the Administrator. The VAAR, which
supplements and implements the FAR, and its internal operational
procedures, is a part of the orders and directives as authorized under
this authority.
We propose including a reference to Title 41 U.S.C. 1121(c)(3),
which speaks to the authority of an executive agency under another law
to prescribe policies, regulations, procedures, and forms for
procurement that are subject to the authority conferred in the cited
section, as well as other sections of Title 41 as shown therein.
And finally, we also propose revising the part 808 authorities to
add 41 U.S.C. 1702, which addresses overall direction of procurement
policy, acquisition planning and management responsibilities of VA's
Chief Acquisition Officer. We are removing the dash in 48 CFR 1.301-
1.304 and adding the word ``through.'' Any other proposed changes to
authorities are shown under the individual parts as described in the
preamble.
We propose adding 808.000, Scope of part, to clarify that the part
deals with prioritizing sources of supplies and services for use by the
Government based on unique VA statutory programs, as well as use of the
General Services Administration (GSA) Federal Supply Schedules program
including the GSA delegated VA Federal Supply Schedule program.
We propose adding 808.001, General, with no text as a header, and
section 808.001-70, Definitions, to provide a definition for the
Veterans Affairs Federal Supply Schedule (``VA FSS''). The definition
of VA Federal Supply Schedule was added because ``VA FSS'' is used
throughout part 808.
We propose revising 808.002 to implement the requirements of the
Department of Veterans Affairs Contracting Preference Consistency Act
of 2020 (the Act), Pubic Law 116-155, amending 38 U.S.C. 8127, which
became effective on August 8, 2020. In summary, the legislation
requires a contracting officer of the Department to procure covered
products and services on the Procurement List maintained by the
Committee for Purchase from People Who Are Blind or Severely Disabled
(the Committee), from a qualified nonprofit agency for the blind or by
a qualified nonprofit agency for other severely disabled, as required
by 41 U.S.C. chapter 85 and associated regulations prescribed under
that chapter. This is referred to as the AbilityOne program. This
requirement shall not apply in the case of a covered product or service
for which a contract was awarded to an SDVOSB/VOSB under the authority
of 38 U.S.C. 8127(d)(1) using restricted competition after December 22,
2006 and in effect on the day before the enactment of the Act, i.e.,
August 7, 2020. In such case, these covered products and services shall
continue under VA's unique SDVOSB/VOSB set-aside program using
restricted competition as provided in VAAR 819.7006 and 819.7007. When
these SDVOSB/VOSB contracts are terminated or expire, the Secretary, as
delegated to the Head of the Contracting Activity or designee, is
required to make a determination that the VA Rule of Two cannot be met
before the requirement can be procured under the AbilityOne program.
The legislation provides a definition of covered products and services
and an exception which the VA implemented through Class Deviation from
VA Acquisition Regulation Part 808, Required Sources of Supplies and
Services, approved on July 20, 2021.
We propose revising VAAR 808.002 to comport with changes to FAR
8.002 based on FAC 2005-72, December 31, 2013, effective January 30,
2014 and reflects VA's implementation of FAR
[[Page 13600]]
8.002. The FAR final rule amended FAR part 8 to clarify that use of
General Services Administration (GSA) Federal Supply Schedules (FSS) is
not mandatory.
With this proposed rule, the VA is amending VAAR section 808.002 to
set forth conforming amendments to its acquisition regulation as the
result of legislation which requires contracting officers to give
priority in the award of covered products and services under the
AbilityOne program along with considering the requirements of the
Veterans First Contracting Program set forth in subpart 819.70 as
further described below. VA is also implementing related technical
amendments as set forth below including adding citation references back
to 808.002 in VAAR part 819.
In general, we propose amending section 808.002, by adding
paragraph (a) and (b) and removing paragraph (c). Paragraph (a) would
state that contracting activities shall satisfy requirements for
supplies and services from or through the mandatory sources listed in
descending order of priority and aligns with FAR 8.002. Under (a)(1)
and the underlying subparagraphs, the priorities for Supplies are
established as--
VA inventories including the VA supply stock program and
VA excess.
Excess from other agencies.
Federal Prison Industries, Inc.
Supplies that are on the Procurement List maintained by
the Committee for Purchase From People Who Are Blind or Severely
Disabled, through the AbilityOne Program (FAR subpart 8.7).
Wholesale supply sources, such as stock programs of the
General Services Administration (GSA) (see 41 CFR 101-26.3), the
Defense Logistics Agency (see 41 CFR 101-26.6), the Department of
Veterans Affairs (see 41 CFR 101-26.704), and military inventory
control points.
Under paragraph (a)(2), the priority is established for Services
that are on the Procurement List maintained by the Committee for
Purchase From People Who Are Blind or Severely Disabled, through the
AbilityOne Program (FAR subpart 8.7).
In 808.002, Priorities for use of mandatory Government sources, in
order to implement the new Act, we added paragraphs (a)(1)(iv) and
(a)(2) to reflect the new legislative mandate concerning products and
services that are on the Procurement List maintained by the Committee
for Purchase From People Who Are Blind or Severely Disabled, required
to be procured through the AbilityOne Program, to:
Add definitions for a ``covered product'' or ``covered
service'' which means a product or service that is included on the
Procurement List prescribed under FAR 8.002 and was included on such
procurement list on or before December 22, 2006, or is a product or
service that is a replacement for a product or service and that
essentially meets the same requirement as the product or service being
replaced; and the contracting officer determines such product or
service meets the quality standards and delivery schedule requirements
of VA.
Establish AbilityOne as a priority mandatory Government
source within certain limitations applicable to the Veterans First
Contracting Program and to require that contracting officers shall
procure a covered product or service that is on the Procurement List
through the AbilityOne Program as set forth in VAAR 808.002(a)(1)(iv)
and (a)(2), respectively, with one exception.
Identify the exception for covered products or services
previously awarded to SDVOSBs/VOSBs. Specifically, if a product or
service contract action was previously awarded under 38 U.S.C. 8127 to
a VIP-listed SDVOSB or VOSB after December 22, 2006 and in effect on
the day before the enactment of the Act, i.e., August 7, 2020, the
requirement shall continue to be procured as a SDVOSB/VOSB set-aside
provided the contracting officer made a VA Rule of Two determination in
accordance with 38 U.S.C. 8127(d)(1) and subpart 819.70.
Restore AbilityOne as a priority mandatory source for
covered products and services on the Procurement List on certain
previously awarded SDVOSB/VOSB contracts if the VA Rule of Two is not
met. Specifically, section 808.002 would require that, in the event the
conditions of the exception are satisfied at the termination or
expiration of a contract for covered products or services previously
awarded under 38 U.S.C. 8127(d)(1) to SDVOSBs or VOSBs, AbilityOne
remains a priority mandatory Government source. This requires a
determination, which the Secretary delegates to the Head of the
Contracting Activity or designee, that there is not a reasonable
expectation that two or more SDVOSBs/VOSBs will submit offers and that
award can be made at a fair and reasonable price that offers best value
to the United States.
We also propose removing 808.002, paragraph (c), Eligible
beneficiaries, because internal procedures are more appropriately
located in the VAAM. We propose adding paragraph (b), Unusual and
compelling urgency, to comport with the FAR. The contracting officer
may use a source other than those listed in 808.002, paragraph (a) when
the need for supplies or services is of an unusual and compelling
urgency. We added in a reference to FAR 6.302-2, 8.405-6, 13.106-1 and
VAAR part 806 for justification requirements.
We propose adding 808.004, Use of other sources, and 808.004-70,
Use of other priority sources. This provides that contracting officers
shall award contracts, Blanket Purchase Agreements (BPAs), and orders
against VA and GSA Federal Supply Schedules (FSS), providing priority
in the awarding of such contracts, agreements, and orders to VIP-listed
SDVOSBs first, then VOSBs. This section also sets policy for VA
strategic sourcing priorities and application of the VA Rule of Two. To
provide medical supplies in Federal Supply Classification (FSC) groups
65 and 66 efficiently and effectively the VA, through previous reform
initiatives, has implemented key strategic sourcing contract vehicles
(e.g., prime-vendor, national contracts, VA FSS). If these strategic
sourcing contracts were subject to the VA Rule of Two, they may be
determined mandatory by the head of the contracting activity.
Contracting officers shall consider these priority contract vehicles
before using other existing contract vehicles. This comports with FAR
8.002 which encourages agencies to consider satisfying requirements
from or through non-mandatory sources. VA balances this requirement
carefully with the consideration of VA-specific strategic sourcing
vehicles that permit VA to more effectively and efficiently meet its
mission for those FSC groups delegated by GSA to VA--FSC Group 65 and
66 for supplies, and FSC Group 621, for medical services, in addition
to those other strategic sourcing vehicles supporting this core VA
mission.
In subpart 808.4, Federal Supply Schedules:
We propose revising 808.402, General, to identify the GSA
delegation to VA implementing FAR 8.402(a), whereby GSA has delegated
authority to the VA to procure medical equipment, supplies, services,
and pharmaceuticals under the VA Federal Supply Schedule (FSS) program.
The VA FSS program includes medical supplies in Federal Supply
Classification (FSC) Groups 65 and 66 and services in FSC 621 for
Professional and Allied Healthcare Staffing Services and Medical
Laboratory Testing and Analysis Services. We propose to remove outdated
FSC groups that are no longer delegated.
We propose adding 808.404, Use of Federal Supply Schedules, and
808.404-70, Use of Federal Supply Schedules--the Veterans First
[[Page 13601]]
Contracting Program. Contracting officers, when establishing a BPA or
placing an order against the FSS, shall ensure that priorities for
Veteran-owned small businesses are implemented within the VA hierarchy
of small business program preferences in subpart 819.70. Specifically,
the contracting officer must consider preferences for verified SDVOSBs
first, then preferences for verified VOSBs. These priorities are
followed by preferences for other small businesses in accordance with
819.7005. This also supplements FAR 8.404 and provides that if
contracting officers are unable to satisfy requirements for supplies
and services from the mandatory sources in 808.002 and 808.004-70, they
may consider commercial sources in the open market (see FAR 8.004(b))
if an open market acquisition is most appropriate (see FAR 8.004) and a
VA Rule of Two determination is made (see subpart 819.70). This section
also requires that when the servicing agency will award contracts under
an interagency agreement on behalf of the VA, the contracting officer
shall ensure the interagency acquisition complies with FAR subpart 17.5
and VAAR subpart 817.5, and includes terms requiring compliance with
the VA Rule of Two, to the maximum extent feasible--see VAAR subpart
817.5.
We propose removing 808.405-2, Ordering procedure for services
requiring a statement of work as the language is outdated.
We propose adding 808.405, Ordering procedures for Federal Supply
Schedules, as a section heading with no text, and 808.405-70, Set-aside
procedures for VA and GSA Federal Supply Schedules. This requires
contracting officers to use the supplemental ordering procedures of
this section when establishing a BPA or placing an order for supplies
or services under this subpart. This includes posting requirements and
the required use of evaluation preferences for SDVOSBs/VOSBs when a
set-aside is not pursued in accordance with the market research and
documentation requirements set forth.
We propose adding 808.405-570, Small business set-asides and
preferences--Veterans First Contracting Program clauses. This includes
the prescription that requires the contracting officer, when setting
aside an order pursuant to 808.405-70 (a), the applicable clause
prescribed in 819.7011 for SDVOSB/VOSB set-asides shall be used. It
also prescribes in paragraph (b) that when an SDVOSB/VOSB set-aside is
not feasible, the ordering activity shall use the clause at 852.208-70,
Service-Disabled Veteran-Owned and Veteran-Owned Small Business
Evaluation Factors--Orders or BPAs, for task orders, delivery orders or
BPAs using evaluation preferences other than price. And in paragraph
(c), it requires the ordering activity to insert the clause at 852.208-
71, Service-Disabled Veteran-Owned and Veteran-Owned Small Business
Evaluation Factor Commitments--Orders or BPAs, in request for quotes
and resulting orders that include clause 852.208-70, Service-Disabled
Veteran-Owned and Veteran-Owned Small Business Evaluation Factors--
Orders or BPAs.
In subpart 808.6, Acquisition from Federal Prison Industries, Inc.,
we propose revising the title to remove ``(FPI)'' to comport with the
title in the FAR.
In 808.603, Purchase priorities, we add language that contracting
officers may purchase supplies and services produced or provided by
Federal Prison Industries (FPI) from eligible SDVOSBs and VOSBs, in
accordance with procedures set forth in subpart 819.70, without seeking
a waiver from FPI. We are correcting the previous title that had been
codified at 808.603 from ``Purchasing priorities'' to ``Purchase
priorities'' to align with the FAR.
We propose to remove and reserve 808.8, Acquisition of Printing and
Related Supplies and the underlying section 808.802, Policy. This is
internal policy that will be removed to the VAAM.
VAAR Part 810--Market Research
We propose revising the authority citations pertaining to part 810
to standardize how it is referenced in other VAAR parts. The authority,
which now reads ``38 U.S.C. 8127 and 8128,'' would be changed to read:
``38 U.S.C. 8127-8128.''
We propose removing reference to paragraph (d) in the 40 U.S.C. 121
citation because it is unnecessary; only paragraph (c) will be
reflected. This comports with the FAR. 40 U.S.C. 121(c) provides that
the Administrator of the General Services Administration may prescribe
regulations to carry out responsibilities under the Federal Property
and Administrative Services subtitle of Title 40, and, additionally,
that the head of each executive agency shall issue orders and
directives that the agency head considers necessary to carry out the
prescribed regulations issued by the Administrator. The VAAR, which
supplements and implements the FAR, and its internal operational
procedures, is a part of the orders and directives as authorized under
this authority.
We propose including a reference to Title 41 U.S.C. 1121(c)(3),
which speaks to the authority of an executive agency under another law
to prescribe policies, regulations, procedures, and forms for
procurement that are subject to the authority conferred in the cited
section, as well as other sections of Title 41 as shown therein.
And finally, we also propose revising part 810 authorities to add
41 U.S.C. 1702, which addresses overall direction of procurement
policy, acquisition planning and management responsibilities of VA's
Chief Acquisition Officer. We are removing the dash in 48 CFR 1.301-
1.304 and adding the word ``through.'' Any other proposed changes to
authorities are shown under the individual parts as described in the
preamble.
We propose revising part 810, Market Research, to add 810.000,
Scope of part, which provides that the Veterans First Contracting
Program in subpart 819.70 applies to contract actions under this part
and takes precedence over other small business programs referenced in
FAR part 10 and FAR part 19.
We propose revising, redesignating, and renumbering the current
810.001, Market research policy, and retitling it so it now reads:
810.001-70, Market research policy--use of VA Vendor Information Pages.
This corrects the error during original codification in the VAAR when
published originally as a proposed and final rule and which currently
is reflected in the eCFR as ``810.001, Market research policy,'' and
which then should have reflected: 810.001, Policy. This provides an
updated Vendor Information Pages (VIP) website address and require
contracting officers to review the VIP database as mandated by VAAR
subpart 819.70, the Veterans First Contracting Program. It also
requires more specifically that contracting officers search the VIP
database by applicable North American Industry Classification System
(NAICS) codes to determine whether two or more verified service-
disabled veteran-owned small businesses (SDVOSBs) and veteran-owned
small businesses (VOSBs), in the appropriate NAICS code, are listed as
verified in the VIP database. The contracting officer is required to
determine, among other things as the requirement dictates, whether VIP-
listed SDVOSBs or VOSBs identified as a result of market research are
capable of performing the work, are likely to submit an offer/quote,
and whether award can be made at a fair and reasonable price that
offers best value to the Government. The contracting officer must use
the market research for acquisition planning purposes, and as
[[Page 13602]]
set forth in VAAR subpart 819.70, conduct a VA Rule of Two
determination in accordance with the contracting order of priority (see
819.7006 and 819.7007)
We also propose removing 810.002, Market research procedures. This
identifies internal procedures of VA that do not have a significant
effect beyond the internal operating procedures of the VA (see FAR
1.301(b)). The information in this section will be moved to the VAAM.
VAAR Part 813--Simplified Acquisition Procedures
We propose revising the title of 813.003-70, Policy, to ``General
policy'' to reflect it is supplementing the FAR at 813.003 and to
comport with standard FAR conventions. We also propose adding a
sentence in paragraph (a) that provides a pointer back to 808.002 for
VA policy regarding mandatory Government sources. In the following
paragraphs we propose updating references to 819 sections as a result
of the renumbering of VAAR part 819 sections as follows:
In paragraph (c)(1) references to 819.7005 and 819.7006 are revised
to 819.7006 and 819.7007, respectively, and a reference to 819.7009 is
revised to 819.7011.
In paragraph (c)(2) a reference to 815.304 is revised to 815.304-70
to reflect a change at that section in VAAR part 815.
And in paragraph (d), a reference pointer to 819.7004 and 819.7011
are added to the end of the sentence.
In subpart 813.1, Procedures, we add references to new relevant
VAAR part 806 sections to section 813.106-70, Soliciting competition,
evaluation of quotations or offers, award and documentation--the
Veterans First Contracting Program. In paragraph (b), we add a
reference to 806.302-570(a) and (b) pertaining to justification for
procurements under the simplified acquisition threshold, and in
paragraph (c), we add a reference to 806.302-570(a) and (c), above the
simplified acquisition threshold.
VAAR Part 819--Small Business Programs
We propose adding authority citations for 15 U.S.C. 631 et seq. to
denote the authority for small business programs at Federal agencies,
as well as moving 15 U.S.C. 637(d)(4)(E) earlier in the list of
authorities to reflect authority for an agency to develop incentives
for increasing subcontracting plan opportunities which is under the
auspices of the Office of Small and Disadvantaged Business Utilization
(OSDBU).
We propose revising the authority citations pertaining to part 819
to standardize how it is referenced in other VAAR parts. The authority,
which now reads ``38 U.S.C. 8127 and 8128,'' would be changed to read:
``38 U.S.C. 8127-8128.''
We propose removing reference to paragraph (d) in the 40 U.S.C. 121
citation because it is unnecessary; only paragraph (c) will be
reflected.
We propose revising the authority citations pertaining to part 819
to include a reference to 41 U.S.C. 1121(c)(3), which speaks to the
authority of an executive agency under another law to prescribe
policies, regulations, procedures, and forms for procurement that are
subject to the authority conferred in the cited section, as well as
other sections of Title 41 as shown therein.
We also propose revising part 819 authorities to add 41 U.S.C 1303,
which reflects additional authority of the VA as an executive agency to
issue regulations that are essential to implement Governmentwide
policies and procedures in the agency, as well as to issue additional
policies and procedures required to satisfy the specific needs of the
VA.
We also propose adding 41 U.S.C. 1702, which addresses overall
direction of procurement policy, acquisition planning and management
responsibilities of VA's Chief Acquisition Officer. Any other proposed
changes to authorities are shown under the individual parts as
described in the preamble. We are removing the dash in 48 CFR 1.301-
1.304 and adding the word ``through.''
We propose adding 819.000, Scope of part, indicating that 819
supplements FAR 19 and implements provisions of title 38 U.S.C. 8127
and 8128, as well as Executive Order 13360 and the Small Business Act
(15 U.S.C. 631 et seq.) as applied to VA. This part also covers goals,
priorities, and preferences for using SDVOSBs, VOSBs, and SBs, as well
as subcontracting compliance.
In subpart 819.2, Policies, the text is revised and updated to
align more appropriately with FAR subpart 19.2 and to expand on VA
policy regarding the Veterans First Contracting Program. New text in
section 819.201 describes VA's small business policy consistent with
the VA's legislation and its legislative history and is now aligned
with the most recent FAR paragraph lettering/numbering. In the proposed
revisions to 819.201, General policy, the realigned section contains
revisions as follows: Paragraph (a) provides a policy statement
regarding priority for veteran owned small businesses and establishment
of goals consistent with VA's legislative mandate and key points in the
Supreme Court Kingdomware decision regarding goals; paragraph (c)
assigns OSDBU concurrent responsibility for the Veterans First
Contracting Program, in addition to those legislative mandates in FAR;
and paragraph (d) covers the appointment of small business specialists
by the HCA in coordination with OSDBU.
We propose revising 819.202, Specific policies to align with the
FAR coverage for OSDBU recommendation on set-asides. It implements the
FAR section and expands coverage to the Veterans First Contracting
Program in subpart 819.70. The section also covers, in very broad
terms, the VA Form 2268, Small Business Program and Contract Bundling
Review process.
We propose deleting 819.202-1, Encouraging small business
participation in acquisitions. Existing contract financing language
here is removed from the VAAR as redundant to the FAR, and certain
internal procedural guidance is included in VAAM subpart 832.4. The
current VAAR text provides that payments of less than 30 days are
allowed, but the contracting officer and the local fiscal officer must
agree on the negotiated payment terms before awarding the contract.
Note: This requirement may have been overtaken by the accelerated
payments provisions recently added to FAR part 32.
We propose removing coverage in sections 819.202-1, 819.202-5,
819.202-70, and 819.202-71. Current VAAR coverage under these sections
are no longer necessary or were moved to other sections. Internal
procedures are removed and moved to the VAAM.
In 819.202-72, Order of precedence, the section is removed, and the
language moved to a new section 819.203-70, Priority for SDVOSB/VOSB
contracting preferences, to supplement more appropriately FAR 19.203.
We propose adding 819.203, Relationship among small business
programs, as a section header with no text.
We proposed adding 819.203-70, Priority for SDVOSB/VOSB contracting
preferences. This proposed supplement to FAR 19.203 cites the
legislative authority for VA to establish special acquisition methods
and priorities which shall be considered by VA contracting officers
before other priorities and preferences in FAR 19.203. It also covers
legislative requirements in 38 U.S.C. 8128 to provide SDVOSB/VOSB
preference
[[Page 13603]]
under any other small business program.
In subpart 819.3, Determination of Small Business Status for Small
Business Programs, we propose revising the title to comport with the
updated FAR title so that it reads: Determination of Small Business
Size and Status for Small Business Programs.
We propose revising existing section at 819.307, SDVOSB/VOSB Small
Business Status Protests, to change the title to comport with the FAR
so that it reads: ``Protesting a firm's status as a service-disabled
veteran-owned small business concern.'' There is no text under this
section heading. The text previously under this section is moved to a
new 819.307-70 as described below.
We propose adding 819.307-70, SDVOSB/VOSB status protests, to
reflect that it provides VA policy supplementing FAR 19.307. Paragraph
(a) from the existing CFR is modified as a single paragraph. The other
paragraphs in the previous text at 819.307 are removed. The proposed
modified section reiterates a FAR requirement that protests,
challenging whether an SDVOSB/VOSB is a ``small business'' for the
purposes of any Federal program, are subject to FAR subpart 19.3 and
must be filed in accordance with that part. It also implements
legislative requirements contained in section 1832 of the National
Defense Authorization Act for FY 2017, Public Law 114-328, to place
responsibility for all SDVOSB/VOSB status protests with the SBA Office
of Hearings and Appeals, including those related to VIP inclusion.
We propose revising subpart 819.5, to change the title from ``Set-
Asides for Small Businesses'' to ``Small Business Total Set-Asides,
Partial Set-Asides, and Reserves'' to comport with an updated title in
the FAR.
We propose adding 819.501, General, as a section header with no
text.
We propose adding 819.501-70, General principles for setting aside
VA acquisitions. A new section is created as a supplement to FAR
19.501, General, providing small business set aside principles and
priorities that apply to VA set asides. The FAR provides a preference
to the socioeconomic programs in FAR 19.202 before small business set-
asides but does not provide coverage for VOSB set-asides. Nor does it
require verification of SDVOSBs for set-asides covered under FAR
subpart 19.14. Moreover, the SDVOSB program in FAR is discretionary and
not mandatory as it is for VA. The new section covers VA priorities and
preferences for SDVOSBs/VOSBs, both above and below the simplified
acquisition threshold in accordance with subpart 819.70. These
priorities also apply to all VA acquisitions under this subpart
including orders and BPAs under multiple award contracts, GSA Federal
Supply Schedule contracts and Multi-Agency Contracts (MACs) awarded by
another agency. It also provides that when a procurement requirement is
not set aside for SDVOSBs/VOSBs in accordance with subpart 819.70, the
contracting officer shall consider using evaluation preferences, as set
forth in 808.405-70 or 815.304-70. It also adds coverage indicating
that contracting officers may provide in the solicitation for the use
of tiered evaluations. Note: Since other Federal agencies, including
GSA, are not subject to Public Law 109-461, and/or ownership and
control verification, the section reiterates that the requirements in
this section apply to all VA competitive acquisitions under this
subpart, including orders and BPAs under multiple award contracts, GSA
Federal Supply Schedule contracts and Multi-Agency Contracts (MACs)
awarded by another agency. It also provides that a set-aside restricted
to SDVOSBs/VOSBs pursuant to VAAR subpart 819.70 satisfies competition
requirements in FAR part 6, as well as fair opportunity requirements
for orders under multiple-award contracts (see FAR 16.505(b)(2)(i)(F)).
Under section 819.502, Setting aside acquisitions, we propose
adding an underlying section 819.502-1, Requirements for setting aside
acquisitions. This new section is created to supplement FAR 19.502-1(b)
with the VA policy for mandatory Government sources. The FAR section
provides that small business set-asides do not apply to purchases from
required sources under part 8 (e.g., Committee for Purchase From People
Who are Blind or Severely Disabled). As a result of Public Law 116-155,
the new VAAR section refers contracting officers to VAAR 808.002 for
the VA policy regarding priorities for use of SDVOSBs/VOSBs and
mandatory Government sources as VA has different requirements with
respect to FAR 8.002 based on Public Law 116-155.
In 819.502-2, Total small business set-asides, we propose adding
new coverage at 819.502-2(a) to indicate that VA contracting officers,
rather than withdrawing an SDVOSB/VOSB set-aside and resoliciting, may
follow tiered evaluation procedures, as provided in the March 22, 2018
VA Class Deviation from Federal Acquisition Regulation 19.502-2, Total
small business set-asides.
We propose removing 819.502-3, Partial set-asides. Coverage is no
longer required because the FAR adequately covers this topic.
We propose adding 819.507, Solicitation provisions and contract
clauses, as a new section header with no text.
We propose adding 819.507-70, Additional VA solicitation provisions
and contract clauses. This proposed new section refers contracting
officers to VAAR subpart 808.4 (Federal Supply Schedules); VAAR subpart
815.3 (Source Selection); and VAAR subpart 819.70 (Veterans First
Contracting Program) for VA specific requirements and clauses
applicable to VA veteran-owned and small business contracting programs.
We propose removing subpart 819.6, Certificates of Competency and
Determinations of Responsibility. The FAR-redundant language is removed
and information that is internal and procedural in nature is moved to
the VAAM.
In subpart 819.7--The Small Business Subcontracting Program, we
propose removing 819.704, Subcontracting plan requirements; the
language will be moved to a new section, retitled and revised as
discussed below.
We propose adding 819.704-70, VA subcontracting plan requirements,
as a supplement to the FAR. This language contains some previous
coverage at 819.704. This proposed new language directs contracting
officers to ensure any subcontracting plans submitted by offerors
include goals for SDVOSBs and VOSBs that are commensurate with the
annual VA SDVOSB and VOSB subcontracting goals, rather than the prime
contracting goals as previously included in this section. The proposed
new language cautions contractors that only firms registered and
verified through the VIP data base will count towards their SDVOSB/VOSB
subcontracting goals; and that subcontracting plan achievement reports
will be reviewed to ensure the subcontract was awarded to a business
concern that is eligible to be counted toward meeting the goal, as
provided in subpart 819.70.
Section 819.704-70, paragraph (b) requires goals to be expressed as
a percentage of total dollars to be subcontracted unless otherwise
stated in the solicitation. Paragraph (c) provides that if an offeror
proposes to use an SDVOSB/VOSB subcontractor for the purpose of
receiving SDVOSB/VOSB evaluation factors credit pursuant to 808.405-70
or 815.304-70, the contracting officer shall ensure that the offeror,
if awarded the contract, uses the
[[Page 13604]]
proposed subcontractor or another SDVOSB/VOSB for that subcontract or
for work of similar value, in accordance with clause 852.208-70 or
852.215-71, Evaluation Factor Commitments.
Paragraph (d) provides that pursuant to 38 U.S.C. 8127(g), any
business concern that is determined by VA to have willfully and
intentionally misrepresented a company's SDVOSB or VOSB status is
subject to debarment from contracting with the Department for a period
of not less than five years. This includes the debarment of all
principals in the business.
We propose removing 819.705, Appeal of contracting officer
decisions. Relevant subcontracting-related language is incorporated
into 819.704-70. Unrelated language regarding set-aside decisions is
removed because it is not applicable to subcontracting.
We propose renumbering 819.709, Contract clause, as 819.708,
Contract clauses, to align with FAR clause coverage on small business
subcontracting plans. It requires the contracting officer to insert
VAAR clause 852.219-9, Small Business Subcontracting Plan Minimum
Requirements, in solicitations and contracts that include FAR clause
52.219-9, Small Business Subcontracting Plan. In addition, the section
refers readers to new subpart 819.72 for other required provisions and
clauses.
In subpart 819.8, Contracting With the Small Business
Administration (The 8(a) Program), we propose revising the title to
correct a minor capitalization error to comport with the FAR so that it
reads: ``Contracting With the Small Business Administration (the 8(a)
Program).
We propose revising 819.800, General. Paragraphs (a), (b), and (c)
are deleted as obsolete. New paragraph (e) is created to refer to the
SBA/VA Partnership Agreement (PA), which delegates contracting
execution authority to VA contracting officers. The PA sets forth the
delegation of authority and establishes the basic procedures for
expediting the award of 8(a) contract requirements. The actual PA and
related basic procedures will be addressed in VAAM subpart M819.8. The
PA is now permanent (as opposed to a yearly agreement) but is subject
to cancellation by SBA. The new language provides that contracting
officers must follow the alternate procedures in the Partnership
Agreement and this subpart, as applicable, to award an 8(a) contract
and that in the event no Partnership Agreement is in effect, the
procedures in FAR subpart 19.8 will be followed.
We propose adding 819.811, Preparing the contracts, as a section
header with no text.
We propose adding 819.811-370, VA/SBA Partnership Agreement and
contract clauses, for direct 8(a) awards. The new language prescribes
clauses 852.219-18, Notification of Competition Limited to Eligible
8(a) Participants, and 852.219-71, Notification of Section 8(a) Direct
Award.
In subpart 819.70, Service-Disabled Veteran-Owned and Veteran-Owned
Small Business Acquisition Program, we propose revising the title of
the subpart to reflect the well-known and public name of the program:
The VA Veterans First Contracting Program, typically referred to as the
Veterans First Contracting Program.
We propose revising 819.7001, General, to provide background and
legislative authority for the Veterans First Contracting Program
consistent with legislative requirements in 38 U.S.C. 8127 and 8128 and
the June 16, 2016 decision of the U.S. Supreme Court in Kingdomware
Technologies, Inc. v. United States (No. 14-916) (136 S.Ct. 1969
(2016)). In the Kingdomware decision dated June 16, 2016, the Supreme
Court held that 38 U.S.C. 8127(d) applies to all competitively awarded
contracts, including orders placed against Federal Supply Schedule
(FSS) contracts. The Court also held the Rule of Two contracting
procedures in section 8127(d) are not limited to those contracts
necessary to fulfill the Secretary's goals. The ``VA Rule of Two'' as
VA's implementing policy defined in VAAR 802.101 via Class Deviation
issued on July 25, 2016 (and subsequent minor amendments), after the
Kingdomware case, refers to the legislative requirement in Sec.
8127(d) that ``a contracting officer of the Department shall award
contracts on the basis of competition restricted to small business
concerns owned and controlled by veterans if the contracting officer
has a reasonable expectation that two or more 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.'' Paragraph (b) is revised to state that eligible
SDVOSBs qualify for VOSB preferences under VAAR subpart 819.70.
Paragraphs (c) and (d) provide the legislative basis for VA contracting
officers to make awards to VIP-listed SDVOSBs/VOSBs using set-asides,
other than full and open competition (sole source), as well as to
provide SDVOSBs/VOSBs priority in the awarding of contracts and
subcontracts through the use of evaluation preferences. Paragraph (d)
provides that while contracting officers shall award contracts on the
basis of competition restricted to small business concerns owned and
controlled by veterans as provided in 819.7006 and 819.7007, when
appropriate, the contracting officer may also use other SDVOSB/VOSB
preferences in this subpart, including sole source awards. Paragraph
(e) provides that a contract awarded under this subpart is subject to
the SBA limitations on subcontracting requirements in 13 CFR 125.6,
provided that a firm must be VIP-listed. Additional information is
provided as to who is considered similarly situated. Paragraph (f)
states that the attainment of goals or the use of interagency vehicles
or Governmentwide contract vehicles (i.e., Federal Supply Schedules
(FSS)) does not relieve the contracting officer from using SDVOSB/VOSB
set-asides and other preferences as provided in subpart 819.70. It also
requires that if the VA enters into a contract, agreement, or other
arrangement with any Governmental entity to acquire goods or services,
the entity acting on behalf of the VA through such an interagency
acquisition or other agreement will comply, to the maximum extent
feasible, with the provisions of the Veterans First Contracting Program
as set forth in this subpart. Paragraph (g) requires contracting
officers to ensure awards are made using the VA hierarchy of SDVOSB/
VOSB preferences in this subpart. Specifically, the contracting officer
will consider preferences for eligible SDVOSBs first, then preferences
for other eligible VOSBs. And paragraph (h) would provide that when an
offer of an SDVOSB/VOSB prime contractor includes a proposed team of
small business subcontractors and specifically identifies the first-
tier subcontractor(s) in the proposal, the contracting officer must
consider the capabilities, past performance, and experience of each
first tier subcontractor that is part of the team as the capabilities,
past performance, and experience of the small business prime contractor
if the capabilities, past performance, and experience of the small
business prime does not independently demonstrate capabilities and past
performance necessary for award.
We propose revising 819.7002, Applicability, to reiterate that this
subpart applies to VA contracting activities and to all contract
actions. In addition, this subpart applies to VA contractors and to any
government entity that has a contract, memorandum of understanding,
agreement, or other arrangement with VA to acquire goods
[[Page 13605]]
and services for VA in accordance with 817.502. It includes a reference
to VAAR 808.002 to ensure the public and VA contracting officers
understands to refer to 808.002 for applicability and VA policy
regarding priorities for use of mandatory Government sources.
We propose revising 819.7003, Eligibility. Most of the original
structure and language regarding eligibility of SDVOSBs and VOSBs is
retained but updated to reflect new legislative requirements regarding
eligibility under the program and alignment with SBA regulations,
including the applicability of limitations on subcontracting and the
transfer of eligibility challenges to the SBA as a result of Public Law
114-328, enacted December 23, 2016 and subsequent legislative and
regulatory changes. For example, new language has been added to clarify
joint venture eligibility as a result of recent SBA regulatory changes,
and a new paragraph is added to address the limitations on
subcontracting certification requirements in Public Law 116-183, August
19, 2020. In addition, a new paragraph is added consistent with a 2012
amendment to Public Law 109-461, stating that willful and intentional
misrepresentation of SDVOSB/VOSB status is subject to debarment from
contracting with the Department for a period of not less than five
years.
We propose adding 819.7004, Limitations on subcontracting
compliance requirements. This new section is created to address the
limitations on subcontracting certification requirements in Public Law
116-183, August 19, 2020. Specifically, contracting officers may award
a contract under this subpart only after obtaining from the offeror a
certification that the offeror will comply with the limitations on
subcontracting requirements described in the solicitation and required
under the resultant contract. The section also deals with legislative
mandates that require OSDBU and Chief Acquisition Officer (CAO) to
monitor and refer potential violations to the OIG for potential
criminal violations. Note: As a result of this new section, the
numbering in subsequent sections is changed to reflect the
corresponding numerical sequence.
We propose renumbering the existing 819.7004, Contracting order of
priority, to 819.7005. Most of the original language regarding
eligibility of SDVOSBs and VOSBs is removed, and the text updated to
reflect the contracting order of priority established in 38 U.S.C.
8127(h). New simpler language is added to track the order of preference
set forth in 38 U.S.C. 8127(h). As a result of this new section, the
numbering in subsequent sections is changed to reflect the
corresponding numerical sequence.
We propose revising 819.7005, Service-disabled veteran-owned small
business set-aside procedures, renumbering it as 819.7006, and
retitling it as ``VA service-disabled veteran-owned small business set-
aside procedures.'' Most of the existing language is retained with a
few updates consistent with legislative requirements. The section
provides that the contracting officer must consider SDVOSB set-asides
before considering VOSB set-asides and the conditions to be met to make
this determination. New language is added to reflect that the set-
asides are only applicable above the micro-purchase threshold.
We propose revising 819.7006, Veteran-owned small business set-
aside procedures, renumbering it as 819.7007 and retitling it as ``VA
veteran-owned small business set-aside procedures.'' Most of the
existing language is retained with a few updates consistent with
legislative requirements. The section provides that the contracting
officer must consider VOSB set-asides after SDVOSB, and the conditions
to be met to make the determination. New language is added to reflect
that the set-asides are only applicable above the micro-purchases.
We propose revising 819.7007, Sole source awards to service-
disabled veteran-owned small business concerns, renumbering it as
819.7008 and retitling it as ``Sole source awards to verified service-
disabled veteran-owned small businesses.'' Existing language in
paragraphs (a) and (d) is retained. Existing paragraph (b) is broken up
into (b) and (c) and revised as follows: Paragraph (b) retains existing
language recognizing the discretionary nature of this sole source
authority; however, it adds that to ensure opportunities are available
to the broadest number of SDVOSBs this authority is to be used only to
the extent necessary to meet procurement goals and/or when in the best
interest of the agency. Paragraph (c) is added providing that in
accordance with FAR 6.302-5, contracts awarded using this authority
shall be supported by the written justifications and approvals
described in FAR 6.303 and 6.304. And lastly, paragraph (e) is added
indicating that a procurement estimated to exceed $5 million shall not
be split or subdivided to permit the use of this sole source authority.
We propose revising 819.7008, Sole source awards to a verified
veteran-owned small business concerns, renumbering it as 819.7009 and
retitling it as ``Sole source awards to verified veteran-owned small
businesses.'' We propose making similar changes as noted for the
proposed language in 819.7008, but as it applies to Veterans other than
SDVOSBs (i.e., verified veteran-owned small businesses). Note: The
existing section at 819.7009, Contract clauses, is moved to 819.7011 as
discussed below.
We propose adding 819.7010, Tiered set-aside evaluation. This new
section is proposed to implement FAR Class Deviation (VAIQ 7867323) and
PPM 2018-04 Guidance and Procedures regarding use of Tiered Evaluations
for use in solicitations set-aside in accordance with the VA Rule of
Two. The section introduces the concept of tiered set-aside
evaluations. It also defines and establishes the basis for the program,
as implemented by VA. This is necessary because currently there is no
guidance in the FAR for such a process.
We propose revising 819.7009, Contract clauses, by renumbering it
to 819.7011. The section prescribes set-aside clauses for solicitations
and contracts. The names of the clauses are changed slightly to further
differentiate from those in FAR and the numbering scheme is changed to
comply with FAR drafting guidelines. In addition, the actual content of
the clauses is updated. Two new clauses have been created to address
the limitations on subcontracting certification requirements in Public
Law 116-183, August 19, 2020. The legislation requires that before an
award is made under the Veterans First Contracting Program, offerors
must submit a certification of compliance with the Limitation on
Subcontracting requirements and the Nonmanufacturer rule. This is
discussed further under Part 852.
We propose removing and reserving subpart 819.71, VA Mentor-
Prot[eacute]g[eacute] Program. The underlying sections 819.7101 through
819.7115 are accordingly also removed. The VA Mentor-
Prot[eacute]g[eacute] Program is inactive. It was replaced with the
Small Business Administration's Small Business Mentor
Prot[eacute]g[eacute] Programs established pursuant to the Small
Business Jobs Act of 2010 and the National Defense Authorization Act of
2013. If VA does create a program specific to VA, the proposed language
will be in a separate VAAR case for public comment.
VAAR Part 832--Contract Financing
We propose removing subpart 832.9, Prompt Payment, and the
underlying section 832.904-70 Determining payment due dates for small
businesses.
[[Page 13606]]
As a result of a FAR class deviation issued ahead of FAR rulemaking,
the VAAR must remove language that VA had enacted timely but is now
redundant to the FAR class deviation.
VAAR Part 852--Solicitation Provisions and Contract Clauses
We propose removing 852.207-70, Report of Employment Under
Commercial Activities, which is no longer required.
We propose adding 852.208-70, Service-Disabled Veteran-Owned and
Veteran-Owned Small Business Evaluation Factors--Orders or BPAs, to
reflect the clause prescribed by 808.405-570. Rather than relying on a
clause under FAR part 15, this clause is specific to its use under FAR
subpart 8.4 and the GSA FSS program. The clause provides that in an
effort to increase contracting opportunities for veterans, depending on
the evaluation factors included in the solicitation, VA will evaluate
responses received based on the schedule Contractor's VIP verified
service-disabled veteran-owned small business/veteran-owned small
business (SDVOSB/VOSB) status; and/or their proposed use of SDVOSB/VOSB
as subcontractors or teaming partners. This new language proposes that
in order to receive credit under this clause a contractor or
subcontractor must be listed, at time of submission of offer/quotes and
at time of award, as an eligible SDVOSB/VOSB in the Vendor Information
Pages (VIP) database at https://www.vetbiz.va.gov/vip/. VIP listed
service-disabled veteran-owned schedule holders will receive full
credit, and those listed in VIP as veteran-owned small businesses will
receive partial credit for the SDVOSB/VOSB status evaluation factor. It
also requires the offeror proposing to use VIP listed SDVOSBs/VOSBs as
subcontractors or teaming partner must provide in their proposals
information regarding the proposed SDVOSBs or VOSBs such as names and
contact information of the VIP-listed SDVOSBs/VOSBs, a description of
the proposed teaming arrangement, the approximate dollar value of the
proposed teaming arrangements or subcontract(s), and evidence of
teaming partner/subcontractor's VIP database registration and
verification.
We propose adding 852.208-71, Service-Disabled Veteran-Owned and
Veteran-Owned Small Business Evaluation Factor Commitments--Orders and
BPAs, as prescribed in 808.405-570. The proposed language provides that
if a contractor is selected on the basis of SDVOSB or VOSB status, the
contractor agrees to comply with the eligibility requirements in
subpart 819.70, including the limitation on subcontracting requirements
at 13 CFR 125.6. The clause also requires that if the contractor is
selected for award on the basis of teaming/subcontracting in accordance
with 852.208-70, the contractor agrees to use the evaluated firm(s) as
proposed or to substitute one or more VIP verified SDVOSB/VOSB for work
of the same or similar value. Such substitution must be for cause and
approved by the contracting officer. It also includes language that
pursuant to 38 U.S.C. 8127(g), any business concern that is determined
by VA to have willfully and intentionally misrepresented a company's
SDVOSB/VOSB status is subject to debarment for a period of not less
than five years. This includes the debarment of all principals in the
business.
In 852.219-9, VA Small Business Subcontracting Plan Minimum
Requirements, we propose renumbering it to 852.219-70 to comport with
FAR drafting guidelines and numbering conventions. We propose revising
language to reflect updated policy with the implementation of 38 U.S.C.
8127-8128 at the VA. We propose emphasizing the requirement to utilize
VA verified SDVOSBs/VOSBs in subcontracting plans, when previously this
was not specifically addressed. The use of VA Form 0896A, Report of
Subcontracts to Small and Veteran-Owned Business, is specified. And we
provide language that pursuant to 38 U.S.C. 8127(g), any business
concern that is determined by VA to have willfully and intentionally
misrepresented a company's SDVOSB/VOSB status is subject to debarment
for a period of not less than five years. This includes the debarment
of all principals in the business.
We propose removing 852.219-10, VA Notice of Total Service-Disabled
Veteran-Owned Small Business Set-Aside and 852.219-11, VA Notice of
Total Veteran Owned Small Business Set- Aside, as the names of the
clauses will be changed and renumbered to 852.219-73 and 852.219-74, in
order to differentiate from those in the FAR. A discussion is provided
where the new numbered clauses are mentioned in this preamble.
We propose removing 852.219-71, VA Mentor-Prot[eacute]g[eacute]
Program and 852.219-72, Evaluation Factor for Participation in the VA
Mentor-Prot[eacute]g[eacute] Program because the VA Mentor-
Prot[eacute]g[eacute] Program is inactive. It was replaced with the
Small Business Administration's Small Business Mentor
Prot[eacute]g[eacute] Programs established pursuant to the Small
Business Jobs Act of 2010 and the National Defense Authorization Act of
2013.
We propose adding 852.219-71, Notification of Competition Limited
to Eligible 8(a) Participants, which would be used in conjunction with
FAR clause 52.219-18, Notification of Competition Limited to Eligible
8(a) Participants, and state that any award resulting from this
solicitation will be made directly by the contracting officer to the
successful 8(a) offeror. Although SBA is not identified as such in the
award form, SBA is still the prime contractor.
We propose adding 852.219-72, Notification of Section 8(a) Direct
Award, which would provide further information about the Partnership
Agreement between the VA and the Small Business Administration.
We propose adding 852.219-73, VA Notice of Total Set-Aside for
Verified Service-Disabled Veteran-Owned Small Businesses, and 852.219-
74, VA Notice of Total Set-Aside for Verified Veteran-Owned Small
Businesses, which were previously numbered as 852.219-10 and 852.219-
11. The actual content of the clauses is updated to address new
legislative requirements on limitations on subcontracting requirements.
We propose adding 852.219-75, VA Notice of Limitations on
Subcontracting--Certificate of Compliance for Services and
Construction. This new clause addresses the limitations on
subcontracting certification requirements in Public Law 116-183, August
19, as it is applied to services and construction. The legislation
requires that before an award is made under the Veterans First
Programs, offeror must submit a certification of compliance with the
Limitations in Subcontracting requirements, currently required by SBA
at 13 CFR 125.6.
We propose adding 852.219-76, VA Notice of Limitations on
Subcontracting--Certificate of Compliance for Supplies and Products.
This new clause addresses the limitations on subcontracting
certification requirements in Public Law 116-183, August 19, 2020 as it
applies to supplies and products.
VAAR Part 853--Forms
In subpart 853.2--Prescription of Forms, we propose adding 853.219,
Small business forms, and to add the following forms referenced in the
VAAR dealing with Small Business Programs under VAAR part 819 under the
auspices of the Office of Small and Disadvantaged Business Utilization:
VA Form 2268, Small Business Program and Contract Bundling Review,
which is prescribed in 819.202. Contracting
[[Page 13607]]
officers shall use VA Form 2268, Small Business Program and Contract
Bundling Review, to document actions related to small business, market
research and consideration of the VA Rule of Two. VA Form 0896A, Report
of Subcontracts to Small and Veteran-Owned Business, which is utilized
by contractors when proposing subcontracting to SDVOSB/VOSBs.
Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
the 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 proposed rule includes provisions constituting a revised
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 (OMB). This proposed rule also contains collection of
information under the provisions of the Paperwork Reduction Act of 1995
(44 U.S.C. 3501-3521) that are already approved by OMB. The collection
of information for 48 CFR 819.704-70, 852.219-9, and 853.219(b) is
currently approved by the Office of Management and Budget (OMB and has
been assigned OMB control number 2900-0741. Accordingly, under 44
U.S.C. 3507(d), VA has submitted a copy of this rulemaking containing
the revised collection of information to OMB for review and approval.
OMB assigns control numbers to collections of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. If OMB does not approve the
collection(s) of information as requested, VA will immediately remove
the provisions containing the collection(s) of information or take such
other action as is directed by OMB.
Comments on the revised collection(s) of information contained in
this rulemaking should be submitted through www.regulations.gov.
Comments should indicate that they are submitted in response to ``RIN
2900-AR06; VA Acquisition Regulation: Acquisition Planning; Required
Sources of Supplies and Services; Market Research; and Small Business
Programs'' and should be sent within 60 days of publication of this
rulemaking. The information collection(s) associated with this
rulemaking can be reviewed at: www.reginfo.gov/public/do/PRAMain.
OMB is required to make a decision concerning the collection(s) of
information contained in this rulemaking between 30 and 60 days after
publication of this rulemaking in the Federal Register. Therefore, a
comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment on the provisions of this
rulemaking.
The Department considers comments by the public on new
collection(s) of information in--
Evaluating whether the new collection(s) of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the new collection(s) of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collection(s) of information
on those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The removed collection of information associated with this
rulemaking is contained in 48 CFR 852.207-70, Report of Employment
Under Commercial Activities, under OMB control # 2900-0590. This
proposed rule would remove one of the existing information collection
requirements associated with this action at 48 CFR 852.207-70 to
reflect the discontinuation of 852.207-70, as well as the related
prescriptions for the clause at 807.304-77 and 873.110, paragraph (f).
The removal of VAAR clause 852.207-70 from this OMB control number will
remove 15 estimated annual burden hours and an annual cost savings to
respondents of $428.85 that are currently reflected in the OIRA/OMB
information collection inventory. However, due to the fact this OMB
control number contains two additional VAAR clauses, as well as the
increase of the Bureau of Labor Statistics (BLS) hourly rate in May
2020, the net decrease of public burden cost for this OMB control
number is $268.85.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule is not
expected to 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 overall impact of the proposed rule would be 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. VA
estimates no increased or decreased costs to small business entities.
This rulemaking clarifies VA's policy regarding the contracting order
of priority for Service-Disabled Veteran-Owned Small Businesses
(SDVOSBs) and Veteran-Owned Small Businesses (VOSBs) as a result of the
U.S. Supreme Court's decision in Kingdomware Technologies, Inc. vs. the
United States, July 25, 2018, (Kingdomware) only as it pertains to the
application of the VA Rule of Two in accordance with Public Law 109-461
as codified at 38 U.S.C. 8127-8128, and via the original Final Rule--VA
Acquisition Regulation: Supporting Veteran-Owned and Service-Disabled
Veteran-Owned Small Businesses, published in the Federal Register at 74
FR 64619, on December 9, 2009, and effective January 7, 2010.
This regulation seeks to simplify and streamline VA guidance
regarding its small business program. The impact on small business
overall is positive, as VA continues to implement its small business
policies in accordance with legislative mandates pertaining to the
Department of Veterans Affairs in 38 U.S.C. 8127-8128 to ensure that
that small business owned and controlled by Veterans receive a fair
share of contracting opportunities at the Department. VA's hierarchy of
contracting preferences, established by law, mandates VA Vendor
Information Pages (VIP)-listed SDVOSBs first, then VOSBs, prior to
other small business preferences. While consistent with VA's
[[Page 13608]]
legislation and mission to serve Veterans, this mandate necessarily
makes achievement of other small business goals more challenging that
fall in a statutorily based lower contracting order of priority, e.g.,
awards in the general small business category. Through renewed emphasis
on the program in 2016 post the U.S. Supreme Court decision in
Kingdomware Technologies, Inc., and through increased training and
revised implementing policy and procedures issued to VA contracting
officers, VA has successfully achieved specific SDVOSB, VOSB, and small
business goals for FY 2020 as discussed below.
This rulemaking does not change VA's overall 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. 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.
a. A description of the reasons why action by VA is being
considered.
Response: This proposed rule is part of VA's initiative to revise
and streamline the VAAR in phased increments. It is necessary
specifically with this case, to implement updated requirements the
Department of Veterans Affairs' (VA) policy and procedures pertaining
to 38 U.S.C. 8127-8128 (Pub. L. 109-461), known as the Veterans First
Contracting Program, as well as additional legislative amendments and
statutory changes to 38 U.S.C. 8127 as a result of Public Law 116-155,
the Department of Veterans Affairs Contracting Preference Consistency
Act of 2020, which had an effective date of August 8, 2020, and Public
Law 116-183, Protecting Business Opportunities for Veterans Act of
2019, enacted October 30, 2020, which have been implemented in advance
of this proposed rulemaking through separate class deviations. This
rulemaking provides the proposed changes to the CFR for public comments
on the updates to key related parts.
b. A succinct statement of the objectives of, and legal basis for,
the rule.
Response: The objectives of this proposed rule are to implement
statutory requirements and make other necessary updates to the VAAR to
bring current with the Federal Acquisition Regulation (FAR) and with
specific statutory amendments to 38 U.S.C. 8127. In addition to other
programmatic updates, VA is addressing in this rule Public Law 116-155,
the Department of Veterans Affairs Contracting Preference Consistency
Act of 2020, enacted August 8, 2020, and Public Law 116-183, Protecting
Business Opportunities for Veterans Act of 2019, enacted October 30,
2020.
c. A description of and, where feasible, an estimate of the number
of small entities to which the rule would apply.
Response: This rulemaking is not expected to 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.
To determine the number of potential affected small businesses and
other entities, VA examined the data in the Federal Procurement Data
System (FPDS) to estimate the number of small business entities that
will be affected by this rule. Based on preliminary data from Fiscal
Year 2021, there were 80,148 SDVOSB coded contract actions, and 143,452
coded contract actions to VOSBs. In addition to specific SDVOSB/VOSB
contract actions, in FY 2021 there were a total of 219,301 small
business contract actions in FPDS. Note: SDVOSBs may also be coded in
addition to the SDVOSB category as both a small business and VOSB
award. VA analysis indicates that in FY 2021 VA exceeded its goals for
SDVOSB, VOSB and small businesses. In FY 2020, VA exceeded--(1) its
SDVOSB goal of 15% with a 23.9% achievement; (2) its VOSB goal of 17%
with a 24.4% achievement; and (3) its overall small business goal of
28.45% with a 30.3% achievement, even during the midst of the declared
national emergency on COVID-19. Considering VA had to make critical and
urgent emergency procurements under other authorities, including sole
source, of Personal Protective Equipment (PPE) and other related
medical supplies and services in support of continuity of its core
mission to provide Veterans' healthcare and as part of its overarching
pandemic response in support of the declared national emergency, the VA
acquisition workforce worked diligently hand-in-hand with its program/
project offices to continue to comply with the requirements of 38
U.S.C. 8127-8127 in priority awards to SDVOSBs, then VOSBs. These table
below provides the referenced data and successful small business
program goal achievements in these categories.
Preliminary Fiscal Year 2021 Small Business Goaling Data
----------------------------------------------------------------------------------------------------------------
Total contract
Fiscal year 2021 dollars and Small business SDVOSB VOSB
actions
----------------------------------------------------------------------------------------------------------------
Goal................................ ................. 28.45% 15.0% 17.0%
Actual Performance.................. ................. 30.3% 23.9% 24.4%
Dollars awarded by VA............... $34,351,110,891 $10,307,742,213 $8,144,793,570 $8,365,441,281
Total Contract Awards............... 1,833,460 219,301 80,148 143,452
----------------------------------------------------------------------------------------------------------------
Source: Federal Procurement Data System. Dataset downloaded on December 9, 2021.
This proposed rule should help small businesses continue to receive
a fair share of the VA contracting dollars.
d. A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of the
classes of small entities which would be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record.
Response: This rule does not impose any new reporting,
recordkeeping or other compliance requirements for small entities.
e. An identification, to the extent practicable, of all relevant
Federal rules which may duplicate, overlap or conflict with the rule.
Response: This rule does not duplicate, overlap, or conflict with
any other Federal rules.
f. A description of any significant alternatives to the rule which
accomplish the stated objectives of applicable statutes and which
minimize any significant economic impact of the rule on small entities.
Response: VA is unable to identify any significant alternatives
that would accomplish the requirements of this proposed rule and update
of the VAAR. In accordance with 41 U.S.C. 1707, VA must provide for
public comment any
[[Page 13609]]
proposed revisions to the VAAR, some of which were implemented as class
deviations to ensure compliance with legislation or in accordance with
mandates of the Federal courts, to include the U.S. Supreme Court.
Through this rule, the public will have an opportunity to provide
public comment prior to publication of a final rule. VA considered
initially issuing a complete revision to the VAAR in one case, but
given ongoing litigation and legislative initiatives, as well as the
complexity of the various VAAR parts, the phased incremental approach
permitted the public to be able to focus on specific topics and parts
of interest and allow them to timely submit public comments which may
have been more onerous if the complete VAAR were revised at one time.
By updating the VAAR, it will increase transparency and furthers the
consistent implementation of any new or revised policy and ensures wide
dissemination to both the VA acquisition workforce, the public,
interested parties, and affected small entities such as SDVOSBs, VOSBs,
and small businesses, including AbilityOne participating entities.
Small entities cannot be exempted from coverage under this rule as the
VAAR applies to all potential offerors, large or small.
The rule is not expected to have a significant economic impact to
SDVOSBs or VOSBs since the VA Rule of Two will continue to apply to
VA's unique Veterans First Contracting Program that was first
implemented in the VAAR in 2009, and which was subsequently revised
consistent with revised policy and procedures issued by class
deviations as a result of court cases and new legislative amendments.
VA invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal Governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule would have no such
effect on State, local, and tribal governments or on the private
sector.
List of Subjects
48 CFR Part 802, 807, 808, 810, 813, 832, and 853
Government procurement.
48 CFR Part 819
Administrative practice and procedure, Government procurement,
Reporting and recordkeeping requirements, Small business, Veterans.
48 CFR Part 852
Government procurement, Reporting and recordkeeping requirements.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on February 15, 2022, 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.
Consuela Benjamin,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA proposes to amend 48
CFR, chapter 8 as follows:
PART 802--DEFINITIONS OF WORDS AND TERMS
0
1. Revise the authority citation for part 802 to read as follows:
Authority: 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.
0
2. Amend section 802.101 by adding definitions for ``Public Law (Public
Law) 109-461'', ``SDVOSB/VOSB'', ``VA Rule of Two'', and ``Veterans
First Contracting Program'', and by revising the definitions for
``Service-disabled veteran-owned small business (SDVOSB)'', ``Vendor
Information Pages (VIP) or VIP database'', and ``Veteran-owned small
business (VOSB)'' in alphabetical order to read as follows:
802.101 Definitions.
* * * * *
Public Law (Pub. L.) 109-461 means the Veterans Benefits, Health
Care and Information Technology Act of 2006, as codified in 38 U.S.C.
8127 and 8128.
* * * * *
SDVOSB/VOSB when used as an initialism means a service-disabled
veteran-owned small business (SDVOSB) and/or veteran-owned small
business (VOSB) that has been found by VA eligible to participate in
the Veterans First Contracting Program implemented at subpart 819.70
and listed in the Vendor Information Pages. The term is synonymous with
VA or VIP-verified small business concerns owned and controlled by
Veterans.
* * * * *
Service-disabled veteran-owned small business (SDVOSB) or small
business concern owned and controlled by Veterans with service-
connected disabilities has the same meaning as service-disabled
veteran-owned small business concern defined in FAR 2.101, except that
for acquisitions authorized by 38 U.S.C. 8127 and 8128 for the Veterans
First Contracting Program, these businesses must be listed as verified
in the VIP database. In addition, some SDVOSB listed in the VIP
database may be owned and controlled by a surviving spouse. See
definition of surviving spouse in 802.101.
* * * * *
VA Rule of Two means the determination process mandated in 38
U.S.C. 8127(d)(1) whereby a contracting officer of the Department shall
award contracts on the basis of competition restricted to small
business concerns owned and controlled by veterans if the contracting
officer has a reasonable expectation that two or more 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. For purposes of this VA specific rule, a
service-disabled veteran-owned small business (SDVOSB) or a veteran-
owned small business (VOSB), must meet the eligibility requirements in
38 U.S.C. 8127(e), (f) and VAAR 819.7003 and be listed as verified in
the Vendor Information Pages (VIP) database.
* * * * *
Vendor Information Pages (VIP) or VIP database means the Department
of Veterans Affairs Office of Small and Disadvantaged Business
Utilization (OSDBU) Center for Verification and Evaluation (CVE) Vendor
Information Pages (VIP) database at https://www.vetbiz.va.gov/vip/.
This site's database lists businesses that VA CVE has determined
eligible for the Veterans First Contracting Program.
Veteran-owned small business (VOSB) has the same meaning as
veteran-owned small business concern defined in FAR 2.101, except that
for acquisitions authorized by 38 U.S.C. 8127 and 8128 for the Veterans
First Contracting Program, these businesses must be listed as verified
in the VIP database. SDVOSBs, including businesses whose SDVOSB status
derive from ownership and control by a surviving spouse, are also
considered VOSBs, as long as they are listed as eligible in VIP.
Veterans First Contracting Program means the program authorized by
Public Law 109-461 (38 U.S.C. 8127 and 8128), as implemented in subpart
819.70. This
[[Page 13610]]
program applies to all VA contracts (see FAR 2.101 for the definition
of contracts) as well as Blanket Purchase Agreements (BPAs), Basic
Ordering Agreements (BOAs), and orders against the Federal Supply
Schedules (FSS), unless otherwise excluded by law.
* * * * *
PART 807 [Removed and Reserved]
0
3. Remove and reserve part 807.
0
4. Revise part 808 to read as follows:
PART 808--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Sec.
808.000 Scope of part.
808.001 General.
808.001-70 Definitions.
808.002 Priorities for use of mandatory Government sources.
808.004 Use of other sources.
808.004-70 Use of other priority sources.
Subpart 808.4--Federal Supply Schedules
808.402 General.
808.404 Use of Federal Supply Schedules.
808.404-70 Use of Federal Supply Schedules--the Veterans First
Contracting Program.
808.405 Ordering procedures for Federal Supply Schedules.
808.405-70 Set-aside procedures for VA and GSA Federal Supply
Schedules.
808.405-570 Small business set-asides and preferences--Veterans
First Contracting Program clauses.
Subpart 808.6--Acquisition from Federal Prison Industries, Inc.
808.603 Purchase priorities.
Subpart 808.8--[Reserved]
Authority: 38 U.S.C. 8127-8128; 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.
808.000 Scope of part.
This part deals with prioritizing sources of supplies and services
for use by the Government based on unique VA statutory programs, as
well as requirements when using the General Services Administration
(GSA) Federal Supply Schedules program including the GSA delegated VA
Federal Supply Schedule program.
808.001 General.
808.001-70 Definitions.
As used in this part--
Veterans Affairs (VA) Federal Supply Schedule (FSS) or ``VA FSS''
means FSS contracts awarded by the VA National Acquisition Center,
under authority delegated by the General Services Administration (GSA)
per FAR 8.402(a). VA FSS contracts include medical, dental, pharmacy
and veterinary equipment and supplies in Federal Supply Classification
(FSC) Group 65, instruments and laboratory equipment in FSC Group 66
and health care services in FSC Group 621.
808.002 Priorities for use of mandatory Government sources.
(a) Priorities. Contracting activities shall satisfy requirements
for supplies and services from or through the mandatory sources listed
below in descending order of priority:
(1) Supplies. (i) VA inventories including the VA supply stock
program (41 CFR 101-26.704) and VA excess.
(ii) Excess from other agencies (see FAR subpart 8.1).
(iii) Federal Prison Industries, Inc. (see 808.603). Prior to
considering award of a contract to Federal Prison Industries, Inc,
contracting officers shall apply the VA Rule of Two to determine
whether a requirement should be awarded to veteran-owned small
businesses under the authority of 38 U.S.C. 8127-28, by using the
preferences and priorities in subpart 819.70. If an award is not made
to a VIP-listed and verified service-disabled veteran-owned small
business (SDVOSB)/veteran-owned small business (VOSB) as provided in
subpart 819.70, FPI remains a mandatory source in accordance with FAR
8.002.
(iv) Supplies that are on the Procurement List maintained by the
Committee for Purchase From People Who Are Blind or Severely Disabled,
through the AbilityOne Program (FAR subpart 8.7). Supplies that are on
the Procurement List but which do not meet the definition of a covered
product are only required to be procured from a mandatory source in
accordance with FAR 8.002 if an award is not made to a VIP-listed and
verified SDVOSB/VOSB after following the procedures set forth in
subpart 819.70.
(A) Definition. As used in this paragraph--
Covered product means a product that--
(1) Is included on the Procurement List as authorized under 41
U.S.C. 8503(a) (see FAR 8.703) and was included on the Procurement List
on or before December 22, 2006; or
(2) Meets the following criteria--
(i) Is a replacement for a product under this paragraph;
(ii) Is essentially the same and meeting the same requirement as
the product being replaced; and
(iii) The contracting officer determines the product meets the
quality standards and delivery schedule requirements of VA.
(B) Policy. Except as provided in paragraph (a)(1)(iv)(C) and (D),
contracting officers shall procure covered products that are on the
Procurement List through the AbilityOne Program as set forth in FAR
subpart 8.7. Contracting officers shall not procure products that are
on the Procurement List, but which do not meet the definition of a
covered product using the procedures set forth in FAR subpart 8.7,
unless award cannot be made to a VIP-listed and verified SDVOSB/VOSB
pursuant to the procedures set forth in subpart 819.70.
(C) Exception for certain contracts awarded in accordance with the
Veterans First Contracting Program in subpart 819.70. If a contract for
a covered product awarded under the authority of 38 U.S.C. 8127(d)(1)
to a VIP-listed SDVOSB or VOSB was in effect as of August 7, 2020, the
requirement shall continue as an SDVOSB/VOSB set-aside in accordance
with 819.7006 and 819.7007.
(D) Termination or expiration of excepted contracts. When a
contract previously awarded as set forth in paragraph (a)(1)(iv)(C) of
this section is terminated or expires, contracting officers shall
procure such covered product through the AbilityOne Program as a
priority mandatory Government source (see (a)(1)(iv)(B) of this
section), provided the head of the contracting activity or designee
determines there is no reasonable expectation that--
(1) Two or more SDVOSBs/VOSBs will submit offers; and
(2) Award can be made at a fair and reasonable price that offers
best value to the United States.
(v) Wholesale supply sources, such as stock programs of the General
Services Administration (GSA) (see 41 CFR 101-26.3), the Defense
Logistics Agency (see 41 CFR 101-26.6), the Department of Veterans
Affairs (see 41 CFR 101-26.704), and military inventory control points.
(2) Services that are on the Procurement List maintained by the
Committee for Purchase From People Who Are Blind or Severely Disabled,
through the AbilityOne Program (FAR subpart 8.7). Services that are on
the Procurement List, but which do not meet the definition of a covered
service are only required to be procured from a mandatory source in
accordance with FAR 8.002 if an award is not made to a VIP-listed and
verified SDVOSB/VOSB after following the procedures set forth in
subpart 819.70.
(i) Definition. As used in this paragraph--
Covered service means a service that--
[[Page 13611]]
(A) Is included on the Procurement List as authorized under 41
U.S.C. 8503(a) (see FAR 8.703) and was included on the Procurement List
on or before December 22, 2006; or
(B) Meets the following criteria--
(1) Is a replacement for a service under this paragraph;
(2) Is essentially the same and meeting the same requirement as the
service being replaced; and
(3) The contracting officer determines the service meets the
quality standards and delivery schedule requirements of VA.
(ii) Policy. Except as provided in paragraph (a)(2)(iii) and (iv)
of this section, contracting officers shall procure covered services
that are on the Procurement List through the AbilityOne Program as set
forth in FAR subpart 8.7. Contracting officers shall not procure
services that are on the Procurement List, but which do not meet the
definition of a covered service using the procedures set forth in FAR
subpart 8.7, unless award cannot be made to a VIP-listed and verified
SDVOSB/VOSB pursuant to the procedures set forth in subpart 819.70.
(iii) Exception for certain contracts awarded in accordance with
the Veterans First Contracting Program in subpart 819.70. If a contract
for a covered service awarded under the authority of 38 U.S.C.
8127(d)(1) to a VIP-listed SDVOSB or VOSB was in effect as of August 7,
2020, the requirement shall continue as an SDVOSB/VOSB set-aside in
accordance with 819.7006 and 819.7007.
(iv) Termination or expiration of certain excepted contracts. When
a contract previously awarded as set forth in paragraph (a)(2)(iii) of
this section is terminated or expires, contracting officers shall
procure such covered service through the AbilityOne Program as a
priority mandatory Government source (see (a)(2)(ii) of this section),
provided the head of the contracting activity or designee determines
there is no reasonable expectation that--
(A) Two or more SDVOSBs/VOSBs will submit offers; and
(B) Award can be made at a fair and reasonable price that offers
best value to the United States.
(b) Unusual and compelling urgency. The contracting officer may use
a source other than those listed in paragraph (a) of this section when
the need for supplies or services is of an unusual and compelling
urgency (see FAR 6.302-2, 8.405-6, 13.106-1 and part 806 for
justification requirements).
808.004 Use of other sources.
808.004-70 Use of other priority sources.
(a) Veterans contracting priority. In order to fulfill the
requirements of 38 U.S.C. 8127-8128 (see subpart 819.70), contracting
officers shall award contracts (see FAR 2.101 for the definition of
contracts), as well as Blanket Purchase Agreements (BPAs), and orders
against VA and GSA Federal Supply Schedules (FSS), providing priority
in the awarding of such contracts to VIP-listed SDVOSBs first, then
VOSBs.
(b) Strategic sourcing priorities and application of the VA Rule of
Two. To provide medical supplies in Federal Supply Classification (FSC)
groups 65 and 66 efficiently and effectively the VA, through previous
reform initiatives, has implemented key strategic sourcing contract
vehicles (e.g., prime-vendor, national contracts, VA FSS). If these
strategic sourcing contracts were subject to the VA Rule of Two, they
may be determined mandatory by the head of the contracting activity.
Contracting officers shall consider these priority contract vehicles
before using other existing contract vehicles.
Subpart 808.4--Federal Supply Schedules
808.402 General.
(a) GSA has delegated authority to the VA to procure medical
equipment, supplies, services and pharmaceuticals under the VA Federal
Supply Schedule (FSS) program. The VA FSS program includes medical
supplies in Federal Supply Classification (FSC) Groups 65 and 66 and
services in FSC 621 for Professional and Allied Healthcare Staffing
Services and Medical Laboratory Testing and Analysis Services.
808.404 Use of Federal Supply Schedules.
808.404-70 Use of Federal Supply Schedules--the Veterans First
Contracting Program.
(a) The Veterans First Contracting Program, implemented in subpart
819.70 pursuant to 38 U.S.C 8127-8128, applies to BPAs, and orders
under FAR subpart 8.4 and has precedence over other small business
programs.
(b) Contracting officers, when establishing a BPA or placing an
order against the FSS, shall ensure that priorities for veteran-owned
small businesses are implemented within the VA hierarchy of small
business program preferences in subpart 819.70. Specifically, the
contracting officer will consider preferences for verified SDVOSBs
first, then preferences for verified VOSBs. These priorities will be
followed by preferences for other small businesses in accordance with
819.7005.
(c) If unable to satisfy requirements for supplies and services
from the mandatory sources in 808.002 and 808.004-70, contracting
officers may consider commercial sources in the open market (see FAR
8.004(b)) if an open market acquisition is most appropriate (see FAR
8.004) and a VA Rule of Two determination is made (see subpart 819.70).
(d) When the servicing agency will award contracts under an
interagency agreement on behalf of the VA, the contracting officer
shall ensure the interagency acquisition complies with FAR subpart 17.5
and subpart 817.5 and includes terms requiring compliance with the VA
Rule of Two (see 817.501).
808.405 Ordering procedures for Federal Supply Schedules.
808.405-70 Set-aside procedures for VA and GSA Federal Supply
Schedules.
To satisfy VA legislative requirements, contracting officers shall
use the supplemental ordering procedures of this section when
establishing a BPA or placing an order for supplies or services under
this subpart as follows:
(a) When market research supports set-asides. Pursuant to 38 U.S.C.
8127, contracting activities shall set-aside BPAs and orders for VIP-
listed SDVOSBs or VOSBs when, based on research, the contracting
officer has a reasonable expectation that two or more small business
concerns owned and controlled by Veterans or owned and controlled by
Veterans with service-connected disabilities will submit offers and
that award can be made at a fair and reasonable price that offers best
value to the United States. When the VA Rule of Two is met:
(1) The set-aside requirements as provided in 819.7006 and 819.7007
are mandatory.
(2) The requirements in FAR 8.405-1, 8.405-2, and 8.405-3, apply,
except only quotes received from verified (i.e., VIP-listed) and
eligible SDVOSBs or VOSBs will be considered.
(3) The eligibility requirements of 819.7003, 819.7006, and
819.7007 apply, including the requirement for offerors to be VIP-listed
at the time they submit offers/quotes as well as at the time awards are
made.
(4) The contracting officer shall notify potential offerors of the
unique VA verification requirements by including in the solicitation
the applicable set-aside clause prescribed at 819.7011.
(b) When market research does not support set-asides. Pursuant to
38
[[Page 13612]]
U.S.C. 8128 and to the extent that market research does not support an
SDVOSB or VOSB set-aside in either FSS or the open market, the
contracting activity shall give priority in the award of orders placed
under this part to VIP-listed SDVOSBs/VOSBs through the use of
evaluation preferences giving priority to SDVOSBs first, then to a
lesser extent VOSBs, and finally to any firm that proposes to use
SDVOSBs/VOSBs as subcontractors. Contracting officers must use the
clause prescribed in 808.405-570(b).
(c) SDVOSB/VOSB eligibility requirements. The SDVOSB and VOSB
eligibility requirements in 819.7003 apply, including current SDVOSB
and VOSB VIP-listed status at the time of submission of offer/quote and
at time of award. The offeror must also represent that it meets the
small business size standard for the assigned NAICS as well as other
small business requirements (including completing the certification
found in 852.219-75 or 852.219-76.
808.405-570 Small business set-asides and preferences--Veterans First
Contracting Program clauses.
(a) When setting aside an order pursuant to 808.405-70(a), the
applicable clause prescribed in 819.7011 for SDVOSB/VOSB set-asides
shall be used.
(b) When an SDVOSB/VOSB set-aside is not feasible, the ordering
activity shall use the clause at 852.208-70, Service-Disabled Veteran-
Owned and Veteran-Owned Small Business Evaluation Factors--Orders or
BPAs, for task orders, delivery orders or BPAs using evaluation factors
other than price alone.
(c) The ordering activity shall insert the clause at 852.208-71,
Service-Disabled Veteran-Owned and Veteran-Owned Small Business
Evaluation Factor Commitments--Orders or BPAs, in request for quotes
and resulting orders that include clause 852.208-70, Service-Disabled
Veteran-Owned and Veteran-Owned Small Business Evaluation Factors--
Orders or BPAs.
Subpart 808.6--Acquisition from Federal Prison Industries, Inc.
808.603 Purchase priorities.
A waiver from Federal Prison Industries is not needed when
comparable supplies and services are procured in accordance with
subpart 819.70.
Subpart 808.8 [Reserved]
0
5. Part 810 is revised to read as follows:
PART 810--MARKET RESEARCH
Sec.
810.000 Scope of part.
810.001 Policy.
810.001-70 Market research policy--use of VA Vendor Information
Pages.
Authority: 38 U.S.C. 8127-8128; 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.
810.000 Scope of part.
The Veterans First Contracting Program in subpart 819.70 applies to
contract actions under this part and takes precedence over other small
business programs referenced in FAR part 10 and FAR part 19.
810.001 Policy.
810.001-70 Market research policy--use of VA Vendor Information Pages.
When performing market research, contracting officers shall review
the Vendor Information Pages (VIP) database at https://www.vetbiz.va.gov/vip/ as required by subpart 819.70. The contracting
officer will search the VIP database by applicable North American
Industry Classification System (NAICS) codes to determine whether two
or more verified service-disabled veteran-owned small businesses
(SDVOSBs) and/or veteran-owned small businesses (VOSBs), with the
appropriate NAICS code, are listed as verified in the VIP database. The
contracting officer will determine, among other things as the
requirement dictates, whether VIP-listed SDVOSBs or VOSBs identified as
a result of market research are capable of performing the work, are
likely to submit an offer/quote, and whether an award can be made at a
fair and reasonable price that offers best value to the Government. The
contracting officer shall use the market research for acquisition
planning purposes, and as set forth in VAAR subpart 819.70, conduct a
VA Rule of Two determination in accordance with the contracting order
of priority (see 819.7005 and 819.7006).
PART 813--SIMPLIFIED ACQUISITION PROCEDURES
0
6.The authority citation for part 813 continues to read as follows:
Authority: 38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C. 1702
and 48 CFR 1.301 through 1.304.
0
7. Revise section 813.003-70 to read as follows:
813.003-70 General policy.
(a) The Veterans First Contracting Program in subpart 819.70
applies to VA contracts, orders and BPAs under this part and has
precedence over other small business programs referenced in FAR parts
13 and 19. For VA policy regarding mandatory Government sources, refer
to 808.002.
(b) Notwithstanding FAR 13.003(b)(2), the contracting officer shall
make an award utilizing the priorities for veteran-owned small
businesses as implemented within the VA hierarchy of small business
program preferences, the Veterans First Contracting Program in subpart
819.70. 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 businesses in accordance with 819.7005.
(c) When using competitive procedures, the preference for
restricting competition to verified SDVOSBs/VOSBs in accordance with
paragraph (b) of this section is mandatory whenever market research
provides a reasonable expectation of receiving two or more offers/
quotes from eligible, capable and verified firms, and that an award can
be made at a fair and reasonable price that offers best value to the
Government.
(1) Pursuant to 38 U.S.C. 8127, contracts under this part shall be
set-aside for SDVOSBs/VOSBs, in accordance with 819.7006 or 819.7007
when supported by market research. Contracting officers shall use the
applicable set-aside clause prescribed at 819.7011.
(2) Pursuant to 38 U.S.C. 8128 and to the extent that market
research does not support an SDVOSB or VOSB set-aside, the contracting
officer shall include evaluation factors as prescribed at 815.304-70
and the evaluation criteria clause prescribed at 815.304-71(a).
(d) The SDVOSB and VOSB eligibility requirements in 819.7003 apply,
including verification of the SDVOSB and VOSB status of an offeror, and
other small business requirements in 13 CFR part 121 and 13 CFR 125.6
(e.g., small business representation, nonmanufacturer rule, and
subcontracting limitations (see 819.7004 and 819.7011)).
Subpart 813.1--Procedures.
0
8. Revise section 813.106 to read as follows:
[[Page 13613]]
813.106 Soliciting competition, evaluation of quotations or offers,
award and documentation.
813.106-70 Soliciting competition, evaluation of quotations or offers,
award and documentation--the Veterans First Contracting Program.
(a) When using competitive procedures under this part, the
contracting officer shall use the Veterans First Contracting Program in
subpart 819.70 and the guidance set forth in 813.003-70.
(b) Pursuant to 38 U.S.C 8127(b), contracting officers may use
other than competitive procedures to enter into a contract with a
verified SDVOSB or VOSB for procurements below the simplified
acquisition threshold, as authorized by FAR 6.302-5 and 806.302-570(a)
and (b).
(c) For procurements above the simplified acquisition threshold,
pursuant to 38 U.S.C. 8127(c), contracting officers may also award a
contract under this part to a firm verified under the Veterans First
Contracting Program at subpart 819.70, using procedures other than
competitive procedures, as authorized by FAR 6.302-5 and 806.302-570(a)
and (c), and in accordance with 819.7008 and 819.7009.
0
9. Part 819 is revised to read as follows:
PART 819--SMALL BUSINESS PROGRAMS
Sec.
819.000 Scope of part.
Subpart 819.2--Policies.
819.201 General policy.
819.202 Specific policies.
819.203 Relationship among small business programs.
819.203-70 Priority for SDVOSB/VOSB contracting preferences.
Subpart 819.3--Determination of Small Business Size and Status for
Small Business Programs
819.307 Protesting a firm's status as a service-disabled veteran-
owned small business concern.
819.307-70 SDVOSB/VOSB status protests.
Subpart 819.5--Small Business Total Set-Asides, Partial Set-Asides, and
Reserves
819.501 General.
819.501-70 General principles for setting aside VA acquisitions.
819.502 Setting aside acquisitions.
819.502-1 Requirements for setting aside acquisitions.
819.502-2 Total small business set-asides.
819.507 Solicitation provisions and contract clauses.
819.507-70 Additional VA solicitation provisions and contract
clauses.
Subpart 819.6--[Reserved]
Subpart 819.7--The Small Business Subcontracting Program
819.704-70 VA subcontracting plan requirements.
819.708 Contract clauses.
Subpart 819.8--Contracting With the Small Business Administration (the
8(a) Program)
819.800 General.
819.811 Preparing the contracts.
819.811-370 VA/SBA Partnership Agreement and contract clauses.
Subpart 819.70--The VA Veterans First Contracting Program
819.7001 General.
819.7002 Applicability.
819.7003 Eligibility.
819.7004 Limitations on subcontracting compliance requirements.
819.7005 Contracting order of priority.
819.7006 VA service-disabled veteran-owned small business set-aside
procedures.
819.7007 VA veteran-owned small business set-aside procedures.
819.7008 Sole source awards to verified service-disabled veteran-
owned small businesses.
819.7009 Sole source awards to verified veteran-owned small
businesses.
819.7010 Tiered set-aside evaluation.
819.7011 Contract clauses.
Subpart 819.71--[Reserved]
Authority: 15 U.S.C. 631, et seq.; 15 U.S.C. 637(d)(4)(E); 38
U.S.C. 8127-8128; 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.
819.000 Scope of part.
(a) This part supplements FAR part 19 and implements the service-
disabled veteran-owned small business (SDVOSB), veteran-owned small
business (VOSB) and small business provisions of title 38 U.S.C. 8127
and 8128, Executive Order 13360 and the Small Business Act (15 U.S.C.
631 et. seq.) as applied to the Department of Veterans Affairs (VA).
This part also covers--
(1) Goals for using SDVOSBs, and VOSBs;
(2) Priorities and preferences for using SDVOSBs/VOSBs;
(3) SDVOSB/VOSB eligibility and contract compliance;
(4) Setting aside acquisitions for SDVOSBs/VOSBs;
(5) Sole-source awards to SDVOSBs and VOSBs; and
(6) Evaluation preferences and contract clauses.
Subpart 819.2--Policies
819.201 General policy.
(a) It is VA policy that small business concerns owned and
controlled by veterans shall have maximum practicable opportunity to
participate in VA acquisitions, consistent the priorities and
preferences prescribed under the Veterans First Contracting Program in
subpart 819.70.
(1) To carry out this policy the Secretary shall establish annual
SDVOSB and VOSB contracting goals.
(2) In support of these goals, each administration and staff office
shall in turn establish annual goals for each subordinate contracting
activity that present, for that activity, the maximum practicable
opportunity for small business concerns, and particularly SDVOSBs/
VOSBs, to participate in the performance of the activity's contracts
and subcontracts.
(3) The attainment of these goals or the use of interagency
acquisition vehicles does not limit the applicability of the Veterans
First Contracting Program and priorities in subpart 819.70.
(c) In addition to the duties and responsibilities in FAR
19.201(c), the Executive Director, Office of Small and Disadvantaged
Business Utilization (OSDBU), is responsible for overseeing
implementation of the Veterans First Contracting Program under subpart
819.70.
(d) Each organization with contracting authority shall designate
small business specialists/technical advisors in coordination with the
OSDBU Director.
819.202 Specific policies.
OSDBU is responsible for reviewing procurement strategies,
establishing thresholds for such reviews and making recommendations to
assist contracting officers in the implementation of this part. These
responsibilities shall be conducted within the VA hierarchy of small
business program preferences established by 38 U.S.C. 8127(h) (see
subpart 819.70), which requires VA to consider preferences for VIP-
listed SDVOSBs first, then preferences for VIP-listed VOSBs.
Contracting officers shall use VA Form 2268, Small Business Program and
Contract Bundling Review, to document actions and recommendations.
819.203 Relationship among small business programs.
819.203-70 Priority for SDVOSB/VOSB contracting preferences.
(a) 38 U.S.C. 8127 and 8128 require the VA to provide priority and
establish special acquisition methods to increase contracting
opportunities for SDVOSBs/VOSBs. These priorities and special
acquisition methods are set forth in subpart 819.70 and shall be
applied by contracting officers before other
[[Page 13614]]
priorities and preferences in FAR 19.203.
(b) Pursuant to 38 U.S.C. 8128, contracting officers shall give
priority to SDVOSBs/VOSBs if such business concern(s) also meet the
requirements of that contracting preference. This requirement applies
even when using a contracting preference under FAR part 19 (for
example, a women-owned small business set-aside).
Subpart 819.3--Determination of Small Business Size and Status for
Small Business Programs
819.307 Protesting a firm's status as a service-disabled veteran-owned
small business concern.
819.307-70 SDVOSB/VOSB status protests.
All protests relating to size, status and/or whether an SDVOSB or a
VOSB is a ``small business'' are subject to the Small Business
Administration (SBA) regulations at 13 CFR part 121 and must be filed
in accordance with SBA guidelines at 13 CFR part 134 (see FAR subpart
19.3). Pursuant to Public Law 114-328, SBA will hear cases related to
size and status, including ownership and control challenges under the
VA Veterans First Contracting Program (see 38 U.S.C. 8127(f)(8)).
Subpart 819.5--Small Business Total Set-Asides, Partial Set-Asides,
and Reserves
819.501 General.
819.501-70 General principles for setting aside VA acquisitions.
(a) The following principles apply to VA acquisitions under this
subpart:
(1) Before setting aside or reserving an acquisition for small
businesses under FAR subpart 19.5, contracting officers shall refer to
808.002, 819.203-70 and subpart 819.70 for VA SDVOSB/VOSB priorities
and preferences.
(2) Set-asides under the Veterans First Contracting Program in
subpart 819.70 (see 819.7006 and 819.7007) have precedence over other
small business set-asides authorized in FAR part 19, both above and
below the simplified acquisition threshold (SAT). An SDVOSB/VOSB set-
aside satisfies the legislative requirement to reserve actions below
the SAT for small business.
(3) Pursuant to 38 U.S.C. 8127(d), set-asides for SDVOSBs/VOSBs are
mandatory whenever a contracting officer has a reasonable expectation
of receiving two or more offers/quotes from eligible, capable and
verified firms, and that an award can be made at a fair and reasonable
price that offers best value to the Government. (VA Rule of Two).
(b) The set-aside principles in this section apply to VA
acquisitions even when a procuring activity is meeting its goals or is
planning the use of an interagency agreement, Federal Supply Schedule,
or a multiple award contract, including a Governmentwide contract
vehicle.
(c) The requirements in this subsection apply to all VA
acquisitions under this subpart, including reserves, orders and BPAs
under multiple award contracts, GSA Federal Supply Schedule contracts
and Multi-Agency Contracts (MACs) awarded by another agency. A set-
aside restricted to SDVOSBs/VOSBs pursuant to subpart 819.70 satisfies
competition requirements in FAR part 6, as well as fair opportunity
requirements for orders under multiple-award contracts (see FAR
16.505(b)(2)(i)(F)).
819.502 Setting aside acquisitions.
819.502-1 Requirements for setting aside acquisitions.
(b) Contracting officers shall refer to 808.002 for the VA policy
regarding priorities for use of SDVOSBs/VOSBs and mandatory Government
sources.
819.502-2 Total small business set-asides.
(a) If the contracting officer receives no acceptable offers from
responsible small business concerns, the set-aside shall be withdrawn
and the requirement, if still valid, shall be resolicited on an
unrestricted basis or, if permitted in the solicitation, the
contracting officer will follow the tiered set-aside evaluation
procedures in 819.7010, Tiered evaluation, and proceed to the next
eligible tier in the evaluation process.
819.507 Solicitation provisions and contract clauses.
819.507-70 Additional VA solicitation provisions and contract clauses.
For contracts, orders or BPAs to be issued as SDVOSB/VOSB reserve,
tiered evaluation, set-aside or sole source, see 819.7011. Also see
subparts 808.4, 815.3, and 819.203-70 for requirements and clauses
applicable to VA small business set-asides.
Subpart 819.6--[Reserved]
Subpart 819.7--The Small Business Subcontracting Program
819.704-70 VA subcontracting plan requirements.
(a) VA's current subcontracting goals, at a minimum, shall be
inserted into all solicitations which contain FAR clause 52.219-9. To
the maximum extent possible, the contracting officer shall ensure that
individual subcontracting plans submitted by offerors subject to clause
852.219-70, VA Small Business Subcontracting Plan Minimum Requirements,
include SDVOSB/VOSB goals that are commensurate with the annual VA
SDVOSB/VOSB subcontracting goals (see 819.708).
(1) Only firms listed as verified on the Vendor Information Pages
(VIP) database (see subpart 819.70) will count towards SDVOSB and VOSB
goals.
(2) A contractor may reasonably rely on a subcontractor's status as
shown in the VIP database as of the date of subcontract award, provided
the contractor retains records of the results of the VIP database
query.
(3) In furtherance of 38 U.S.C. 8127(a)(4), contractors shall
submit subcontracting plan reports to OSDBU as set forth in clause
852.219-70, VA Small Business Subcontracting Plan Minimum Requirements.
Unless otherwise directed by OSDBU, VA Form 0896A, Report of
Subcontracts to Small and Veteran Owned Business, shall be used to
submit the required information.
(b) Subcontracting goals should be expressed as a percentage of
total dollars to be subcontracted unless otherwise stated in the
solicitation.
(c) If an offeror proposes to use an SDVOSB/VOSB subcontractor for
the purpose of receiving SDVOSB/VOSB evaluation factors credit pursuant
to 808.405-70 or 815.304-70, the contracting officer shall ensure that
the offeror, if awarded the contract, actually uses the proposed
subcontractor or another SDVOSB/VOSB for that subcontract or for work
of similar value, in accordance with clause 852.208-70, Service-
Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation
Factors--Orders or BPAs or 852.215-71, Evaluation Factor Commitments.
(d) Pursuant to 38 U.S.C. 8127(g), any business concern that is
determined by VA to have willfully and intentionally misrepresented a
company's SDVOSB or VOSB status is subject to debarment from
contracting with the Department for a period of not less than five
years. This includes the debarment of all principals in the business
(see 809.406-270, Additional causes for debarment).
819.708 Contract clauses.
(b) The contracting officer shall insert clause 852.219-70, Small
Business Subcontracting Plan Minimum Requirements, in solicitations and
contracts that include FAR clause 52.219-9, Small Business
Subcontracting Plan.
[[Page 13615]]
Subpart 819.8--Contracting With the Small Business Administration
(the 8(a) Program)
819.800 General.
(e) The Small Business Administration (SBA) and the Department of
Veterans Affairs (VA) have entered into a Partnership Agreement
delegating SBA's contract execution and administrative functions to VA.
Contracting officers shall follow the alternate procedures in the
Partnership Agreement and this subpart, as applicable, to award an 8(a)
contract. In the event the Partnership Agreement ceases to be in
effect, contracting officers shall follow the procedures in FAR subpart
19.8.
819.811 Preparing the contracts.
819.811-370 VA/SBA Partnership Agreement and contract clauses.
(a) Before placing new requirements under the 8(a) program, the
contracting officer must determine whether an SDVOSB/VOSB set-aside is
mandated under the VA Rule of Two (see 802.101, Definitions). If the
determination does not result in an SDVOSB/VOSB set-aside, the
contracting officer may consider the 8(a) program.
(b) The Partnership Agreement provides that SBA can release
procurements already in the program whenever an SDVOSB or VOSB set-
aside is feasible.
(c) When an 8(a) acquisition is processed pursuant to the
Partnership Agreement, the contracting officer shall:
(1) For competitive solicitations and awards, use the clause at
852.219-71, VA Notification of Competition Limited to Eligible 8(a)
Participants, substituting paragraph (c) of FAR 52.219-18 Notification
of Competition Limited to Eligible 8(a) Participants. with the
paragraph (c) contained in 852.219-71.
(2) For noncompetitive solicitations and awards insert the clause
at 852.219-72, Notification of Section 8(a) Direct Awards, instead of
the prescribed FAR clauses at 52.219-11, Special 8(a) Contract
Conditions; 52.219-12, Special 8(a) Subcontract Conditions; and 52.219-
17, Section 8(a) Award.
(3) In all instances, contracting include the clause at FAR 52.219-
14, Limitations on Subcontracting, or if applicable 52.219-33
Nonmanufacturer Rule.
Subpart 819.70--The VA Veterans First Contracting Program
819.7001 General.
(a) Sections 502 and 503 of Public Law 109-461, the Veterans
Benefits, Health Care, and Information Technology Act of 2006, as
amended (38 U.S.C. 8127-8128), authorizes a VA specific program to
increase contracting opportunities for eligible small business concerns
owned and controlled by Veterans with service-connected disabilities
and small business concerns owned and controlled by Veterans. Once
ownership and control by these veterans is verified, these businesses
are referred to as service-disabled veteran-owned small businesses
(SDVOSBs) and veteran-owned small businesses (VOSBs) or collectively
SDVOSB/VOSB for ease of reference.
(b) The program as implemented in this subpart shall be known as
the Veterans First Contracting Program. The purpose of the program is
to increase contracting opportunities and provide for priority in the
award of contracts and subcontracts to SDVOSBs/VOSBs so they can fully
participate in the VA contracting process. Eligible SDVOSBs qualify for
any VOSB preferences under this subpart.
(c) 38 U.S.C. 8127 (b), (c), and (d) provide the authority for VA
contracting officers to make awards to SDVOSBs/VOSBs using restricted
competition, as well as other than full and open competition (sole
source), as set-forth in this subpart. 38 U.S.C. 8128 provides the
authority for VA to give SDVOSBs/VOSBs priority in the awarding of
contracts and subcontracts using evaluation preferences.
(d) Contracting officers shall award contracts by restricting
competition to eligible SDVOSBs/VOSBs as provided in 819.7006 and
819.7007. The contracting officer may use other preferences in this
subpart as appropriate and in accordance with procuring activity
guidelines.
(e) Pursuant to 38 U.S.C. 8128, contracting officers shall give
priority to SDVOSBs/VOSBs if such business concern(s) also meet the
requirements of that contracting preference. In carrying out this
responsibility, contracting officers shall include the clauses
prescribed at 808.405-570 and 815.304-71 in competitive solicitations
and contracts that are not set-aside for SDVOSB/VOSB, including those
under FAR part 12. This requirement applies even when using a
contracting preference under FAR part 19 (for example, a women-owned
small business set-aside).
(f) The attainment of goals or the use of interagency vehicles or
Governmentwide contract vehicles (i.e., Federal Supply Schedules (FSS))
does not relieve the contracting officer from using SDVOSB/VOSB set-
asides and other preferences as provided in subpart 819.70. Moreover,
if the VA enters into a contract, agreement, or other arrangement with
any Governmental entity to acquire goods or services, the entity acting
on behalf of the VA through such an interagency acquisition or other
agreement will comply, to the maximum extent feasible, with the
provisions of the Veterans First Contracting Program as set forth in
this subpart.
(g) Contracting officers shall ensure awards are made using the VA
hierarchy of SDVOSB/VOSB preferences in this subpart. Specifically, the
contracting officer will consider preferences for eligible SDVOSBs
first, then preferences for other eligible VOSBs.
(h) When an offer of an SDVOSB/VOSB prime contractor includes a
proposed team of small business subcontractors and specifically
identifies the first-tier subcontractor(s) in the proposal, the
contracting officer must consider the capabilities, past performance,
and experience of each first tier subcontractor that is part of the
team as the capabilities, past performance, and experience of the small
business prime contractor if the capabilities, past performance, and
experience of the small business prime does not independently
demonstrate capabilities and past performance necessary for award.
819.7002 Applicability.
Unless otherwise exempted by law, this subpart applies to VA
contracting activities and contracts (see FAR 2.101, Definitions)
including BPAs and orders under FAR subpart 8.4 and commercial
acquisitions under FAR part 12. In addition, this subpart applies to VA
contractors, their subcontractors and to any Government entity that has
a contract, agreement, or other arrangement with the VA to acquire
goods and services on behalf of the VA (see 817.502). For applicability
and VA policy regarding priorities for use of mandatory Government
sources, see 808.002.
819.7003 Eligibility.
(a) SDVOSB/VOSB size eligibility, challenges and appeals are
governed by the Small Business Administration (SBA) regulations at 13
CFR parts 121,125, and 134, except where directed otherwise by this
part or 38 CFR part 74, Veterans Small Business Regulations.
(b) At the time of submission of offers/quotes, and at the time of
award of any contract, the offeror must represent to the contracting
officer that it is a--
(1) SDVOSB or VOSB eligible under this subpart;
[[Page 13616]]
(2) Small business concern under the North American Industry
Classification System (NAICS) code assigned to the acquisition; and
(3) Listed as a verified SDVOSB/VOSB on the VA's Vendor Information
Pages (VIP) at https://www.vetbiz.va.gov/vip/.
(c) A joint venture may be considered eligible if it meets the
requirements in 13 CFR part 125; and the joint venture is listed in the
VIP database.
(d) To receive a benefit under the Veterans First Contacting
Program, an otherwise eligible SDVOSB/VOSB must also meet SBA
requirements at 13 CFR part 121, Small Business Size Regulations and 13
CFR part 125, Government Contracting Programs, including the
nonmanufacturer rule requirements at 13 CFR 121.406(b) and limitations
on subcontracting at 13 CFR 125.6. The nonmanufacturer rule (see 13 CFR
121.406) and the limitations on subcontracting requirements apply to
all SDVOSB and VOSB set-aside and sole source contracts above the
micro-purchase threshold. An offeror shall submit a certification of
compliance to be considered eligible for any award under this part (see
819.7004).
(e) Pursuant to 38 U.S.C. 8127(g), any business concern that is
determined by VA to have willfully and intentionally misrepresented a
company's SDVOSB/VOSB status is subject to debarment from contracting
with the Department for a period of not less than five years. This
includes the debarment of all principals in the business. See 809.406-
270, Additional causes for debarment.
819.7004 Limitations on subcontracting compliance requirements.
(a) A contract awarded under this subpart is subject to the SBA
limitations on subcontracting requirements in 13 CFR 125.6, provided
that--
(1) Only VIP-listed SDVOSBs are considered eligible and/or
``similarly situated'' under an SDVOSB sole source or set-aside.
(2) A VOSB is subject to the same limitations on subcontracting
that apply to an SDVOSB.
(3) Any VIP-listed SDVOSB/VOSB is considered eligible and/or
``similarly situated'' under a VOSB sole source or set-aside.
(b) Pursuant to the authority of 38 U.S.C. 8127(k)(2), a
contracting officer may award a contract under this subpart only after
obtaining from the offeror a certification that the offeror will comply
with the limitations on subcontracting requirement as provided in the
solicitation and which shall be included in the resultant contract (see
819.7011).
(1) The formal certification must be completed, signed and returned
with the offeror's bid, quotation, or proposal.
(2) The Government will not consider offers for award from offerors
that do not provide the certification with their bid, quotation, or
proposal, and all such responses will be deemed ineligible for
evaluation and award.
(c) An otherwise eligible first tier subcontractor must meet the
NAICS size standard assigned by the prime contractor and be listed in
VIP to count as similarly situated. Any work that a first tier VIP-
listed subcontractor further subcontracts will count towards the
percent of subcontract amount that cannot be exceeded.
(d) An SDVOSB/VOSB awarded a contract on the basis of a set-aside,
sole source, or an evaluation preference is required to comply with the
limitations on subcontracting either by--
(1) The end of the base term, and then by the end of each
subsequent option period; or, by the end of the performance period for
each order issued under the contract, at the contracting officer's
discretion; and
(2) For an order set aside for SDVOSB/VOSB as described in 808.405
and FAR 16.505(b)(2)(i)(F), or for an order issued directly to an
SDVOSB/VOSB in accordance with FAR 19.504(c)(1)(ii), by the end of the
performance period for the order.
(e) The contracting officer may also, at their discretion, require
the contractor to demonstrate its compliance with the limitations on
subcontracting at any time during performance of the contract, and upon
completion of a contract if the information regarding such compliance
is not already available to the contracting officer. Evidence of
compliance includes, but is not limited to, invoices, copies of
subcontracts, or a list of the value of tasks performed.
(f) Pursuant to Public Law 116-183, the Office of the Small and
Disadvantaged Business Utilization (OSDBU) and Chief Acquisition
Officer (CAO), will implement a process to monitor compliance with the
requirement in this section. The OSDBU and CAO shall jointly refer any
violations or suspected violations to the VA Office of Inspector
General. This referral obligation does not relieve contracting officers
of their obligation to report suspected violations of law to the OIG.
(1) If the Secretary or designee determines in consultation with
the Inspector General that an SDVOSB/VOSB awarded a contract pursuant
to 38 U.S.C. 8127 did not act in good faith with respect to the
requirements described in 819.7003 paragraph (d), such SDVOSB/VOSB
shall be subject to any or all of the following--
(i) Referral to the VA Suspension and Debarment Committee;
(ii) A fine under section 16(g)(1) of the Small Business Act (15
U.S.C. 645(g)(1)); and
(iii) Prosecution for violating section 1001 of title 18.
(2) The Inspector General shall report to the Congress annually on
the number of referred violations and suspected violations, and the
disposition of such violations, including the number of small business
concerns suspended or debarred from federal contracting or referred for
Department of Justice prosecution.
819.7005 Contracting order of priority.
(a) In determining the acquisition strategy applicable to a
procurement requirement not otherwise covered under 808.002, the
contracting officer shall observe the order of contracting preferences
in 38 U.S.C. 8127(h).
(b) Specifically, preferences for awarding contracts to small
business concerns shall be applied in the following order of priority:
(1) Contracts awarded to small business concerns owned and
controlled by Veterans with service-connected disabilities as provided
in this subpart.
(2) Contracts to small business concerns owned and controlled by
Veterans that are not covered by paragraph (a)(1) of this section as
provided in this subpart.
(3) Contracts awarded pursuant to--
(i) Section 8(a) of the Small Business Act (15 U.S.C. 637(a) as
provided in FAR subpart 19.8--Contracting with the Small Business
Administration (The 8(a) Program); or
(ii) Section 31 of the Small Business Act (15 U.S.C. 657a) as
provided in FAR subpart 19.13--Historically Underutilized Business Zone
(HUBZone) Program.
(4) Contracts awarded pursuant to any other small business set
aside contracting preference, with due deference to the priority for
awarding to Women-owned small businesses as provided in FAR 19.203(b)
through (e) and FAR subpart 19.15.
819.7006 VA service-disabled veteran-owned small business set-aside
procedures.
(a) The contracting officer shall consider SDVOSB set-asides before
considering VOSB set-asides. Except as authorized by 808.002, 813.106,
819.7007, and 819.7008, the contracting officer shall set-aside a
contract action exceeding the micro-purchase threshold
[[Page 13617]]
for competition restricted to VIP-listed SDVOSB upon a reasonable
expectation based on market research that--
(1) Offers/quotations will be received from two or more eligible
VIP-listed SDVOSBs; and
(2) Award can be made at a fair and reasonable price that offers
the best value to the Government.
(b) When conducting SDVOSB set-asides, the contracting officer
shall ensure that--
(1) Offerors are registered and verified as eligible in the VIP
database at the time of submission of offers and at time of award; and
(2) Offerors affirmatively represent their SDVOSB and small
business status based on the size standard corresponding to the North
American Industrial Classification System (NAICS) code assigned to the
solicitation/contract, as set forth in 819.7003(b) or (c).
(c) If the contracting officer receives only one acceptable offer
at a fair and reasonable price from an eligible VIP-listed SDVOSB, the
contracting officer may make an award to that concern. If the
contracting officer receives no acceptable offers from eligible
SDVOSBs, the set-aside shall be withdrawn and the requirement, if still
valid, set aside for VOSB competition if warranted or otherwise
procured using the most appropriate strategy based on the results of
market research.
819.7007 VA veteran-owned small business set-aside procedures.
(a) The contracting officer shall consider SDVOSB set-asides before
considering VOSB set-asides. Except as authorized by 808.002, 813.106,
819.7007, and 819.7008, the contracting officer shall set aside a
contract action exceeding the micro-purchase threshold for competition
restricted to VIP-listed VOSBs upon a reasonable expectation based on
market research that--
(1) Offers/quotations will be received from two or more VIP-listed
VOSBs; and
(2) Award can be made at a fair and reasonable price that offers
the best value to the Government.
(b) When conducting VOSB set-asides, the contracting officer shall
ensure that--
(1) Offerors are registered and verified as eligible in the VIP
database at the time of submission of offers and at time of award; and
(2) Offerors affirmatively represent their SDVOSB/VOSB and small
business status based on the size standard corresponding to the NAICS
code assigned to the solicitation/contract (see 819.7003(b) and (c)).
(c) If the contracting officer receives only one acceptable offer
at a fair and reasonable price from an eligible VIP-listed VOSB in
response to a VOSB set-aside, the contracting officer may make an award
to that concern. If the contracting officer decides not to make an
award to the single acceptable offer received, or if the contracting
officer receives no acceptable offers from eligible VOSBs, the set-
aside shall be withdrawn and the requirement, if still valid, set aside
for other small business programs in accordance with 819.7005 or
otherwise procured using the most appropriate strategy based on the
results of market research.
819.7008 Sole source awards to verified service-disabled veteran-
owned small businesses.
(a) A contracting officer may award a contract to a VIP-listed
service-disabled veteran-owned small business (SDVOSB) using other than
competitive procedures provided--
(1) The anticipated award price of the contract (including options)
will not exceed $5 million;
(2) The requirement is synopsized and the required justification
pursuant to FAR 6.302-5(c)(2)(ii) is posted in accordance with FAR part
5;
(3) The SDVOSB has been determined to be a responsible contractor
with respect to performance; and
(4) In the estimation of the contracting officer contract award can
be made at a fair and reasonable price that offers best value to the
Government.
(b) The contracting officer's determination to make a sole source
award is a business decision wholly within the discretion of the
contracting officer. To ensure that opportunities are available to the
broadest number of SDVOSBs, this authority is to be used only when in
the best interest of the Government.
(c) A determination that only one SDVOSB can meet the requirement
is not required. However, in accordance with FAR 6.302-5(c)(2)(ii),
contracts awarded using this authority shall be supported by a written
justification and approval described in FAR 6.303 and 6.304, as
applicable.
(d) When conducting a SDVOSB sole source acquisition, the
contracting officer shall ensure the business meets eligibility
requirements in 819.7003.
(e) A procurement requirement estimated to exceed the legislative
threshold of $5 million shall not be split or subdivided to permit the
use of this SDVOSB sole source authority.
819.7009 Sole source awards to verified veteran-owned small
businesses.
(a) A contracting officer may award a contract to a VIP-listed
veteran-owned small business (VOSB) using other than competitive
procedures provided--
(1) The anticipated award price of the contract (including options)
will not exceed $5 million;
(2) The requirement is synopsized and the required justification
pursuant to 6.302-5(c)(2)(ii) is posted in accordance with FAR part 5;
(3) The VOSB has been determined to be a responsible contractor
with respect to performance;
(4) In the estimation of the contracting officer contract award can
be made at a fair and reasonable price that offers best value to the
Government; and
(5) No responsible SDVOSB has been identified.
(b) The contracting officer's determination to make a sole source
award is a business decision wholly within the discretion of the
contracting officer. To ensure that opportunities are available to the
broadest number of VOSBs, this authority is to be used only when in the
best interest of the Government.
(c) A determination that only one VOSB can meet the requirement is
not required. However, in accordance with FAR 6.302-5(c)(2)(ii),
contracts awarded using this authority shall be supported by a written
justification and approval described in FAR 6.303 and 6.304, as
applicable.
(d) When conducting a VOSB sole source acquisition, the contracting
officer shall ensure the business meets eligibility requirements in
819.7003.
(e) A procurement requirement estimated to exceed the legislative
threshold of $5 million shall not be split or subdivided to permit the
use of this VOSB sole source authority.
819.7010 Tiered set-aside evaluation.
(a) Pursuant to the authority of 38 U.S.C. 8127 and under limited
circumstances as set forth in this section, contracting officers may
consider using a tiered set-aside evaluation approach to minimize
delays in the re-solicitation process.
(b) Tiered evaluation of offers is a procedure that may be used in
competitive negotiated acquisitions, including construction and
acquisitions for commercial products and commercial services when the
VA Rule of Two determination indicates a set-aside is required, but
other circumstances preclude a confident conclusion that an award can
be made at the SDVOSB or VOSB tier. The contracting officer--
(1) Solicits and receives offers from targeted tiers of small
business groups, with SDVOSB as the first tier and VOSB as the second
tier;
[[Page 13618]]
(2) Establishes a tiered order of priority for evaluating offers
that is specified in the solicitation; and
(3) If no award can be made at the first tier, evaluates offers at
the next lower tier, until award can be made.
(c) Market research, which shall be conducted and documented in
advance of issuing the solicitation, will inform which of the following
types of tiers will be included in the solicitation:
(1) Tiered evaluations limited to SDVOSBs or VOSBs;
(2) Tiered evaluations including 8(a) and HUBZone small businesses;
or
(3) Tiered evaluations including all other small business concerns.
(d) The tiered order of priority shall be consistent with 819.7005.
Consideration shall be given to HUBZone and 8(a) small business
concerns before evaluating offers from other small business concerns.
819.7011 Contract clauses.
(a) The contracting officer shall insert clause 852.219-73, VA
Notice of Total Set-Aside for Verified Service-Disabled Veteran-Owned
Small Businesses, or clause 852.219-74, VA Notice of Total Set-Aside
for Verified Veteran-Owned Small Businesses, as applicable, in
solicitations, orders and contracts that are set-aside, reserved,
evaluated or awarded under this subpart. This includes sole source
awards as well as multiple-award contracts when orders may be set aside
for SDVOSBs/VOSBs as described in 808.405 and FAR 19.504(c)(1)(ii).
(b) The contracting officer shall insert the clause at 852.219-75,
VA Notice of Limitations on Subcontracting--Certificate of Compliance
for Services and Construction, in solicitations and contracts for
services and construction, including BPAs, BOAs, and orders, for
acquisitions that are evaluated, set-aside, or awarded on a sole source
basis under this subpart. This includes orders awarded under multiple-
award contracts to SDVOSBs/VOSBs.
(c) The contracting officer shall insert the clause at 852.219-76,
VA Notice of Limitations on Subcontracting--Certificate of Compliance
for Supplies and Products, in solicitations and contracts for supplies
or products, including BPAs, BOAs, and orders, for acquisitions that
are to be awarded on the basis of an SDVOSB/VOSB set-aside, sole
source, or an evaluation preference under this subpart. This includes
orders awarded under multiple-award contracts to SDVOSBs/VOSBs. The
contracting officer shall appropriately tailor the clause as set forth
in paragraph (a)(2)(iii) of this section.
Subpart 819.71--[Reserved]
PART 832--CONTRACT FINANCING
0
10. The authority citation for part 832 continues to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1303, 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 832.9 [Removed and Reserved]
0
11. Remove and reserve subpart 832.9.
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
12. Revise the authority citation for part 852 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
852.207-70 [Removed and Reserved]
0
13. Remove and reserve section 852.207-70.
0
14. Add Section 852.208-70 to read as follows:
852.208-70 Service-Disabled Veteran-Owned and Veteran-Owned Small
Business Evaluation Factors--Orders or BPAs.
As prescribed in 808.405-570, insert the following clause:
SERVICE-DISABLED VETERAN-OWNED AND VETERAN-OWNED SMALL BUSINESS
EVALUATION FACTORS--ORDERS OR BPAs (DATE)
(a) In an effort to increase contracting opportunities for
Veterans, depending on the evaluation factors included in the
solicitation, VA will evaluate responses received based on the schedule
Contractor's VIP-verified service-disabled veteran-owned small
business/veteran-owned small business (SDVOSB/VOSB) status; and/or
their proposed use of VIP-listed SDVOSB/VOSB as subcontractors or
teaming partners.
(b) To receive credit under this clause a contractor or
subcontractor must be listed, at time of submission of offer/quotes and
at time of award, as an eligible SDVOSB/VOSB in the Vendor Information
Pages (VIP) database at https://www.vetbiz.va.gov/vip/.
(c) A VIP-listed SDVOSB schedule holder will receive full credit,
and a VIP-listed VOSB schedule holder will receive partial credit for
the SDVOSB/VOSB status evaluation factor.
(d) Offerors other than SDVOSBs or VOSBs proposing to use VIP-
listed SDVOSBs/VOSBs as subcontractors/teaming partners, will receive
some consideration under this evaluation factor. To receive
consideration, offerors must provide in their proposals:
(1) The name(s) and contact information of the VIP-listed
SDVOSB(s)/VOSB(s) with whom they intend to team or subcontract.
(2) A brief description of the proposed team or subcontractor(s)
arrangement.
(3) The approximate dollar value of the proposed teaming
arrangements or subcontract(s).
(4) Evidence of teaming partner/subcontractor's VIP database
registration and verification.
(e) Pursuant to 38 U.S.C. 8127(g), any business concern that is
determined by VA to have willfully and intentionally misrepresented a
company's SDVOSB/VOSB status is subject to debarment for a period of
not less than five years. This includes the debarment of all principals
in the business.
(End of clause)
0
15. Add section 852.208-71 to read as follows:
852.208-71 Service-Disabled Veteran-Owned and Veteran-Owned Small
Business Evaluation Factor Commitments--Orders and BPAs.
As prescribed in 808.405-570, insert the following clause:
SERVICE-DISABLED VETERAN-OWNED AND VETERAN-OWNED SMALL BUSINESS
EVALUATION FACTOR COMMITMENTS--ORDERS AND BPAs (DATE)
(a) The Contractor agrees, if selected on the basis of service-
disabled veteran-owned small business (SDVOSB) or veteran-owned small
business (VOSB) status, to comply with the eligibility requirements in
subpart 819.70, including the limitation on subcontracting requirements
at 13 CFR 125.6.
(b) The Contractor agrees, if selected for award on the basis of
teaming/subcontracting in accordance with 852.208-70, Service-Disabled
Veteran-Owned and Veteran-Owned Small Business Evaluation Factors--
Orders and BPAs, to use the evaluated firm(s) as proposed or if
approved by contracting officer to substitute one or more VIP-verified
SDVOSB/VOSB for work of the same or similar value.
(c) Pursuant to 38 U.S.C. 8127(g), any business concern that is
determined by VA to have willfully and intentionally misrepresented a
company's SDVOSB/VOSB status is subject to debarment for a period of
not less than five years. This includes the debarment of all principals
in the business.
[[Page 13619]]
(End of clause)
852.219-9 [Removed]
0
16. Remove Section 852.219-9.
0
17. Add section 852.219-70to read as follows:
852.219-70 VA Small Business Subcontracting Plan Minimum
Requirements.
As prescribed in 819.708, insert the following clause:
VA SMALL BUSINESS SUBCONTRACTING PLAN MINIMUM REQUIREMENTS (DATE)
(a) This clause does not apply to small business concerns.
(b) If the offeror is required to submit an individual
subcontracting plan, the minimum goals for award of subcontracts to VA
verified service-disabled veteran-owned small business and veteran-
owned small business SDVOSB/VOSB shall be at least commensurate with
the Department's annual SDVOSB/VOSB subcontracting goals.
(c) For a commercial plan, the minimum goals for award of
subcontracts to SDVOSB/VOSB shall be at least commensurate with the
Department's annual service-disabled veteran-owned small business and
veteran-owned small business subcontracting goals for the total value
of projected subcontracts to support the sales for the commercial plan.
(d) To be credited toward goal achievements, SDVOSB/VOSBs must be
verified as eligible in the VA's Vendor Information Pages (VIP)
database at https://www.vetbiz.va.gov/vip/. A contractor may reasonably
rely on a subcontractor's status as shown in the VIP database as of the
date of subcontract award, provided the contractor retains records of
the results of the VIP database query.
(e) The Contractor shall annually submit a listing of SDVOSB/VOSB
(for which credit toward goal achievement is to be applied) for review
by personnel in the Office of Small and Disadvantaged Business
Utilization. Use VA Form 0896A, Report of Subcontracts to Small and
Veteran-Owned Business.
(f) Pursuant to 38 U.S.C. 8127(g), any business concern that is
determined by VA to have willfully and intentionally misrepresented a
company's SDVOSB/VOSB status is subject to debarment for a period of
not less than five years. This includes the debarment of all principals
in the business.
(End of clause)
0
18. Revise section 852.219-71 to read as follows:
852.219-71 Notification of Competition Limited to Eligible 8(a)
Participants.
As prescribed in 819.811-370, when FAR 52.219-18, Notification of
Competition Limited to Eligible 8(a) Participants, is utilized, use
this clause in conjunction with the FAR clause.
NOTIFICATION OF COMPETITION LIMITED TO ELIGIBLE 8(a) PARTICIPANTS
(DATE)
Substitute paragraph (c) in FAR Clause 52.219-18 as follows:
(c) Any award resulting from this solicitation will be made
directly by the Contracting Officer to the successful 8(a) offeror.
Although SBA is not identified as such in the award form, SBA is still
the Prime Contractor. Contractor shall comply with the limitations on
subcontracting as provided in 13 CFR 125.6 and other 8(a) program
requirements, as set forth in 13 CFR part 124.
(End of clause)
0
19. Revise section 852.219-72 to read as follows:
852.219-72 Notification of Section 8(a) Direct Award.
As prescribed in 819.811-370, paragraph (a), insert the following
clause:
NOTIFICATION OF SECTION 8(a) DIRECT AWARD (DATE)
(a) Offers are solicited only from small business concerns
expressly certified by the Small Business Administration (SBA) for
participation in the SBA's 8(a) Program. By submission of its offer,
the Offeror represents that it is in good standing and that it meets
all of the criteria for participation in the program in accordance with
13 CFR part 124.
(b) Any award resulting from this solicitation will be made
directly by the Contracting Officer to the successful 8(a) offeror.
Although SBA is not identified as such in the award form, SBA is still
the Prime Contractor.
(c) This contract is issued as a direct award between the
contracting activity and the 8(a) Contractor pursuant to the
Partnership Agreement (PA) between the Small Business Administration
(SBA) and the Department of Veterans Affairs.
(d) SBA retains responsibility for 8(a) certification, 8(a)
eligibility determinations and related issues, and providing counseling
and assistance to the 8(a) Contractor under the 8(a) program. The
cognizant SBA district office is:
[To be completed by the Contracting Officer at the time of award]
(e) The contracting activity is responsible for administering the
contract and taking any action on behalf of the Government under the
terms and conditions of the contract. However, the contracting activity
shall give advance notice to the SBA before it issues a final notice
terminating performance, either in whole or in part, under the
contract. The contracting activity shall obtain SBA's approval prior to
processing any novation agreement(s). The contracting activity may
assign contract administration functions to a contract administration
office.
(f) The Contractor agrees:
(1) To notify the Contracting Officer, simultaneous with its
notification to SBA (as required by SBA's 8(a) regulations), when the
owner or owners upon whom 8(a) eligibility is based plan to relinquish
ownership or control of the concern.
(2) Consistent with 15 U.S.C. 637(a)(21), transfer of ownership or
control shall result in termination of the contract for convenience,
unless SBA waives the requirement for termination prior to the actual
relinquishing of ownership and control.
(3) It will adhere to the requirements of 52.219-14, Limitations of
Subcontracting and other requirements in 13 CFR part 124 and 13 CFR
125.6, as applicable
(g) Any proposed joint venture involving an 8(a) Participant must
be approved by SBA before contracts are awarded.
(End of clause)
852.219-10 [Removed]
0
20. Remove section 852.219-10.
0
21. Add section 852.219-73 to read as follows:
852.219-73 VA Notice of Total Set-Aside for Verified Service-Disabled
Veteran-Owned Small Businesses.
As prescribed in 819.7011, insert the following clause:
VA NOTICE OF TOTAL SET-ASIDE FOR VERIFIED SERVICE-DISABLED VETERAN-
OWNED SMALL BUSINESSES (DATE)
(a) Definition. For the Department of Veterans Affairs, ``Service-
disabled Veteran-owned small business concern or SDVOSB'':
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
service-disabled Veterans or, in the case of any publicly owned
business, not less than 51 percent of the stock of which is owned by
one or more service-disabled Veterans or eligible surviving spouses
(see VAAR 802.201, Surviving Spouse definition);
(ii) The management and daily business operations of which are
[[Page 13620]]
controlled by one or more service-disabled Veterans (or eligible
surviving spouses) or, in the case of a service-disabled Veteran with
permanent and severe disability, the spouse or permanent caregiver of
such Veteran;
(iii) The business meets Federal small business size standards for
the applicable North American Industry Classification System (NAICS)
code identified in the solicitation document;
(iv) The business has been verified for ownership and control
pursuant to 38 CFR part 74 and is listed in VA's Vendor Information
Pages (VIP) database at https://www.vetbiz.va.gov/vip/; and
(v) The business will comply with VAAR subpart 819.70 and Small
Business Administration (SBA) regulations regarding small business size
and government contracting programs at 13 CFR part 121 and 125,
provided that any reference therein to a service-disabled veteran-owned
small business concern or SDVO SBC, is to be construed to apply to a VA
verified and VIP-listed SDVOSB, unless otherwise stated in this clause.
(2) The term ``Service-disabled Veteran'' means a Veteran, as
defined in 38 U.S.C. 101(2), with a disability that is service-
connected, as defined in 38 U.S.C. 101(16).
(3) The term ``small business concern'' has the meaning given that
term under section 3 of the Small Business Act (15 U.S.C. 632).
(4) The term ``small business concern owned and controlled by
Veterans with service-connected disabilities'' has the meaning given
the term ``small business concern owned and controlled by service-
disabled veterans'' under section 3(q)(2) of the Small Business Act (15
U.S.C. 632(q)(2)), except that for a VA contract the firm must be
listed in the VIP database (see paragraph (a)(1)(iv) above).
(b) General. (1) Offers are solicited only from VIP-listed SDVOSBs.
Offers received from entities that are not VIP-listed SDVOSBs at the
time of offer shall not be considered.
(2) Any award resulting from this solicitation shall be made to a
VIP-listed SDVOSB who is eligible at the time of submission of offer(s)
and at the time of award.
(3) The requirements in this clause apply to any contract, order or
subcontract where the firm receives a benefit or preference from its
designation as an SDVOSB, including set-asides, sole source awards, and
evaluation preferences.
(c) Representation. Pursuant to 38 U.S.C. 8127(e), only VIP-listed
SDVOSBs are considered eligible to receive award of a resulting
contract. By submitting an offer, the prospective contractor represents
that it is an eligible SDVOSB as defined in this clause, 38 CFR part
74, and VAAR subpart 819.70.
(d) Agreement. When awarded a contract action, including orders
under multiple-award contracts, an SDVOSB agrees that in the
performance of the contract, the SDVOSB shall comply with requirements
in VAAR subpart 819.70 and SBA regulations on small business size and
government contracting programs at 13 CFR part 121 and part 125,
including the non-manufacturer rule and limitations on subcontracting
requirements in 13 CFR 121.406(b) and 13 CFR 125.6. Unless otherwise
stated in this clause, a requirement in 13 CFR part 121 and 125 that
applies to an SDVO SBC, is to be construed to also apply to a VIP-
listed SDVOSB. For the purpose of limitations on subcontracting, only
VIP-listed SDVOSBs (including independent contractors) shall be
considered eligible and/or ``similarly situated'' (i.e., a firm that
has the same small business program status as the prime contractor). An
otherwise eligible firm further agrees to comply with the required
certification requirements in this solicitation (see 852.219-75 or
852.219-76 as applicable). These requirements are summarized as
follows:
(1) Services. In the case of a contract for services (except
construction), the SDVOSB prime contractor will not pay more than 50%
of the amount paid by the government to the prime for contract
performance to firms that are not VIP-listed SDVOSBs (excluding direct
costs to the extent they are not the principal purpose of the
acquisition and the SDVOSB/VOSB does not provide the service, such as
airline travel, cloud computing services, or mass media purchases).
When a contract includes both services and supplies, the 50 percent
limitation shall apply only to the service portion of the contract
(2) Supplies/products. (i) In the case of a contract for supplies
or products (other than from a non-manufacturer of such supplies), the
SDVOSB prime contractor will not pay more than 50% of the amount paid
by the government to the prime for contract performance, excluding the
cost of materials, to firms that are not VIP-listed SDVOSBs. When a
contract includes both supply and services, the 50 percent limitation
shall apply only to the supply portion of the contract.
(ii) In the case of a contract for supplies from a non-
manufacturer, the SDVOSB prime contractor will supply the product of a
domestic small business manufacturer or processor, unless a waiver as
described in 13 CFR 121.406(b)(5) has been granted. Refer to 13 CRF
125.6(a)(2)(ii) for guidance pertaining to multiple item procurements.
(3) General construction. In the case of a contract for general
construction, the SDVOSB prime contractor will not pay more than 85% of
the amount paid by the government to the prime for contract
performance, excluding the cost of materials, to firms that are not
VIP-listed SDVOSBs.
(4) Special trade construction contractors. In the case of a
contract for special trade contractors, no more than 75% of the amount
paid by the government to the prime for contract performance, excluding
the cost of materials, may be paid to firms that are not VIP-listed
SDVOSBs.
(5) Subcontracting. An SDVOSB must meet the NAICS size standard
assigned by the prime contractor and be listed in VIP to count as
similarly situated. Any work that a first tier VIP-listed SDVOSB
subcontractor further subcontracts will count towards the percent of
subcontract amount that cannot be exceeded. For supply or construction
contracts, the cost of materials is excluded and not considered to be
subcontracted. When a contract includes both services and supplies, the
50 percent limitation shall apply only to the portion of the contract
with the preponderance of the expenditure upon which the assigned NAICS
is based. For information and more specific requirements, refer to 13
CFR 125.6.
(e) Required limitations on subcontracting compliance measurement
period. An SDVOSB shall comply with the limitations on subcontracting
as follows:
[Contracting Officer check as appropriate.]
__ By the end of the base term of the contract or order, and then by
the end of each subsequent option period; or
__ By the end of the performance period for each order issued under the
contract.
(f) Joint ventures. A joint venture may be considered eligible as
an SDVOSB if the joint venture is listed in VIP and complies with the
requirements in 13 CFR 125.18(b), provided that any requirement therein
that applies to an SDVO SBC is to be construed to apply to a VIP-listed
SDVOSB. A joint venture agrees that, in the performance of the
contract, the applicable percentage specified in paragraph (d) of this
clause will be performed by the aggregate of the joint venture
participants.
[[Page 13621]]
(g) Precedence. The VA Veterans First Contracting Program, as
defined in VAAR 802.101, subpart 819.70 and this clause, takes
precedence over any inconsistencies between the requirements of the SBA
Program for SDVO SBCs, and the VA Veterans First Contracting Program.
(h) Misrepresentation. Pursuant to 38 U.S.C. 8127(g), any business
concern, including all its principals, that is determined by VA to have
willfully and intentionally misrepresented a company's SDVOSB status is
subject to debarment from contracting with the Department for a period
of not less than five years (see VAAR 809.406-2 Causes for Debarment).
(End of clause)
852.219-11 [Removed]
0
22. Remove section 852.219-11.
0
23. Add section 852.219-74 to read as follows:
852.219-74 VA Notice of Total Set-Aside for Verified Veteran-Owned
Small Businesses.
As prescribed in 819.7011, insert the following clause:
VA NOTICE OF TOTAL SET-ASIDE FOR VERIFIED VETERAN-OWNED SMALL
BUSINESSES (DATE)
(a) Definition. For the Department of Veterans Affairs, ``Veteran-
owned small business or VOSB'':
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
Veterans or, in the case of any publicly owned business, not less than
51 percent of the stock of which is owned by one or more Veteran(s);
(ii) The management and daily business operations of which are
controlled by one or more Veteran(s);
(iii) The business meets Federal small business size standards for
the applicable North American Industry Classification System (NAICS)
code identified in the solicitation document;
(iv) The business has been verified for ownership and control
pursuant to 38 CFR part 74 and is listed in VA's Vendor Information
Pages (VIP) database at: https://www.vetbiz.va.gov/vip/; and
(v) The business will comply with VAAR subpart 819.70 and Small
Business Administration (SBA) regulations regarding small business size
and government contracting programs at 13 CFR part 121 and 125,
provided that any requirement therein that applies to a service-
disabled veteran-owned small business concern or SDVO SBC, is to be
construed to also apply to a VA verified and VIP-listed VOSB, unless
otherwise stated in this clause.
(vi) The term VOSB includes VIP-listed service-disabled veteran-
owned small businesses (SDVOSB).
(2) ``Veteran'' is defined in 38 U.S.C. 101(2).
(3) The term ``small business concern'' has the meaning given that
term under section 3 of the Small Business Act (15 U.S.C. 632).
(4) The term ``small business concern owned and controlled by
Veterans'' has the meaning given that term under section 3(q)(3) of the
Small Business Act (15 U.S.C. 632(q)(3)), except that for a VA contract
the firm must be listed in the VIP database (see paragraph (a)(1)(iv)
of this clause).
(b) General. (1) Offers are solicited only from VIP-listed VOSBs,
including VIP-listed SDVOSBs. Offers received from entities that are
not VIP-listed at the time of offer shall not be considered.
(2) Any award resulting from this solicitation shall be made only
to a VIP-listed VOSB who is eligible at the time of submission of
offer(s) and at time of award.
(3) The requirements in this clause apply to any contract, order or
subcontract where the firm receives a benefit or preference from its
designation as a VOSB, including set-asides, sole source awards, and
evaluation preferences.
(c) Representation. Pursuant to 38 U.S.C. 8127(e), only VIP-listed
VOSBs are considered eligible to receive award of a resulting contract.
By submitting an offer, the prospective contractor represents that it
is an eligible VOSB as defined in this clause, 38 CFR part 74, and VAAR
subpart 819.70.
(d) Agreement. When awarded a contract action, including orders
under multiple-award contracts, a VOSB agrees that in the performance
of the contract, the VOSB shall comply with requirements in VAAR
subpart 819.70 and SBA regulations on small business size and
government contracting programs at 13 CFR part 121 and part 125,
including the non-manufacturer rule and limitations on-subcontracting
requirements in 13 CFR 121.406(b) and 125.6. Unless otherwise stated in
this clause, any requirement in 13 CFR part 121 and part 125 that
applies to an SDVO SBC, is to be construed to also apply to a VIP-
listed VOSB. For the purpose of the limitations on subcontracting, only
VIP-listed VOSB, (including independent contractors) is considered
eligible and/or ``similarly situated'' (i.e., a firm that has the same
small business program status as the prime contractor). An otherwise
eligible firm further agrees to comply with the required certification
requirements in this solicitation (see 852.219-75 and/or 852.219-76 as
applicable). These requirements are summarized as follows:
(1) Services. In the case of a contract for services (except
construction), the VOSB prime contractor will not pay more than 50% of
the amount paid by the government to the prime for contract performance
to firms that are not VIP-listed VOSBs (excluding direct costs to the
extent they are not the principal purpose of the acquisition and the
SDVOSB/VOSB does not provide the service, such as airline travel, cloud
computing services, or mass media purchases). When a contract includes
both services and supplies, the 50 percent limitation shall apply only
to the service portion of the contract.
(2) Supplies/products. (i) In the case of a contract for supplies
or products (other than from a non-manufacturer of such supplies), the
VOSB prime contractor will not pay more than 50% of the amount paid by
the government to the prime for contract performance, excluding the
cost of materials, to firms that are not VIP-listed VOSBs. When a
contract includes both supply and services, the 50 percent limitation
shall apply only to the supply portion of the contract.
(ii) In the case of a contract for supplies from a non-
manufacturer, the VOSB prime contractor will supply the product of a
domestic small business manufacturer or processor, unless a waiver as
described in 13 CFR 121.406(b)(5) has been granted. Refer to 13 CFR
125.6(a)(2)(ii) for guidance pertaining to multiple item procurements.
(3) General construction. In the case of a contract for general
construction, the VOSB prime contractor will not pay more than 85% of
the amount paid by the government to the prime for contract
performance, excluding the cost of materials, to firms that are not
VIP-listed VOSBs.
(4) Special trade construction contractors. In the case of a
contract for special trade contractors, no more than 75% of the amount
paid by the government to the prime for contract performance, excluding
the cost of materials, may be paid to firms that are not VIP-listed
VOSBs.
(5) Subcontracting. A VOSB must meet the NAICS size standard
assigned by the prime contractor and be listed in VIP to count as
similarly situated. Any work that a first tier VIP-listed VOSB
subcontractor further subcontracts will count towards the percent of
subcontract amount that cannot be exceeded. For supply or construction
[[Page 13622]]
contracts, the cost of materials is excluded and not considered to be
subcontracted. When a contract includes both services and supplies, the
50 percent limitation shall apply only to the portion of the contract
with the preponderance of the expenditure upon which the assigned NAICS
is based. For information and more specific requirements, refer to 13
CFR 125.6.
(e) Required limitations on subcontracting compliance measurement
period. A VOSB shall comply with the limitations on subcontracting as
follows:
[Contracting Officer check as appropriate.]
__ By the end of the base term of the contract or order, and then by
the end of each subsequent option period; or
__ By the end of the performance period for each order issued under the
contract.
(f) Joint ventures. A joint venture may be considered eligible as a
VOSB if the joint venture is listed in VIP and complies with the
requirements in 13 CFR 125.18(b), provided that any requirement therein
that applies to an SDVO SBC is to be construed to also apply to a VIP-
listed VOSB. A joint venture agrees that, in the performance of the
contract, the applicable percentage specified in paragraph (d) of this
clause will be performed by the aggregate of the joint venture
participants.
(g) Precedence. The VA Veterans First Contracting Program, as
defined in VAAR 802.10, subpart 819.70 and this clause, takes
precedence over any inconsistencies between the requirements of the SBA
Program for SDVO SBCs and the VA Veterans First Contracting Program.
(h) Misrepresentation. Pursuant to 38 U.S.C. 8127(g), any business
concern, including all its principals, that is determined by VA to have
willfully and intentionally misrepresented a company's VOSB status is
subject to debarment from contracting with the Department for a period
of not less than five years (see VAAR 809.406-2 Causes for Debarment).
(End of clause)
0
24. Add section 852.219-75 to read as follows:
852.219-75 VA Notice of Limitations on Subcontracting--Certificate of
Compliance for Services and Construction.
As prescribed in 819.7011(b), insert the following clause:
VA NOTICE OF LIMITATIONS ON SUBCONTRACTING--CERTIFICATE OF COMPLIANCE
FOR SERVICES AND CONSTRUCTION (DATE)
(a) Pursuant to 38 U.S.C. 8127(k)(2), the offeror certifies that--
(1) If awarded a contract (see FAR 2.101 definition), it will
comply with the limitations on subcontracting requirement as provided
in the solicitation and the resultant contract, as follows:
[Contracting Officer check the appropriate box below based on the
predominant NAICS code assigned to the instant acquisition as set forth
in FAR 19.102.]
(i) [square] Services. In the case of a contract for services (except
construction), the contractor will not pay more than 50% of the amount
paid by the government to it to firms that are not VIP-listed SDVOSBs
as set forth in 852.219-73 or VOSBs as set forth in 852.219-74. Any
work that a similarly situated VIP-listed subcontractor further
subcontracts will count towards the 50% subcontract amount that cannot
be exceeded. Other direct costs may be excluded to the extent they are
not the principal purpose of the acquisition and small business
concerns do not provide the service as set forth in 13 CFR 125.6.
(ii) [square] General construction. In the case of a contract for
general construction, the contractor will not pay more than 85% of the
amount paid by the government to it to firms that are not VIP-listed
SDVOSBs as set forth in 852.219-73 or VOSBs as set forth in 852.219-74.
Any work that a similarly situated VIP-listed subcontractor further
subcontracts will count towards the 85% subcontract amount that cannot
be exceeded. Cost of materials are excluded and not considered to be
subcontracted.
(iii) [square] Special trade construction contractors. In the case of a
contract for special trade contractors, the contractor will not pay
more than 75% of the amount paid by the government to it to firms that
are not VIP-listed SDVOSBs as set forth in 852.219-73 or VOSBs as set
forth in 852.219-74. Any work that a similarly situated subcontractor
further subcontracts will count towards the 75% subcontract amount that
cannot be exceeded. Cost of materials are excluded and not considered
to be subcontracted.
(2) The offeror acknowledges that this certification concerns a
matter within the jurisdiction of an Agency of the United States. The
offeror further acknowledges that this certification is subject to
Title 18, United States Code, Section 1001, and, as such, a false,
fictitious, or fraudulent certification may render the offeror subject
to criminal, civil, or administrative penalties, including prosecution.
(3) If VA determines that an SDVOSB/VOSB awarded a contract
pursuant to 38 U.S.C. 8127 did not act in good faith, such SDVOSB/VOSB
shall be subject to any or all of the following:
(i) Referral to the VA Suspension and Debarment Committee;
(ii) A fine under section 16(g)(1) of the Small Business Act (15
U.S.C. 645(g)(1)); and
(iii) Prosecution for violating section 1001 of title 18.
(b) The offeror represents and understands that by submission of
its offer and award of a contract it may be required to provide copies
of documents or records to VA that VA may review to determine whether
the offeror complied with the limitations on subcontracting requirement
specified in the contract. Contracting officers may, at their
discretion, require the contractor to demonstrate its compliance with
the limitations on subcontracting at any time during performance and
upon completion of a contract if the information regarding such
compliance is not already available to the contracting officer.
Evidence of compliance includes, but is not limited to, invoices,
copies of subcontracts, or a list of the value of tasks performed.
(c) The offeror further agrees to cooperate fully and make
available any documents or records as may be required to enable VA to
determine compliance with the limitations on subcontracting
requirement. The offeror understands that failure to provide documents
as requested by VA may result in remedial action as the Government
deems appropriate.
(d) Offeror completed certification/fill-in required. The formal
certification must be completed, signed and returned with the offeror's
bid, quotation, or proposal. The Government will not consider offers
for award from offerors that do not provide the certification, and all
such responses will be deemed ineligible for evaluation and award.
Certification
I hereby certify that if awarded the contract, [insert name of
offeror] will comply with the limitations on subcontracting specified
in this clause and in the resultant contract. I further certify that I
am authorized to execute this certification on behalf of [insert name
of offeror].
Printed Name of Signee:
-----------------------------------------------------------------------
[[Page 13623]]
Printed Title of Signee:
-----------------------------------------------------------------------
Signature:
-----------------------------------------------------------------------
Date:
-----------------------------------------------------------------------
Company Name and Address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(End of clause)
0
25. Add section 852.219-76 to read as follows:
852.219-76 VA Notice of Limitations on Subcontracting--Certificate of
Compliance for Supplies and Products.
As prescribed in 819.7011(c), insert the following clause. The
contracting officer shall tailor the clause in paragraph (a)(2)(iii) as
appropriate:
VA NOTICE OF LIMITATIONS ON SUBCONTRACTING--CERTIFICATE OF COMPLIANCE
FOR SUPPLIES AND PRODUCTS (DATE)
(a) Pursuant to 38 U.S.C. 8127(k)(2), the offeror certifies that--
(1) If awarded a contract (see FAR 2.101 definition), it will
comply with the limitations on subcontracting requirement as provided
in the solicitation and the resultant contract, as follows: [Offeror
check the appropriate box]
(i) [square] In the case of a contract for supplies or products (other
than from a non-manufacturer of such supplies), it will not pay more
than 50% of the amount paid by the government to it to firms that are
not VIP-listed SDVOSBs as set forth in 852.219-73 or VOSBs as set forth
in 852.219-74. Any work that a similarly situated VIP-listed
subcontractor further subcontracts will count towards the 50%
subcontract amount that cannot be exceeded. Cost of materials are
excluded and not considered to be subcontracted.
(ii) [square] In the case of a contract for supplies from a
nonmanufacturer, it will supply the product of a domestic small
business manufacturer or processor, unless a waiver as described in 13
CFR 121.406(b)(5) is granted. The offeror understands that, as provided
in 13 CFR 121.406(b)(7), such a waiver has no effect on requirements
external to the Small Business Act, such as the Buy American Act or the
Trade Agreements Act.
(2) Manufacturer or nonmanufacturer representation and
certification. [Offeror fill-in--check each applicable box below. The
offeror must select the applicable provision below, identifying itself
as either a manufacturer or nonmanufacturer]:
(i) [square] Manufacturer or producer. The offeror certifies that it is
the manufacturer or producer of the end item being procured, and the
end item is manufactured or produced in the United States, in
accordance with paragraph (a)(1)(i).
(ii) [square] Nonmanufacturer. The offeror certifies that it qualifies
as a nonmanufacturer in accordance with the requirements of 13 CFR
121.406(b) and paragraph (a)(1)(ii). The offeror further certifies it
meets each element below as required in order to qualify as a
nonmanufacturer. [Offeror fill-in--check each box below.]
[square] The offeror certifies that it does not exceed 500 employees
(or 150 employees for the Information Technology Value Added Reseller
exception to NAICS code 541519, which is found at 13 CFR 121.201,
footnote 18).
[square] The offeror certifies that it is primarily engaged in the
retail or wholesale trade and normally sells the type of item being
supplied.
[square] The offeror certifies that it will take ownership or
possession of the item(s) with its personnel, equipment, or facilities
in a manner consistent with industry practice.
(iii) [square] The offeror certifies that it will supply the end item
of a small business manufacturer, processor, or producer made in the
United States, unless a waiver as provided in 13 CFR 121.406(b)(5) has
been issued by SBA. [Contracting Officer fill-in or removal (see 13 CFR
121.1205). This requirement must be included for a single end item.
However, if SBA has issued an applicable waiver of the nonmanufacturer
rule for the end item, this requirement must be removed in the final
solicitation or contract.]
or [Contracting officer tailor clause to remove one or other block
under subparagraph (iii).]
[square] If this is a multiple item acquisition, the offeror certifies
that at least 50% of the estimated contract value is composed of items
that are manufactured by small business concerns. [Contracting Officer
fill-in or removal. See 13 CFR 121.406(d) for multiple end items. If
SBA has issued an applicable nonmanufacturer rule waiver, this
requirement must be removed in the final solicitation or contract.]
(3) The offeror acknowledges that this certification concerns a
matter within the jurisdiction of an Agency of the United States. The
offeror further acknowledges that this certification is subject to
Title 18, United States Code, Section 1001, and, as such, a false,
fictitious, or fraudulent certification may render the offeror subject
to criminal, civil, or administrative penalties, including prosecution.
(4) If VA determines that an SDVOSB/VOSB awarded a contract
pursuant to 38 U.S.C. 8127 did not act in good faith, such SDVOSB/VOSB
shall be subject to any or all of the following:
(i) Referral to the VA Suspension and Debarment Committee;
(ii) A fine under section 16(g)(1) of the Small Business Act (15
U.S.C. 645(g)(1)); and
(iii) Prosecution for violating section 1001 of title 18.
(b) The offeror represents and understands that by submission of
its offer and award of a contract it may be required to provide copies
of documents or records to VA that VA may review to determine whether
the offeror complied with the limitations on subcontracting requirement
specified in the contract or to determine whether the offeror qualifies
as a manufacturer or nonmanufacturer in compliance with the limitations
on subcontracting requirement. Contracting officers may, at their
discretion, require the contractor to demonstrate its compliance with
the limitations on subcontracting at any time during performance and
upon completion of a contract if the information regarding such
compliance is not already available to the contracting officer.
Evidence of compliance includes, but is not limited to, invoices,
copies of subcontracts, or a list of the value of tasks performed.
(c) The offeror further agrees to cooperate fully and make
available any documents or records as may be required to enable VA to
determine compliance. The offeror understands that failure to provide
documents as requested by VA may result in remedial action as the
Government deems appropriate.
(d) Offeror completed certification/fill-in required. The formal
certification must be completed, signed and returned with the offeror's
bid, quotation, or proposal. The Government will not consider offers
for award from offerors that do not provide the certification, and all
such responses will be deemed ineligible for evaluation and award.
Certification
I hereby certify that if awarded the contract, [insert name of
offeror] will comply with the limitations on subcontracting specified
in this clause and in the resultant contract. I further certify that I
am authorized to execute
[[Page 13624]]
this certification on behalf of [insert name of offeror].
Printed Name of Signee:
-----------------------------------------------------------------------
Printed Title of Signee:
-----------------------------------------------------------------------
Signature:
-----------------------------------------------------------------------
Date:
-----------------------------------------------------------------------
Company Name and Address:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(End of clause)
PART 853--FORMS
0
26. Revise the authority citation for part 853 to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301
through 1.304.
Subpart 853.2--Prescription of Forms
0
27. Add section 853.219 to read as follows:
853.219 Small business forms.
(a) VA Form 2268, Small Business Program and Contract Bundling
Review. VA Form 2268 is prescribed for use to document actions and
recommendations related to small business, as specified in 819.202.
(b) VA Form 0896A, Report of Subcontracts to Small and Veteran-
Owned Businesses. VA Form 0896A is prescribed for use to submit
subcontracting information, as specified in 819.704-70.
(c) Forms are available at: https://www.va.gov/vaforms.
[FR Doc. 2022-03677 Filed 3-8-22; 8:45 am]
BILLING CODE 8320-01-P