[Federal Register: January 13, 2006 (Volume 71, Number 9)]
[Proposed Rules]
[Page 2341-2424]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13ja06-23]
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Part III
Department of Veterans Affairs
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48 CFR Chapter 8
VA Acquisition Regulation: Plain Language Rewrite; Proposed Rule
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Chapter 8
RIN 2900-AK78
VA Acquisition Regulation: Plain Language Rewrite
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: We propose to revise the Department of Veterans Affairs (VA)
Acquisition Regulation (VAAR). We have rewritten much of the VAAR to
conform to plain language principles. We are changing many delegations
of authority for the purpose of becoming more efficient. We are
removing non-regulatory material. We are making changes in format,
arrangement, and numbering to make the VAAR parallel to the Federal
Acquisition Regulation (FAR) as required by the FAR. We are removing
provisions that simply restate FAR provisions that are already
applicable. This document also proposes to set forth or revise
procedures for providing notice and hearing to resolve issues regarding
possible violations of the Gratuities clause, establishing qualified
products lists, suspending or debarring a contractor, for expediting
payments to small businesses, and for reducing or suspending payments
upon a finding of contract fraud. We propose to expand the coverage of
the VAAR clause on Organizational Conflicts of Interest to cover a
broader range of services that may be subject to organizational
conflicts of interest. We propose to clarify the scope of certain
regulations and to allow use of additional VAAR clauses in commercial
item solicitations and contracts, to remove requirements for setting
aside construction and architect-engineer solicitations for small
businesses that are in conflict with current statute, to remove a
requirement to conduct an audit of section 8(a) price proposals that is
contrary to current FAR requirements, and to remove a VAAR provision
that requested data from offerors on veteran-owned small businesses
that has been replaced by a FAR provision. The rule would provide
guidance to contracting officers on the types of data that should be
requested from a contractor when evaluating the contractor's financial
condition. The rule would require the use of the clause on Assignment
of Claims in purchase orders, would provide guidance to contracting
officers on the criteria for revising the payment due dates for
invoices, and would require the use of Alternate I to the clause on
Disputes.
DATES: Comments on the proposed rule should be submitted on or before
March 14, 2006 to be considered in the formulation of the final rule.
ADDRESSES: Written comments may be submitted by: mail or hand-delivery
to the Director, Regulations Management (00REG1), Department of
Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC
20420; fax to (202) 273-9026; e-mail to VARegulations@va.gov; or,
through http://www.regulations.gov. Comments should indicate that they
are submitted in response to ``RIN 2900-AK78.'' All comments received
will be available for public inspection in the Office of Regulation
Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30
p.m. Monday through Friday (except holidays). Please call (202) 273-
9515 for an appointment.
FOR FURTHER INFORMATION CONTACT:
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Telephone No. and e-
VAAR part Name mail address
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808, 813, 852................. Cathy Dailey..... (202) 273-8774;
cathy.dailey@mail.va
.gov.
803 through 806, 809, 811, Don Kaliher...... (202) 273-8819;
817, 819, 822, 825, 828, 829, donald.kaliher@mail.
831 through 833, 836, 837, va.gov.
842, 846, 852, and 873.
801, 802, 807, 812, 814 Barbara Latvanas. (202) 273-7808;
through 816, 824, 841, 847, barbara.latvanas@mai
849, 852, 853, 870, and 871. l.va.gov.
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The mailing address for the contact persons is as follows:
Acquisition Policy Division (049A5A), Office of Acquisition and
Material Management, Department of Veterans Affairs, 810 Vermont Ave.,
NW, Washington, 20420.
SUPPLEMENTARY INFORMATION: When Federal agencies acquire supplies and
services using appropriated funds, the purchase is governed by the
Federal Acquisition Regulation (FAR), set forth at 48 Code of Federal
Regulations (CFR) chapter 1, parts 1 through 53, and the agency
regulations that implement and supplement the FAR. These authorities
are designed to ensure that Government procurements are handled fairly
and consistently, that the Government receives the best value for its
money, and that all Government contractors operate under a known set of
rules.
The Department of Veterans Affairs (VA) regulations that implement
and supplement the FAR are named the VA Acquisition Regulation (VAAR)
and are set forth at 48 CFR chapter 8, parts 801 through 873. The wide
variety of activities that VA carries out makes it necessary for VA to
implement and supplement the FAR. The VAAR covers VA special
acquisition needs. We are proposing a number of changes to the VAAR. We
have rewritten much of the VAAR to conform to plain language principles
and plain language changes have been made to most parts of the VAAR. We
propose to change many delegations of authority for the purpose of
becoming more efficient. We are removing non-regulatory material. We
propose to make changes in format, arrangement, and numbering to make
the VAAR parallel to the Federal Acquisition Regulation (FAR) as
required by subpart 1.3 of the FAR. We propose to remove provisions
that simply restate FAR provisions that are already applicable. We are
also proposing to make other changes discussed below.
Part 801, Department of Veterans Affairs Acquisition Regulations System
We propose to amend the ``Authority'' cites at the beginning of
each Department of Veterans Affairs Acquisition Regulation (VAAR) part
to correspond to current authority.
We propose to amend the VAAR to use acronyms, such as ``VAAR,'' in
part 801 and throughout the document for many of the common terms used.
The new acronyms are referenced in part 802 or, if used only in one
part or subpart of the VAAR, in that part or subpart.
We proposed to add new VAAR sections 801.105, Issuance, and
801.105-2, Arrangement of regulations, to explain how the VAAR is
structured. The information follows the structure established for the
Federal Acquisition Regulation (FAR) at 1.105 and 1.105-2.
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The VAAR is intended to supplement the FAR and must follow a similar
structural arrangement.
Throughout the document, sections of the VAAR have been renumbered
and/or renamed to correspond to the FAR with no significant changes to
the material contained therein. For instance, section 801.301-70,
Paperwork Reduction Act requirements, has been renumbered and renamed
as 801.106, OMB approval under the Paperwork Reduction Act, to
correspond to the FAR.
We proposed to add designations for the Department's Chief
Acquisition Officer, Senior Procurement Executive (SPE), and
Procurement Executive (which is being renamed as the Deputy Senior
Procurement Executive (DSPE)), at 802.100, Definitions, to new section
801.304, Agency control and compliance procedures, to delineate
responsibilities for compliance with FAR requirements.
We propose to amend VAAR section 801.670-5 by removing previously
delegated authority for all officials except the Inspector General to
enter into or issue Letters of Agreement. As a result of this proposed
change, future acquisitions of the types of services previously
acquired under this section (e.g., advisory and assistance services,
peer review of research, acquisition of instructor services and
training) will be acquired using normal acquisition methods (e.g.,
purchase orders, micro-purchases using the purchase card). The Office
of Inspector General may continue to issue contracts using a letter
format due to the sensitive nature of the acquisitions of that office.
We believe this proposed amendment will simplify the acquisition
process and consolidate acquisition functions within VA.
Subpart 803.2, Contractor Gratuities to Government Personnel
We propose to add VAAR section 803.204 to specify the notification
and hearing procedures we would follow before taking an action to
terminate a contractor's right to proceed and/or initiate debarment or
suspension measures, based on violation of the Gratuities clause. The
proposed procedures are modeled after the proposed VAAR provisions at
809.406-3, which set out procedures for debarment. We would make these
changes to comply with FAR 3.204.
Subpart 803.7, Voiding and Rescinding Contracts
We propose to add VAAR section 803.705 to specify the notification
and hearing procedures we would follow before taking an action to void
or rescind a contract based on final conviction for bribery or other
offenses, as specified in FAR 3.700. The proposed procedures are
modeled after the proposed VAAR provisions at 809.406-3, which set out
procedures for debarment. We propose to make these changes to comply
with FAR 3.705.
Sections 806.401 and 814.103-1
We propose to remove provisions currently in sections 806.401 and
814.103-1 requiring VA contracting officers to use sealed bidding
procedures for any solicitation over the small purchase limitation and
for any acquisition expected to exceed $1,000 for repairs of property
under 38 United States Code (U.S.C.) Chapter 37. The FAR requires the
use of sealed bidding if the acquisition is subject to FAR Part 6 and:
(1) Time permits the solicitation, submission, and evaluation of sealed
bids; (2) the award will be made on the basis of price and other price-
related factors; (3) it is not necessary to conduct discussions with
the responding offerors about their bids; and (4) there is a reasonable
expectation of receiving more than one sealed bid. We see no reason for
a special VAAR rule on these matters. By proposing to remove these VAAR
provisions, VA contracting officers would be governed by the FAR. We
believe the FAR provisions provide sufficient guidance on when to use
sealed bidding procedures.
Subpart 807.3, Contractor Versus Government Performance, and 852.207-
70, Report of Employment Under Commercial Activities
We propose to amend Subpart 807.3 to remove the term
``employee(s)'' to add in its place ``personnel'' to generally
correspond with how the term is used in FAR Subpart 7.3 and in Office
of Management and Budget Circular A-76.
Part 809, Contractor Qualifications
We propose to add new section 809.204, Responsibilities for
establishment of a qualification requirement, to provide guidance to
contracting officers on establishing VA qualified product lists (QPL).
Contracting officers may develop a QPL either for local use, for use in
VA's Veterans Integrated Service Networks (VISN), or for some other
geographical or administrative area. This is consistent with the FAR at
Subpart 9.2.
Under current VAAR 809.206(b)(2), a contractor must guarantee that
he or she will deliver a product to VA if we agree to accept and test
the product for listing on a QPL. We propose to remove this requirement
because a guarantee in these circumstances is of no consequence since
the terms of a contract for a product are negotiated after the listing
of the product on a QPL. A contractor will sell its product to VA if
the parties can agree on price and other terms and conditions.
Under current VAAR 809.206(b)(2), when we are establishing a VA
QPL, VA gives ``known suppliers'' of an item the chance to submit a
sample item. However, under FAR 8.404, VA may issue a delivery order
against a Federal Supply Schedule (FSS) contract without seeking
further competition from firms who do not hold FSS contracts and may
seek price reductions from FSS contractors. We propose to revise the
text currently in 809.206(b)(2) to state that VA may limit ``known
suppliers'' to those contractors whose products are already covered
under an FSS contract and to redesignate the provision as
809.204(c)(2). This proposed change would preclude requiring VA to
duplicate a full and open competition that has already been conducted
to establish the FSS schedule. Our proposed action is consistent with
FAR 8.404.
Subpart 809.4, Debarment, Suspension, and Ineligibility
Subpart 809.4 supplements provisions of the FAR concerning the
debarment or suspension of contractors. We propose to amend the
procedures for debarring or suspending contractors. The proposed
procedures include the following:
Under the proposed procedures, when the Debarment and Suspension
(D&S) Committee finds evidence of a cause for debarment or suspension,
it would conduct an investigation on whether or not to prepare a Notice
of Proposal to Debar or Notice of Suspension and make a recommendation
to the Deputy Senior Procurement Executive (DSPE).
If the DSPE finds a basis for debarment or suspension, the D&S
Committee would send the contractor the Notice of Proposal to Debar or
Notice of Suspension. Pursuant to the FAR, a contractor given a Notice
of Proposal to Debar or Notice of Suspension is excluded from
participating in Federal procurement and non-procurement programs.
The contractor proposed for debarment or suspended may submit
information in person or in writing at an informal proceeding or
otherwise. If the contractor's objections to the proposed debarment or
suspension are based on a genuine dispute over facts material to the
action, the dispute would be resolved in a separate preceding before a
member of the VA Board of Contract Appeals (an informal trial type
hearing
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under the procedures in proposed section 809.470).
If there is no such dispute or if all disputes have been resolved,
the debarring or suspending official will make a decision based on all
available information.
These proposed procedures are designed to ensure that the
contractor is provided with an efficient and fair process before a
decision is made on whether or not to take a debarment action or to
continue with a suspension action.
Subpart 809.5, Organizational and Consultant Conflicts of Interest
The VAAR currently requires that the clause at 852.209-70,
Organizational Conflicts of Interest, be inserted in solicitations for
consulting services. We propose to require that this clause also be
used in solicitations for management support services, other
professional services, contractor performance of, or assistance in,
conducting technical evaluations; or system engineering and technical
direction work. These are the types of services that may be subject to
potential organizational and consultant conflicts of interest issues as
contemplated by FAR 9.502.
Part 811, Describing Agency Needs
We propose to relocate material from section 811.204 to a new
proposed clause at 852.211-75, Product Specifications, without change
for purposes of clarity.
Part 812, Acquisition of Commercial Items
We propose to add section 812.102, Applicability, to state that
contracts for the acquisition of commercial items are subject to the
policies in other parts of the VAAR. However, proposed section 812.102
notes that when a policy in another part of the VAAR differs from a
policy in Part 812, Part 812 shall take precedence for the acquisition
of commercial items. This proposed section is to make the VAAR
consistent with the principles of the FAR at 12.102(c).
We propose to remove the requirement currently at 812.301,
Solicitation provisions and contract clauses for the acquisition of
commercial items, which requires a contracting officer to include the
clause at 852.219-70, Veteran-Owned Small Business, in acquisitions of
commercial items because this requirement has been superseded by a
similar FAR requirement at 52.212-3. In addition, we propose to make
the use of clauses listed in proposed section 812.301, paragraphs (b)
and (c), optional rather than mandatory in acquisitions of commercial
items and to add the following clauses to the list of clauses in
812.301(b) that may be used in solicitations and contracts for the
acquisition of commercial items:
852.209-70, Organizational Conflicts of Interest.
852.211-73, Brand Name or Equal.
852.211-75, Product Specifications.
852.214-71, Restrictions on Alternate Item(s).
852.214-72, Alternate Item(s).
852.214-73, Alternate Packaging and Packing.
852.214-74, Bid Samples.
852.252-70, Solicitation Provisions or Clauses Incorporated by
Reference.
We believe the use of these clauses would not be inconsistent with
commercial practices. Further, we propose to add the clause at 852.211-
74, Liquidated Damages, to proposed paragraph (c), thereby allowing the
use of this clause if the contracting officer determines that its use
is consistent with commercial practices. We believe that there may be
situations where use of a liquidated damages clause would not be
inconsistent with commercial practices, such as when failure to deliver
supplies or perform services on a timely basis would result in
financial harm to the Government.
Part 819, Small Business Programs
We propose to add new section 819.202-1 to allow a contracting
officer to prescribe a period less than the standard 30 days for paying
a contractor, but not less than 7 days. This proposal is designed to
assist small businesses in meeting their financial obligations and is
consistent with the FAR requirement at 32.908(c)(2), which does not
allow the payment period to be less than 7 days.
We propose to remove provisions currently in section 819.502-2 that
require contracting officers to treat certain construction and
architect-engineering solicitations as though the Small Business
Administration had initiated a set-aside request. These provisions are
contrary to the provisions of FAR Subpart 19.10 and underlying
statutory authority that provide for unrestricted competition for these
services under the Small Business Competitiveness Demonstration
Program.
We propose to remove provisions currently in 819.800(d) that
require audits to be performed on price proposals under the 8(a)
program in excess of $500,000. This matter is covered under FAR 15.404-
2, which requires the contracting officer to request an audit only when
the information available is inadequate to determine fair and
reasonable price. We think that the FAR provision is adequate to
protect the Government.
We propose to remove paragraph (b) at section 819.7003 that
currently requires the inclusion of the VAAR clause at 852.219-70,
Veteran-Owned Small Business, in all solicitations because this
requirement has been superseded by a similar FAR requirement at 52.212-
3.
Part 832, Contract Financing
We propose to add section 832.006-4 to specify the notification and
hearing procedures we would follow before taking an action to reduce or
suspend payment to a contractor under FAR 32.006, Reduction or
suspension of contract payment upon finding of fraud. We propose to
make these changes to comply with FAR 32.006-3, which requires agencies
to establish appropriate procedures to implement the policies and
procedures of FAR 32.006.
FAR 32.202-1(d) requires an agency to establish procedures for
approving the use of unusual contract financing in commercial item
acquisitions. We propose to establish those agency procedures in
832.202-1 for approving the use of unusual contract financing because
we think they are necessary for ensuring that VA's use of unusual
contract financing or commercial advance payment is in the Government's
best interest.
FAR 32.202-4(a)(2) states that, subject to agency regulations, the
contracting officer may determine that a contractor's financial
condition constitutes adequate security for Government financing. The
VAAR does not currently say what information a contracting officer
should review to assist in making this determination. We propose to add
section 832.202-4 setting forth the information a contracting officer
should evaluate and consider in determining whether a contractor's
financial condition constitutes adequate security. Under this proposal,
the contracting officer should obtain any of the following: interim
balance sheets or income statements; a cash flow forecast for the
contract term; information on contractor financing arrangements
disclosing available cash, credit arrangements, and financial exposure;
tax account information; descriptions or explanations of documents
bearing on the financial vitality of the business; a Dun and Bradstreet
report on the company; or any other necessary financial information.
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FAR Subpart 32.9 sets forth policies, procedures, and clauses an
agency must follow for implementing the ``prompt payment'' provisions
of 5 CFR 1315. FAR 32.904 sets forth the number of days following
receipt of goods or services after which Government acceptance is
deemed to have occurred unless certain exceptions apply. Paragraphs
(b)(1)(ii), (c)(2), (d)(1), and (d)(2) of FAR 32.904 permit a
contracting officer to specify a period of more than 7 days for
accepting goods or services or more than 14 days to process progress
payments or more than 7 days to process the final payment under a
construction contract. We propose to add section 832.904 setting forth
the following factors a contracting officer should consider when making
a decision whether or not to change the payment period: (1) Recent
interest payment history; (2) the complexity of the project; (3)
workload; (4) work site location. We believe these proposed changes
will assist contracting officers in making determinations that are in
the best interest of the Government.
Part 833, Protests, Disputes, and Appeals
The VAAR currently requires the contracting officer to suspend
contract performance if notified by GAO of a protest within 10 days of
award. We propose to remove this provision. This provision has been
superseded by FAR changes at 33.104(c) which state that the contracting
officer must suspend contract performance or terminate the awarded
contract within 10 days after award or within 5 days after a debriefing
date offered to a protester for any debriefing required by FAR 15.505
or 15.506, whichever is later.
In general, prior to passage of the Contract Disputes Act of 1978,
as amended (41 U.S.C. 601-613), the obligation to continue contract
performance of a contract pending a decision on a claim applied only to
claims arising under a contract. However, that Act authorizes agencies
to require a contractor to continue contract performance in accordance
with the contracting officer's direction pending final decision on a
claim relating to the contract. The FAR allows use of this authority
only if authorized by an agency. We propose to add sections 833.213 and
833.215 to require the use of this authority in all contracts because
we believe this is in the best interest of the Government.
In addition, we propose to remove a statement currently at
833.214(c) that everything discussed at an alternative dispute
resolution meeting is confidential. This statement is unwarranted since
the agreement between the parties governs confidentiality and the
agreement may provide otherwise.
Section 837.270, Special Controls for Letters of Agreement
We propose to remove this section. This section applies to letters
of agreement and the section addressing letters of agreement at
801.670-5 is proposed for deletion. If 801.670-5 is deleted, there
would be no requirement for this section.
Part 852, Solicitation Provisions and Contract Clauses
We propose to remove section 852.219-70, Veteran-Owned Small
Business, because this provision has been superseded by a similar FAR
provision in FAR 52.212-3.
We propose to revise clause 852.222-70, Contract Work-Hours and
Safety Standards Act--Nursing Home Care Contract Supplement, to
correspond to plain language principles, with no substantive change to
the intent or meaning of the clause.
We propose to update Alternates I and II of clause 852.236-89, Buy
American Act, to correspond to changes made to FAR Part 25. Alternate I
would apply to construction contracts valued at $7,611,532 or more,
while Alternate II would apply to construction contracts valued between
$6,725,000 and $7,611,531.
We propose to revise section 852.270-1 by deleting the term
``supervise'' and adding, in its place, ``monitor.'' This is to clarify
that VA officials do not supervise the work of contractors.
A number of clauses have been renumbered and/or renamed, as follows
(if no name appears in the second column, the clause name remains
unchanged). Only those clauses that have been renumbered or renamed are
included in this chart. Other clauses may have been changed without
being renumbered or renamed.
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Proposed renumbered/ renamed
Current VAAR clause and title as
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852.211-71, Guarantee.................. 852.246-70.
852.211-72, Rejected Goods............. 852.246-71, Inspection.
852.211-73, Frozen Processed Foods..... 852.246-72.
852.211-74, Special Notice............. 852.211-71.
852.211-75, Technical Industry 852.211-72.
Standards.
852.211-76, Noncompliance with 852.246-73.
Packaging, Packing, and/or Marking.
852.211-77, Brand Name or Equal........ 852.211-73.
852.211-78, Liquidated Damages......... 852.211-74.
852.214-71, Alternate Item(s).......... 852.214-71, Restrictions on
Alternate Item(s); 852.214-72,
Alternate Item(s); and 852.214-
73, Alternate Packaging and
Packing.
852.214-73, Bid Samples................ 852.214-74.
852.233-70 Protest Content............. 852.233-70, Protest Content/
Alternative Dispute
Resolution.
852.237-71, Indemnification and 852.228-71.
Insurance.
852.246-1, Special Warranties.......... 852.246-74.
852.246-2, Warranty for Construction- 852.246-75.
Guarantee Period Services.
852.252-1, Provisions or Clauses that 852.252-70, Solicitation
Require Completion by the Offeror or Provisions or Clauses
Prospective Contractor. Incorporated by Reference.
852.270-4, Commercial Advertising...... 852.203-70.
852.271-71, Inspection................. 852.271-74.
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The proposed clause content of these clauses remain unchanged with
the exception of 852.233-70, Protest Content/Alternative Dispute
Resolution, where paragraph (c) is proposed to be added to encourage
the use of alternative dispute resolution procedures, as provided in
FAR 33.103(c), and clauses 852.271-71, Inspection, and 852.271-74,
Inspection, which are proposed to be combined into one clause for
simplicity.
[[Page 2346]]
Part 873, Simplified Acquisition Procedures for Health-Care Resources
No substantive changes have been made to VAAR Part 873.
Executive Order 12866
The Office of Management and Budget has reviewed this document
under Executive Order 12866.
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 an expenditure by
State, local, or tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any given year. This proposed rule would have no such
effect on State, local, or tribal governments, or the private sector.
Paperwork Reduction Act
Under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-
3521), proposed collections of information are contained in Part 832 at
sections 832.006-4 and 832.202-4, as set forth in the SUPPLEMENTARY
INFORMATION portion of this proposed rule. These are proposed new
sections that were not previously contained in the VAAR. This notice is
to obtain an Office of Management and Budget (OMB) control number for
these sections. As required under section 3507(d) of the Act, VA has
submitted a copy of this proposed rulemaking action to OMB for its
review of the collection of information.
There are two other proposed new sections in this proposed rule
that could potentially require the collection of information from
contractors, section 803.204, Treatment of violations, and section
832.705, Procedures. These sections provide agency procedures for
taking action against a contractor for violation of the Gratuities
clause (see proposed 803.204) or action to void or rescind a contract
for violation of 18 U.S.C. 201-224, all as required by the FAR. VA has
not taken any action under the two corresponding sections of the FAR in
the past several years and there is no likelihood that VA will annually
require the collection of information from 10 or more contractors under
these provisions in the future. Therefore, these provisions are exempt
from the PRA and VA is not requesting PRA approval from OMB for these
provisions.
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.
Comments on the collection of information should be submitted to
the Office of Management and Budget, Attention: Desk Officer for the
Department of Veterans Affairs, Office of Information and Regulatory
Affairs, Office of Management and Budget, Washington, DC 20503, with
copies to the Director, Regulations Management (00REG1), Department of
Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420. Comments
should indicate that they are submitted in response to ``RIN 2900-
AK78.''
Title and section number: 832.006-4, Procedures.
Summary of collection of information: FAR 32.006 authorizes
agencies to reduce or suspend contract payments upon finding of fraud.
FAR 32.006-3(a) requires agencies to establish appropriate procedures
to implement the policies and procedures of section 32.006. VA is
proposing to establish such procedures under section 832.006-4. In
order to provide contractors due process when there has been a finding
of fraud and when, as a result, VA is proposing to reduce or suspend
contract payments, VA must give the contractor notice of that intent
and allow the contractor to submit information or argument in
opposition to the proposed action.
Description of need for information and proposed use of
information: The information will be used by the VA Senior Procurement
Executive (the Assistant Secretary for Management) in making a final
determination whether or not to reduce or suspend payment under the
contract. Submission of this information is voluntary and the
collection of the information is intended to give contractors the
opportunity to rebut a proposed decision to suspend contract payments.
Description of likely respondents: Entities who have contracts with
VA where there has been a finding of fraud on the part of the
contractor.
Estimated number of respondents: 10.
Estimated frequency of responses: 1 response for each contract
under which there has been a finding of fraud.
Estimated average burden per collection: 5 hours.
Estimated total annual reporting and recordkeeping burden: 50
hours.
Title and section number: 832.202-4, Security for Government
financing.
Summary of collection of information: FAR Subpart 32.2 authorizes
the use of certain types of Government financing on commercial item
purchases. 41 U.S.C. 255(f) requires the Government to obtain adequate
security for Government financing. However, FAR 32.202-4(a)(2) provides
that, subject to agency regulations, the contracting officer may
determine that an offeror's financial condition is adequate security.
VA is proposing to issue agency regulations specifying the type of
information that the contracting officer should gather to assist the
contracting officer in making a determination whether or not an
offeror's financial condition constitutes adequate security.
Description of need for information and proposed use of
information: The information will be used by the contracting officer to
assist in making a determination whether or not the offeror's financial
condition is adequate security to permit Government financing of the
commercial purchase. Submission of this information is voluntary and
collection of this information is intended to give contractors an
opportunity to show that their financial condition is adequate security
for Government financing.
Description of likely respondents: Offerors that request or require
commercial item purchase financing (e.g., commercial interim payments,
commercial advance payment) on commercial item acquisitions where the
value of the acquisition exceeds $100,000.
Estimated number of respondents: 10.
Estimated frequency of responses: 1 per offer.
Estimated average burden per collection: 1 hour.
Estimated total annual reporting and recordkeeping burden: 10
hours.
The Department considers comments by the public on proposed
collections of information in--
Evaluating whether the proposed collections 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 proposed collections 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 collections 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.
OMB is required to make a decision concerning the proposed
collection of
[[Page 2347]]
information contained in this proposed rule between 30 and 60 days
after publication of this document 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 proposed regulation.
Regulatory Flexibility Act
When an agency issues a rulemaking proposal, the Regulatory
Flexibility Act (RFA) requires the agency to ``prepare and make
available for public comment an initial regulatory flexibility
analysis'' which will ``describe the impact of the proposed rule on
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an
agency to certify a rule, in lieu of preparing an analysis, if the
proposed rulemaking is not expected to have a significant economic
impact on a substantial number of small entities.
The Secretary certifies that the adoption of this proposed rule
would not have a significant economic impact on a substantial number of
small entities as they are defined in the RFA. The primary purpose of
this document is to update the existing VAAR to correspond to FAR
requirements and internal VA policy and to conform to plain language
principles. Many of the changes are internal to VA and do not impact
the public, do not impose any requirements on the public, and thus do
not have an economic impact on small entities. The changes that do
impact the public are of minimal impact.
The addition of procedures for contractor hearings relative to: (1)
Violation of the Gratuities clause (section 803.204); (2) voiding or
rescinding a contract (section 803.705); and (3) reducing or suspending
payment due to fraud (section 832.006-4) only supplement authorities
that are already in the FAR and that are rarely used by VA. They do not
add any new authorities that VA could not have exercised under the FAR
before issuance of this proposed rule and VA has not taken any action
under these authorities against small entities over the past several
years. Few, if any, actions are expected to be taken in the future.
Thus, there is no impact on a substantial number of small entities.
The changes to Subpart 809.4 relative to suspension and debarment
are changes to form and not to substance. The basic procedures remain
unchanged and there is no change on the impact to small businesses.
The change to 819.202-1 relative to granting small businesses
improved payment terms on contracts is not a new authority, but the
VAAR lacked guidance on how to exercise this authority. Title 5 CFR
1315.5 already authorizes agencies to pay small businesses as quickly
as possible. This change may encourage VA contracting officers to use
this authority more often, but the impact of this provision on small
business would be both minimal and entirely beneficial. With the advent
of purchase cards, small businesses that accept the cards already
receive payment within a matter of a few days following their
submission of a request for payment to VISA. This proposed rule
provision would have no impact on small businesses that accept the
purchase card.
The proposed rule would remove a current provision in section
819.502-2 mandating that certain solicitations be treated as though SBA
initiated a set-aside request. This provision is inconsistent with the
requirements in FAR subpart 19.10 implementing the Small Business
Competitiveness Demonstration Program of 1988, Public Law 100-656
(codified as amended at 15 U.S.C. 644 note). Those authorities require
that competition for procurement contracts relating to construction and
A/E services be unrestricted. Because Public Law 100-656 and FAR
subpart 19.10 already prohibit VA from inferring a set-aside request in
the circumstances specified in VAAR 819.502-2, the removal of that
superseded provision will not have any effect on small entities.
Adoption of the proposed rule changes in sections 803.204, 803.705,
and 832.006-4 would not impose more than minimal costs on any small
entities, as VA has not taken action under the corresponding FAR
provisions over the past several years and we do not expect to take
many, if any, actions in future years. The positive financial benefit
to small entities of the proposed change to 819.202-1 is also
considered to be minimal. The authority to expedite payments already
exists under the FAR and we expect few additional cases where this
authority will be used as a result of the proposed addition of these
provisions to the VAAR. Even where there are additional uses of this
authority, the financial benefit to small entities of expedited payment
is expected to be minimal. Therefore, under 5 U.S.C. 605(b), this
amendment is exempt from the initial and final regulatory flexibility
analysis requirements of sections 603 and 604.
List of Subjects
48 CFR Parts 801, 809, 811, 836, and 852
Government procurement, Recordkeeping and reporting requirements.
48 CFR Parts 802, 804, 805, 806, 807, 808, 812, 813, 814, 815, 816,
817, 824, 832, 837, 846, 849, 853, and 873
Government procurement.
48 CFR Part 803
Antitrust, Conflicts of interest, Government procurement.
48 CFR Part 819
Administrative practice and procedure, Government procurement,
Recordkeeping and reporting requirements, Small business, Veterans.
48 CFR Part 822
Government procurement, Labor.
48 CFR Part 825
Foreign currencies, Foreign trade, Government procurement.
48 CFR Part 828
Government procurement, Insurance, Surety bonds.
48 CFR Part 829
Government procurement, Taxes.
48 CFR Parts 831 and 842
Accounting, Government procurement.
48 CFR Part 833
Administrative practice and procedure, Government procurement.
48 CFR Part 841
Government procurement, Utilities.
48 CFR Part 847
Government procurement, Transportation.
48 CFR Part 870
Asbestos, Frozen foods, Government procurement, Telecommunications.
48 CFR Part 871
Government procurement, Loan programs-social programs, Loan
programs-veterans, Recordkeeping and reporting requirements, Vocational
rehabilitation.
Approved: May 10, 2005.
R. James Nicholson,
Secretary of Veterans Affairs.
Editorial Note: This document was received at the Office of the
Federal Register on December 21, 2005.
[[Page 2348]]
For the reasons set out in the preamble, 48 CFR Chapter 8 is
proposed to be revised to read as follows:
CHAPTER 8--DEPARTMENT OF VETERANS AFFAIRS
SUBCHAPTER A--GENERAL
Part
801 Department of Veterans Affairs Acquisition Regulations Systems.
802 Definitions of words and terms.
803 Improper business practices and personal conflicts of interest.
804 Administrative matters.
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
805 Publicizing contract actions.
806 Competition requirements.
807 Acquisition planning.
808 Required sources of supplies and services.
809 Contractor qualifications.
811 Describing agency needs.
812 Acquisition of commercial items.
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
813 Simplified acquisition procedures.
814 Sealed bidding.
815 Contracting by negotiation.
816 Types of contracts.
817 Special contracting methods.
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
819 Small business programs.
822 Application of labor laws to Government acquisitions.
823 Environment, energy and water efficiency, renewable energy
technologies, occupational safety, and drug-free workplace.
824 Protection of privacy and freedom of information.
825 Foreign acquisition.
826 Other socioeconomic programs.
SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS
828 Bonds and insurance.
829 Taxes.
830 Cost accounting standards administration.
831 Contract cost principles and procedures.
832 Contract financing.
833 Protests, disputes, and appeals.
SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING
836 Construction and architect-engineer contracts.
837 Service contracting.
839 Acquisition of information technology.
841 Acquisition of utility services.
SUBCHAPTER G--CONTRACT MANAGEMENT
842 Contract administration and audit services.
843 Contract modifications.
844 Subcontracting policies and procedures.
846 Quality assurance.
847 Transportation.
849 Termination of contracts.
SUBCHAPTER H--CLAUSES AND FORMS
852 Solicitation provisions and contract clauses.
853 Forms.
SUBCHAPTER I--DEPARTMENT SUPPLEMENTARY REGULATIONS
870 Special procurement controls.
871 Loan guaranty and vocational rehabilitation and employment
programs.
872 [Reserved].
873 Simplified acquisition procedures for health-care resources.
Subchapter A--General
PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATIONS
SYSTEM
Sec.
801.000 Scope of part.
Subpart 801.1--Purpose, Authority, Issuance
801.101 Purpose.
801.103 Authority.
801.104 Applicability.
801.104-70 Exclusions.
801.105 Issuance.
801.105-2 Arrangement of regulations.
801.106 OMB approval under the Paperwork Reduction Act.
Subpart 801.2-- Administration
801.201 Maintenance of the FAR.
801.201-1 The two councils.
Subpart 801.3--Department Acquisition Regulations
801.304 Department control and compliance procedures.
Subpart 801.4--Deviations From the FAR or VAAR
801.403 Individual deviations.
801.404 Class deviations.
Subpart 801.6--Career Development, Contracting Authority, and
Responsibilities
801.601 General.
801.602 Contracting officers.
801.602-3 Ratification of unauthorized commitments.
801.602-70 General review requirements.
801.602-71 Basic review requirements.
801.602-72 Exceptions and additional review requirements.
801.602-73 Review requirements for scarce medical specialist
contracts and contracts for health-care resources.
801.602-74 Review requirements for an interagency agreement.
801.602-75 Review requirements--OGC.
801.602-76 Business clearance review.
801.602-77 Processing solicitations and contract documents for legal
or technical review--general.
801.602-78 Processing solicitations and contract documents for legal
or technical review--Veterans Health Administration field
facilities, Central Office (except Office of Facilities Management),
the National Acquisition Center, and the Denver Distribution Center.
801.602-79 Processing solicitations and contract documents for legal
or technical review--Veterans Benefits Administration.
801.602-80 Processing solicitations and contract documents for legal
or technical review--Office of Facilities Management.
801.602-81 Documents required for business clearance reviews.
801.602-82 Documents to submit for legal or technical review--
general.
801.602-83 Documents to submit for legal or technical review--
contract modifications.
801.602-84 Documents to submit for business clearance reviews.
801.602-85 Results of OGC's review.
801.603 Selection, appointment, and termination of appointment.
801.603-1 General.
801.603-70 Representatives of contracting officers.
801.603-71 Representatives of contracting officers; receipt of
equipment, supplies, and nonpersonal services.
801.670 Special and limited delegation.
801.670-1 Issuing bills of lading.
801.670-3 Medical, dental, and ancillary service.
801.670-4 National Cemetery Administration.
801.670-5 Letters of agreement.
801.680 Contracting authority of the Inspector General.
801.690 VA's COCP.
801.690-1 Definitions.
801.690-2 General.
801.690-3 Responsibility under the COCP.
801.690-4 Selection.
801.690-5 Requirements for contracting authority.
801.690-6 Appointment.
801.690-7 Termination.
801.690-8 Interim appointment provisions.
801.690-9 Distribution of Certificates of Appointment.
801.695 VA's Appointment of HCAs program.
801.695-1 Policy.
801.695-2 Procedures for appointment of HCAs.
801.695-3 Authority of the HCA.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
801.000 Scope of part.
This part sets out general Department of Veterans Affairs (VA)
Acquisition Regulation (VAAR) policies, including information regarding
the maintenance and administration of the VAAR, acquisition policies
and practices, and procedures for deviation from the VAAR and the
Federal Acquisition Regulation (FAR).
Subpart 801.1--Purpose, Authority, Issuance
801.101 Purpose.
(a) VA established the VAAR to codify and publish uniform policies
and
[[Page 2349]]
procedures for VA's acquisition of supplies and services, including
construction.
(b) The VAAR implements and supplements the FAR.
801.103 Authority.
The Secretary issues the VAAR under the authority of 40 U.S.C.
121(c), Title 48 of the Code of Federal Regulations (CFR) 1.301 through
1.304, and other authorities as cited.
801.104 Applicability.
(a) Unless otherwise specified in this chapter or excepted by
statute (i.e., expenditures of the VA Canteen Service) or other VA
regulations, the FAR and VAAR apply to all VA acquisitions (including
construction) made with appropriated funds. Supply Fund monies (38
U.S.C. 8121) and General Post Funds (38 U.S.C. 8302) are appropriated
funds.
(b) Use the VAAR and the FAR together. The FAR applies to VA
acquisitions except as provided in the VAAR.
801.104-70 Exclusions.
The FAR and VAAR do not apply to purchases and contracts that use
General Post Funds if using the FAR and the VAAR would infringe upon a
donor's right to specify the exact item to be purchased and/or the
source of supply (38 U.S.C. 8303).
801.105 Issuance.
801.105-2 Arrangement of regulations.
(a) General. The VAAR is divided into subchapters, parts (each of
which covers a separate aspect of acquisition), subparts, sections, and
subsections.
(b) Numbering. (1) The numbering system permits the discrete
identification of every VAAR paragraph. The digits to the left of the
decimal point represent the part number. The numbers to the right of
the decimal point and to the left of the dash represent, in order, the
subpart (one or two digits), and the section (two digits). The number
to the right of the dash represents the subsection. Subdivisions may be
used at the section and subsection level to identify individual
paragraphs.
(2) Subdivisions below the section or subsection level consist of
parenthetical alphanumerics using the following sequence:
(a)(1)(i)(A)(1)(i)
(c) References and citations. (1) Unless otherwise stated, cross-
references indicate parts, subparts, sections, subsections, paragraphs,
subparagraphs, or subdivisions of this chapter.
(2) This chapter may be referred to as the Department of Veterans
Affairs Acquisition Regulation or the VAAR.
(3) Using the VAAR coverage at 809.106-4(c) as a typical
illustration, reference to the--
(i) Part would be ``VAAR Part 809'' outside the VAAR and ``Part
809'' within the VAAR.
(ii) Subpart would be ``VAAR Subpart 809.1'' outside the VAAR and
``Subpart 809.1'' within the VAAR.
(iii) Section would be ``VAAR 809.106'' outside the VAAR and
``809.106'' within the VAAR.
(iv) Subsection would be ``VAAR 809.106-4'' outside the VAAR and
``809.106-4'' within the VAAR.
(v) Paragraph would be ``VAAR 809.106-4(c)'' outside the VAAR and
``809.106-4(c)'' within the VAAR
(4) Citations of authority (e.g., statutes or Executive orders) in
the VAAR shall follow the Federal Register form guides.
801.106 OMB approval under the Paperwork Reduction Act.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3521), the Office of Management and Budget (OMB) has approved the
reporting and recordkeeping provisions that are included in the VAAR
and has given VA the following approval numbers:
------------------------------------------------------------------------
Current OMB
48 CFR part or section where identified and described control No.
------------------------------------------------------------------------
809.106-1.................................................. 2900-0418
809.504(d)................................................. 2900-0418
813........................................................ 2900-0393
832.006-4.................................................. 2900-xxxx
832.202-4.................................................. 2900-xxxx
836.606-71................................................. 2900-0208
852.207-70................................................. 2900-0590
852.209-70................................................. 2900-0418
852.211-70................................................. 2900-0587
852.211-71................................................. 2900-0588
852.211-72................................................. 2900-0586
852.211-73................................................. 2900-0585
852.214-70................................................. 2900-0593
852.228-71................................................. 2900-0590
852.236-72................................................. 2900-0422
852.236-79................................................. 2900-0208
852.236-80 (Alt. I)........................................ 2900-0422
852.236-82 through 852.236-84.............................. 2900-0422
852.236-88................................................. 2900-0422
852.236-89................................................. 2900-0622
852.236-91................................................. 2900-0623
852.237-7.................................................. 2900-0590
852.270-3.................................................. 2900-0589
------------------------------------------------------------------------
Subpart 801.2--Administration
801.201 Maintenance of the FAR.
801.201-1 The two councils.
Revisions to the FAR are prepared and issued through the
coordinated action of two councils, the Defense Acquisition Regulations
Council and the Civilian Agency Acquisition Council. A designee of the
Office of Management will represent VA on the Civilian Agency
Acquisition Council.
Subpart 801.3--Department Acquisition Regulations
801.304 Department control and compliance procedures.
The Assistant Secretary for Management is designated as the
Department's Chief Acquisition Officer and Senior Procurement Executive
(SPE). The Deputy Assistant Secretary for Acquisition and Materiel
Management is designated as the Department's Deputy Senior Procurement
Executive (DSPE). The DSPE is responsible for review of the VAAR and
amendments to the VAAR for compliance with FAR 1.304.
Subpart 801.4--Deviations From the FAR or VAAR
801.403 Individual deviations.
(a) Authority to authorize individual deviations from the FAR and
VAAR is delegated to the SPE and is further delegated to the DSPE.
(b) When a contracting officer considers it necessary to deviate
from the policies in the FAR or VAAR, the contracting officer must
submit a request to the DSPE for authority to deviate.
(c) The request to deviate must clearly state the circumstances
warranting the deviation and the nature of the deviation. The head of
the contracting activity (HCA) must sign the request.
(d) The DSPE may authorize individual deviations from the FAR and
VAAR when an individual deviation is in the best interest of the
Government. When the DSPE authorizes a deviation, the contracting
officer must file the authorization in the purchase order or contract
file.
801.404 Class deviations.
Authority to authorize class deviations from the FAR and VAAR is
delegated to the SPE and is further delegated to the DSPE. The DSPE may
authorize class deviations from the FAR and VAAR when a class deviation
is in the best interest of the Government. The DSPE must comply with
the provisions of FAR 1.404 through the SPE.
[[Page 2350]]
Subpart 801.6--Career Development, Contracting Authority, and
Responsibilities
801.601 General.
(a) A designating official may appoint a contracting officer under
FAR 1.603 and VA's Contracting Officer Certification Program (COCP).
(b) The HCA may delegate micro-purchase authority to VA employees
under the VA's purchase card program.
(c) An individual may not commit the Government for purchases of
supplies, equipment, or services unless the individual has received
delegated contracting authority. Individuals making such commitments or
acting beyond the scope of their authority may be held financially
liable.
801.602 Contracting officers.
(a) Except as otherwise provided by statute, VA regulations, the
VAAR, or the FAR, the authority vested in the Secretary to do the
following is delegated to the SPE and is further delegated from the SPE
to the DSPE:
(1) Execute, award, and administer contracts, purchase orders, and
other agreements (including interagency agreements) for the expenditure
of funds for construction and the acquisition of personal property and
services (including architect-engineer services).
(2) Issue bills of lading.
(3) Sell personal property.
(4) Enter into leases, sales agreements, and other transactions.
(5) Prescribe and publish acquisition policies and procedures.
(6) Establish clear lines of contracting authority.
(7) Manage and enhance career development of the procurement work
force.
(8) Examine, in coordination with the Office of Federal Procurement
Policy, the procurement system to determine specific areas where VA
should establish and apply Government-wide performance standards, and
to participate in developing Government-wide procurement policies,
regulations, and standards.
(9) Oversee the competition advocate program.
(b) The DSPE may further delegate authority to execute, award, and
administer contracts, purchase orders, and other agreements to other VA
officials, such as HCAs and contracting officers, in accordance with
the COCP.
801.602-3 Ratification of unauthorized commitments.
(a) This section applies to unauthorized commitments, including any
commitment made by a contracting officer that exceeds that contracting
officer's contracting authority and unauthorized commitments made by
individuals who lack contracting authority.
(b) A contracting officer must not ratify unauthorized commitments
made by other VA personnel or by another contracting officer who lacks
authority without prior approval as specified in paragraphs (b)(1)
through (b)(3) of this section. The specified approval authorities may
not be re-delegated.
(1) At field facilities, for supplies, services (except leases of
real property), and construction, the approving authority for
unauthorized commitments made by staff assigned to a field facility is
the Director of the field facility concerned.
(2) For VA Central Office (VACO) organizations, for supplies,
services (except leases of real property), and construction, the
approving authorities for unauthorized commitments made by staff
assigned to the Administrations are the respective chief financial
officers of the Administrations concerned. The approving authority for
unauthorized commitments made by staff assigned to any other
organization within VACO is the Deputy Assistant Secretary for
Acquisition and Materiel Management.
(3) For unauthorized commitments for leasehold interest in real
property, the approving authority is:
(i) The Chief Facilities Management Officer, Office of Facilities
Management, for unauthorized commitments for 1-5,000 square feet of
space or for 1-100 parking spaces costing less than $50,000 per annum.
(ii) The Under Secretary for Health for unauthorized commitments
for 5,001-20,000 square feet of space or for more than 100 parking
spaces costing less than $100,000 per annum.
(iii) The Deputy Secretary for 20,001 square feet of space and
above or for more than 100 parking spaces costing more than $100,000
per annum.
(c) The process for contracting officer requests for ratification
will be as follows:
(1) The individual who made the unauthorized commitment will
furnish the contracting officer with all records and documents
concerning the commitment and a complete written statement of facts
that includes the following:
(i) Why the procurement office was not used.
(ii) Why the proposed contractor was selected.
(iii) Other sources that were considered.
(iv) A description of work to be performed or products to be
furnished.
(v) The estimated or agreed contract price.
(vi) A citation of the appropriation available.
(vii) A statement of whether the contractor has commenced
performance.
(viii) The name of the individual responsible for the unauthorized
commitment.
(2) The contracting officer will review the file and forward it to
the approving authority specified in paragraph (b) of this section with
any comments or information that the approving authority should
consider in evaluating the request for ratification. If the approving
authority determines that a legal review would be desirable, the
approving authority will coordinate the request for ratification with
the Office of the General Counsel (OGC) or the Regional Counsel, as
appropriate.
(3) If the approving authority authorizes the ratification, the
approving authority will return the file to the contracting officer for
issuance of a purchase order or contract, as appropriate.
(d) If an otherwise proper contract award exceeds the limits of the
contracting officer's delegated authority, the ratifying contracting
officer must comply with the above requirements and the approving
authority must inform the HCA. The HCA will take action to preclude
future instances of such awards.
801.602-70 General review requirements.
(a) Contracting officers shall ensure that any document listed
under 801.602-71 through 801.602-76 that is submitted for technical or
legal review is submitted through or by an official at least one level
above the contracting officer.
(b) Before opening a bid, awarding a contract, or signing a
contract-related document as specified in 801.602-71 through 801.602-
76, the contracting officer shall ensure that the appropriate VA
official, including appropriate staff of the Acquisition Resources
Service regional or central office, has reviewed and concurred with the
document.
(c) Before signing a contract for a Veterans Benefits
Administration field facility for any guidance center or vocational
rehabilitation service with an anticipated expenditure of $100,000 or
more, the contracting officer shall ensure that the Director,
Vocational Rehabilitation and Employment Service, has reviewed and
approved the solicitation or proposed contract.
(d) When the following items are for the management, sale, or lease
of properties acquired by VA after liquidation of a guaranteed, direct,
[[Page 2351]]
acquired, or vendee loan, the review requirements specified in 801.602-
71 through 801.602-76 do not apply:
(1) Agreements.
(2) Licenses.
(3) Easements.
(4) Deeds.
(e) If there is insufficient time for the legal review required in
801.602-75(a)(3), the contracting officer (except contracting officers
in the Office of Facilities Management) must at least obtain verbal
concurrence from Acquisition Resources Service staff before issuing a
change order where:
(1) The change order (unilateral agreement) has an anticipated
value of $100,000 or more; or
(2) The change order is for a time extension of 60 days or more.
(f) Unless otherwise stated, all dollar values in 801.602-71
through 801.602-76 are expressed in total dollars involved in the
acquisition action.
(1) The contracting officer may not consider the positive and
negative status of the figures in determining the total dollar values
involved.
(2) An acquisition of $550,000 with a trade-in credit of $70,000
would be valued at $620,000 for legal or technical review purposes
rather than the net amount of $480,000. An Energy Savings Performance
Contract requiring payment from savings of $10,000,000 to the
contractor over the life of the contract would be valued at
$10,000,000, despite the fact that there is no immediate cost to VA and
no payment if there are no savings.
(g) The DSPE may require technical review of any contract-related
materials, regardless of dollar value.
(h) Except as set forth in 801.602-73 and 801.602-75, at its
discretion, the Office of Acquisition and Materiel Management may
request OGC review.
(i) The requirements of this section or sections 801.602-71 through
801.602-76 do not apply to contracts awarded by or on behalf of the VA
Office of Inspector General.
(j) Contracting officers and purchase cardholders must ensure
compliance with separate guidance on information technology (IT)
tracking and approval prior to processing requests for acquisitions of
IT and telecommunications software, equipment, and/or services,
regardless of dollar value.
801.602-71 Basic review requirements.
Contracting officers must obtain technical review from Acquisition
Resources Service staff of the documents set forth in column one of
Table 801.602-71 that have anticipated award values equal to or greater
than the value in column two.
Table 801.602-71
------------------------------------------------------------------------
Document Anticipated contract award value
------------------------------------------------------------------------
(a) Supply or service $500,000 or more.
solicitations or quotations
(except as provided in 801.602-72
through 801.602-75) (includes
indefinite quantity, option year,
and multi-year solicitations or
quotations where the contracting
officer reasonably expects
expenditures of $500,000 or more,
inclusive of options).
(b) Supply or service $750,000 or more.
solicitations or quotations where
a consolidated acquisition
activity is performing
acquisitions for three or more
physically separated VA medical
centers (excluding outpatient
clinics).
(c) Fixed price, sealed bid $1 million or more.
construction solicitations, other
than 8(a) construction
solicitations.
(d) 8(a) construction $500,000 or more.
solicitations and task orders.
(e) Request for Proposal $500,000 or more.
(negotiated) construction
solicitations and task orders.
(f) Proposed task/delivery orders $500,000 or more.
and blanket purchase agreements
(includes orders under Federal
Supply Schedule contracts).
(g) Proposed cost-reimbursement, $100,000 or more.
incentive, time-and-materials,
and labor-hour contracts (see
816.102(b).
(h) Utility service agreements.... $50,000 or more.
(i) Solicitations for advisory and $100,000 or more.
assistance services (see 837.2).
(j) Proposed letter contracts and $25,000.
ensuing formal contracts.
------------------------------------------------------------------------
801.602-72 Exceptions and additional review requirements.
(a) In addition to the general review requirements in 801.602-71,
contracting officers must obtain technical reviews from Acquisition
Resources Service staff of any proposed agreement that is unique,
novel, or unusual.
(b) Contracting officers must obtain technical reviews from
Acquisition Resources Service staff of the following documents relating
to contracts requiring bonds (see FAR 28.102-1 and 28.203 through
28.203-5):
(1) An irrevocable letter of credit.
(2) A tripartite escrow agreement.
(3) An individual surety bond.
(c) Contracting officers must obtain technical review from
Acquisition Resources Service staff of each proposed novation and
change-of-name agreement (see FAR Subpart 42.12).
(d) Contracting officers must obtain technical review from
Acquisition Resources Service staff of any solicitation or proposed
contract containing an economic price adjustment clause based on a cost
index of material or labor (e.g., the urban consumer price index (CPI-
U) (see FAR 16.203-4(d)) or where one of the economic price adjustment
clauses specified in FAR 16.203-4 are used.
(e) Contracting officers must obtain technical review from
Acquisition Resources Service staff of any proposed multi-year contract
where the cancellation ceiling exceeds 20 percent of the contract
amount, regardless of the dollar value of the proposed contract (see
817.105-1(b)).
(f) Contracting officers must obtain technical review from
Acquisition Resources Service staff of any proposed solicitation where
the contract term total of the basic and option periods will exceed 5
years, regardless of the dollar value of the proposed acquisition (see
817.204).
(g) Contracting officers must obtain technical review from
Acquisition Resources Service staff of a proposed membership agreement
in a group purchasing organization.
(h) Contracting officers must obtain technical review from
Acquisition Resources Service staff of proposed termination settlements
or determinations of amounts due the contractor under a terminated
contract that involve the expenditure of $100,000 or more of Government
funds. Acquisition Resources Service staff shall obtain legal review.
(See 849.111-70).
(i) Contracting officers must obtain technical review from
Acquisition Resources Service staff of each consignment agreement with
an anticipated expenditure of $250,000 or more per year (except for a
consignment agreement established under, and provided for in, a Federal
Supply Schedule contract).
[[Page 2352]]
(j) Contracting officers, including purchase cardholders, must
obtain technical and legal review of all proposed contracts for
conferences where VA's commitment, expenditure, and liability
(combined) exceed $25,000. This dollar figure is based on the
combination of all direct costs to VA under the contract (e.g.,
conference rooms, audio-visual charges, refreshments, catering, etc.)
and all potential liability (e.g., room guarantee liability,
cancellation costs). Even if there is no direct cost to VA, if the
proposed contract includes a guarantee on room usage or a cancellation
fee that could potentially exceed $25,000, the proposed contract
requires legal and technical review. Signing a contract committing VA
to hold a conference at a particular hotel is a procurement, and
procurement laws and regulations must be followed.
801.602-73 Review requirements for scarce medical specialist contracts
and contracts for health-care resources.
For contracts to be awarded under the authority of either 38 U.S.C.
7409 or 38 U.S.C. 8153, contracting officers must obtain technical and
legal reviews from the Medical Sharing Office, OGC, and Acquisition
Resources Service staff of the following documents:
(a) Each competitive solicitation, quotation, proposed contract, or
agreement with an anticipated contract award value of $1,500,000 or
more, inclusive of options.
(b) Each noncompetitive solicitation, quotation, proposed contract,
or agreement with an anticipated contract award value of $500,000 or
more, inclusive of options.
801.602-74 Review requirements for an interagency agreement.
Contracting officers or other staff must obtain technical review
from Acquisitions, Operations, and Analysis Service staff of the
following documents:
(a) Each proposed VA Central Office interagency agreement with
another Federal agency to be awarded under authority of the Economy
Act, regardless of dollar value. For the VA Central Office, only the
DSPE or designee may sign an interagency agreement.
(b) Each proposed VA field facility interagency agreement with
another Federal agency awarded under authority of the Economy Act,
involving an anticipated expenditure of $250,000 or more. A VA field
facility contracting officer or a contracting officer at the VA
National Acquisition Center or the Denver Distribution Center may sign
an interagency agreement if the dollar threshold is within the
contracting officer's warrant limit.
801.602-75 Review requirements--OGC.
(a) Contracting officers must obtain legal review or concurrence
from OGC for the following categories of proposed contractual actions.
(1) Each contract termination, final decision, cure letter, or
``show cause'' notice proposed under any contract where the total value
of the contract is $100,000 or more. A contracting officer may not sign
or release a document subject to this provision until OGC has
concurred.
(2) Each dispute or claim from a contractor involving a potential
total dollar value of $100,000 or more. A contracting officer may not
sign or release a document subject to this provision until OGC has
concurred.
(3) Each proposed contract modification, including any proposed
modification to a supply or service contract, where the total value of
the modification is $100,000 or more (e.g., a modification for a
$60,000 increase and a $50,000 decrease equals $110,000).
(4) Each proposed contract modification granting a time extension
of more than 60 days. The Director, Acquisition Resources Service, may
waive the pre-approval requirement under this paragraph for an
individual facility when the Director determines that the facility has
obtained appropriate ``consideration'' for past time extensions and the
extensions were otherwise appropriately granted.
(5) Each proposed modification increasing the value of a letter
contract, regardless of dollar value.
(6) Each proposed contract modification for which the contractor
takes exception to the accord and satisfaction language specified by
VA. The contracting officer may not execute any proposed contract
modification under this requirement until the contracting officer
receives OGC's concurrence in the proposed language.
(7) An assignment of claims (see FAR Subpart 32.8).
(8) Each change or revision to a FAR or VAAR provision or clause or
an internal VA-approved clause (e.g., architect/engineer ``SP''
clauses) not specifically authorized by the regulations.
(9) Each change or revision to a prescribed VA contract form.
(10) A proposed utility construction or connection contract with an
anticipated contract award value of $50,000 or more.
(11) Each proposed novation and change-of-name agreement (see
842.1203).
(b) For an action specified in paragraph (a)(1) or (2) of this
section, OGC may comment or concur in writing or by telephone.
(c) When a Central Office contracting activity requests legal
assistance, the contracting officer will brief OGC on the facts and
points of issue to facilitate prompt resolution.
(d) For each solicitation or contract awarded and administered by a
Central Office contracting activity, that contracting activity will ask
OGC to participate in conferences where legal problems or modifications
to contract provisions may be considered and in meetings attended by
legal representatives of private parties or other Government agencies.
The contracting activity will request assigned procurement counsel
participation in drafting correspondence involving significant
controversial or sensitive contractual matters.
(e) OGC will prepare any response to the Government Accountability
Office (GAO) on GAO bid protests. (See 833.104).
801.602-76 Business clearance review.
(a) A business clearance review is a technical review of all
solicitation and contract award or modification documents immediately
prior to contract award or modification over the specified dollar
threshold.
(b) All VA contracting officers must obtain a business clearance
review prior to award of any contract, task or delivery order, or
blanket purchase agreement or execution of any contract modification
with a value of $5 million or more, or prior to award of any lease with
a value of $300,000 or more per year.
(c) The dollar threshold in this paragraph is based on the total
dollar value of all awards expected under a single solicitation, not
the value of each individual award under a solicitation. For example, a
solicitation for home oxygen for a VISN might result in multiple
awards, each of which has a value of less than $5 million. If the total
of all awards under that solicitation will exceed $5 million, the
contracting officer must obtain a business clearance review of the
entire package, including all proposed individual awards.
801.602-77 Processing solicitations and contract documents for legal
or technical review--general.
(a) Under 801.602-70 through 801.602-76, before taking contract
action, a contracting officer must ensure
[[Page 2353]]
that any required legal or technical review or concurrence is complete.
Contracting officers shall not award or sign contracts, task or
delivery orders, blanket purchase agreements, or contract modifications
prior to receipt of the final legal and technical review. Should the
contracting officer disagree with the advice provided, the contracting
officer shall document in the contract file the reasons therefore and
provide a copy of that document to the reviewing Office of Acquisition
and Materiel Management office. The contracting officer must fully
implement any accepted review comments as follows:
(1) Before opening the bid or proposal for a competitively awarded
contract.
(2) Before executing contract documents for a contract modification
or noncompetitive contract award.
(b) The contracting officer must advise potential bidders or
offerors of changes made to the solicitation by issuing an amendment.
The contracting officer must give bidders and offerors sufficient time
for evaluation before the bid or proposal opens.
801.602-78 Processing solicitations and contract documents for legal
or technical review--Veterans Health Administration field facilities,
Central Office (except Offices of Facilities Management), the National
Acquisition Center, and the Denver Distribution Center.
(a) If legal or technical review is required, the documents listed
in Table 801.602-78 must be forwarded for review and approval as shown
therein.
Table 801.602-78
------------------------------------------------------------------------
Documents Person forwarding Forward to
------------------------------------------------------------------------
(1) Proposed solicitations, Contracting Appropriate
quotations, contract-related officer. Acquisition
documents, and agreements Resources central
specified in Table 801.602.71 or regional
and in 801.602-72. office.
(2) Scarce medical specialist Contracting Medical Sharing
and health-care resource officer. and Purchase
solicitations, quotations, and Office.
proposed contracts (i.e.,
contracts to be awarded under
the authority of 38 U.S.C. 7409
or 8153) specified in 801.602-
73.
(3) Interagency agreements Approving DSPE.
specified in 801.602-74. official,
contracting
officer.
(4) Proposed contract Contracting OGC.
modifications, proposed officer.
contract modifications for
which the contractor takes
exception to the accord and
satisfaction language VA
specifies, assignment of
claims, changes to clauses, and
proposed utility connection
agreements specified in 801.602-
75(a)(3) through (a)(7) and in
801.602-75(a)(9) and (a)(10).
(5) Proposed contract Contracting Regional Office of
terminations, final decisions, officer. the General
cure letters, show cause Counsel.
notices, disputes, and claims
specified in 801.602-75(a)(1)
and (a)(2).
------------------------------------------------------------------------
(b) The director of the Acquisition Resources Service office
conducting the technical review has authority to determine whether to
forward documents for legal review.
(c) When the contractor takes exception to the accord and
satisfaction language VA specifies in a proposed contract modification,
the contracting officer must not sign the modification until OGC
concurs with the language proposed by the contractor.
(d) The contracting officer either must fax or send via overnight
mail all of the relevant documents on proposed contract terminations,
final decisions, cure letters, show cause notices, disputes, and claims
specified in 801.602-75(a)(1) and (a)(2). OGC will provide concurrence
or comments either in writing or by telephone. The contracting officer
must not sign or release a document to the contractor until OGC
concurs.
(e) For any VA contract form subject to legal review under 801.602-
75(a)(8), the contracting officer must process the change or revision
in accordance with VA Manual MP-1, Part II, Chapter 4 and any
supplements to it (http://www.va.gov/publ/direc/benefits/
mp1p2ch4.htm).
801.602-79 Processing solicitations and contract documents for legal
or technical review--Veterans Benefits Administration.
(a) A Veterans Benefits Administration contracting officer must
ensure that proposed solicitations, quotations, contract-related
documents, and agreements listed in Table 801.602-71 are reviewed by
the Office of Resource Management prior to document execution. The
Office of Resource Management must request legal review of all these
documents.
(b) A Veterans Benefits Administration contracting officer must
ensure that proposed solicitations or agreements for guidance center
and vocational rehabilitation services are reviewed by the Director,
Vocational Rehabilitation and Employment Service, if there is an
anticipated expenditure of $100,000 or more.
801.602-80 Processing solicitations and contract documents for legal
or technical review--Office of Facilities Management.
An Office of Facilities Management contracting officer must submit
items specified in 801.602-71, 801.602-72 and 801.602-75 directly to
OGC for review.
801.602-81 Documents required for business clearance reviews.
When a bid or offer, proposed contract modification, or proposed
lease requires a business clearance review under 801.602-76, the
contracting officer must forward the required documents (see 801.602-
84) and the following information to the appropriate Acquisition
Resources Service central or regional office (Office of Facilities
Management contracting officers shall forward the documents to the
Office of the General Counsel (025)):
(a) The date on which award is anticipated.
(b) Results or efforts made to determine whether the contractor is
responsible under FAR Subpart 9.4.
[[Page 2354]]
(c) A determination of price reasonableness.
(d) An explanation (e.g., the source selection decision as
specified in FAR 15.308) if the contracting officer proposes an award
to a contractor other than the low responsible bidder or offeror.
801.602-82 Documents to submit for legal or technical review--general.
Table 801.602-82 specifies the documents that must be submitted
when a legal or technical review is required.
Table 801.602-82
------------------------------------------------------------------------
Action or document subject to review Documents to submit
------------------------------------------------------------------------
(a) Proposed construction contract..... One copy of each solicitation
document, excluding drawings.
Submit not later than the date
on which the contracting
officer furnishes the
documents to prospective
bidders.
(b) Proposed solicitation contract for One copy of the solicitation or
scarce medical specialist services or proposed or contract and
health-care resources. documents required under VA
Manual M-1, Part 1, Chapter
34.
(c) All other proposed solicitations, One copy of each document to be
contracts, and agreements. used in the contract
solicitation or award, and any
other document that supports
the proposed procurement
action. Submit not later than
the date on which the
contracting officer furnishes
the documents to prospective
bidders.
------------------------------------------------------------------------
801.602-83 Documents to submit for legal or technical review--contract
modifications.
(a) The documents specified in this section related to proposed
contract modifications must be submitted to Acquisition Resources
Service for review under one or more of the following conditions:
(1) When the total modification value is $100,000 or more.
(2) When the modification is for a time extension of 60 days or
more.
(3) Where the contractor takes exception to VA's accord and
satisfaction language.
(b) The contracting officer must submit the following documents for
review:
(1) A draft of the proposed modification prepared on SF 30,
Amendment of Solicitation/Modification of Contract, specifying the
exact language proposed and describing any change in work, time, or
cost.
(2) A statement describing the need for the changed work with any
back-up documentation, including a copy of the general statement of
work in the original contract and any existing contract language that
will be modified.
(3) A statement addressing whether the proposed modification is
within the original scope of the contract and specifically addressing
the facts considered in reaching the conclusion.
(4) A statement analyzing what necessitated the modification (e.g.,
a design error, technical changes, or medical center requirements).
(5) The contracting officer's technical representative's (COTR)
technical evaluation of the proposed change.
(6) A memorandum from the appropriate office indicating that funds
are available or a statement concerning the actions that must be taken
to secure the required funds.
(7) The names and telephone numbers of the contracting officer and
COTR.
(8) Costing information including the following:
(i) The contractor's cost proposal in the format required by the
contract.
(ii) The COTR's independent cost evaluation.
(iii) The architect/engineer's independent cost evaluation, if
applicable and available.
(iv) The contracting officer's Price Negotiation Memorandum under
FAR 15.406-3.
(v) Any other relevant costing information, such as independent
market research, that VA used or will use as negotiation criteria.
(c) For a proposed modification to an architect/engineer contract,
the contracting officer must submit for review each document specified
in paragraph (b) of this section and the following additional
documents.
(1) A listing of the fees awarded in the original contract and
previous modifications.
(2) For a working drawing contract, a statement regarding the
actual or estimated cost of the original construction and any estimated
change to the overall project cost as a result of the proposed
modification.
(d) For a modification to a construction contract or, where
applicable, to an architect/engineer contract, the contracting officer
must submit for review a copy of the COTR's mark-up of any drawing that
delineates the proposed changed work, including a copy of any pertinent
technical specifications. When there is a proposed modification
involving numerous changes to drawings and specifications for a VA
Central Office project, the drawings and specifications must be
available for review in the Office of the Project Director in VA
Central Office.
801.602-84 Documents to submit for business clearance reviews.
A contracting officer must submit to Acquisition Resources Service
(Office of Facilities Management contracting officers shall forward the
documents to the Office of the General Counsel (025)) for review copies
of the following documents when a business clearance review is required
in accordance with 801.602-76:
(a) The request for contract action, including a justification of
need (i.e., the using service purchase request).
(b) The solicitation.
(c) The abstract of the subject bid or offer.
(d) Any applicable Price Negotiation Memorandum.
(e) A statement of the contracting officer's rationale for award.
(f) Any applicable justification and approval under FAR 6.303 and
6.304.
(g) Documents relevant to determining whether the contractor is
responsible, including:
(1) Verification that the vendor is not suspended, debarred, or on
the Department of Health and Human Services Exclusionary List;
(2) Verification that the vendor has filed any required VETS 100
report (not required if the acquisition is for a commercial item); and
(3) For acquisitions exceeding $10 million, the Equal Employment
Opportunity Clearance.
(h) Any applicable approved subcontracting plan.
(i) Documents relevant to price reasonableness.
801.602-85 Results of OGC's review.
(a) When its review is complete, OGC will advise the appropriate
Central Office activity or contracting officer that the proposal was
approved as submitted or provide them with recommended
[[Page 2355]]
changes. If the Central Office activity is notified, the Central Office
activity will forward the information to the contracting officer.
(b) When changes are recommended by OGC, if the contracting officer
concurs, the contracting officer must take immediate action to amend
the document. If the contracting officer does not concur, the
contracting officer must discuss the recommended changes with the
attorney involved and document in the contract file the reasons why the
contracting officer is not following OGC's recommendations.
(c) OGC will complete its review as expeditiously as possible, with
due regard for procurement actions that require an unusually short
period for completing the procurement.
801.603 Selection, appointment, and termination of appointment.
801.603-1 General.
VAAR 801.690 through 801.690-9 and 801.670 establish the policy and
procedures for selecting, appointing, and terminating a contracting
officer.
801.603-70 Representatives of contracting officers.
(a) In carrying out the responsibilities of FAR 1.602-2, the
contracting officer may designate another Government employee or
another contractor as COTR to perform the functions in this section and
801.603-71.
(1) Except as indicated in 801.603-71, a designation under this
section must be written, must define the scope and limitation of the
representative's authority, and must be addressed to the COTR with a
copy forwarded to the contractor.
(2) The COTR may not re-delegate authority received under this
paragraph.
(3) The contracting officer may not authorize a representative to
make any commitment or change that will affect the price, quantity,
quality, or delivery terms of a contract.
(4) A contracting officer acting within his or her warranted
contracting authority must authorize any change to a contract.
(b) A contracting officer may authorize his or her technical
representative to do the following:
(1) Furnish technical guidance and advice or generally supervise
the work performed under the contract.
(2) Take any action authorized in the contract, such as issuing a
delivery order, rejecting an unsatisfactory item, ordering a
replacement of an unsatisfactory item (materials or services) or
declaring a contractor in default on specific delivery orders.
(i) Except for a contract for blood, the contracting officer may
delegate this authority only to other Government contracting officers
under centralized indefinite delivery type contracts and the contract
will so state.
(ii) A centralized contract for blood must state that a contracting
officer at an ordering office may designate representatives and
alternate representatives to place a delivery order subject to the same
restrictions in paragraph (b)(3) of this section.
(3) Place an oral or other informal delivery order for items such
as, but not limited to, bread, milk, and blood against a local
indefinite delivery type contract for which there is a blanket purchase
arrangement and for which funds have been obligated.
(c) In the administration of research and development contracts,
any representative appointed under this section must be acceptable to
the contracting officer and the administration head or staff office
director concerned.
(d) When the contracting officer intends to designate a
representative under this section for a particular solicitation or
contract, the contracting officer must include the clause in 852.270-1,
Representatives of Contracting Officers, in the solicitation and
contract.
801.603-71 Representatives of contracting officers; receipt of
equipment, supplies, and nonpersonal services.
(a) Without prior notification to the contractor or vendor, the
contracting officer may designate other competent personnel to
represent him or her to receive and inspect supplies, equipment and
services at a VA facility. The COTR may perform duties such as, but not
limited to, the following:
(1) Inspect and certify compliance with the quality and quantity
requirements of the purchase order or contract.
(2) Inspect supplies and equipment for condition and quantity and
accept supplies, equipment, and services, based on quality inspection
made by another authorized representative.
(b) The Director, Library Services, VA Central Office, and the
Chief, Library Service, at a field facility may act as representatives
of the contracting officer to receive, inspect and accept library
books, newspapers, and periodicals. Purchase documents will specify
that delivery will be made directly to the library.
801.670 Special and limited delegation.
The authority vested in the Secretary to execute, award, and
administer a contract, purchase order, or other agreement for the
expenditure of funds to acquire the specific services set forth in
801.670 through 801.670-4 is delegated to the SPE. The SPE further
delegates this authority to the DSPE and to employees appointed or
designated to the positions specified in these sections.
801.670-1 Issuing bills of lading.
The authority to issue bills of lading previously contained in this
section is rescinded. Except for individual small package shipments
(e.g., United Parcel Service, Federal Express, or United States Postal
Service small package shipments), no VA employee may issue a bill of
lading or otherwise procure transportation services for goods unless
the employee has been delegated authority to do so as a warranted
contracting officer under the VA Contracting Officer Certification
Program (ref. 801.690). All transportation services for goods, other
than for small package shipments, require a bill of lading. Except for
individual small package shipments, individuals with only micro-
purchase authority may not issue bills of lading or otherwise procure
transportation services. The dollar value of the bill of lading issued
or transportation services acquired must not exceed the delegated
authority of the contracting officer. Candidates for appointment as
transportation contracting officers whose delegated authority will be
limited to the acquisition of transportation services for goods only
shall comply with the Education, Experience, and Core Training
requirements, if any, in Part 102-117 of title 41 Code of Federal
Regulations, the Federal Management Regulation, rather than the
requirements in 801.690.
801.670-3 Medical, dental, and ancillary service.
(a) When medical, dental, and ancillary services under $10,000 per
authorization are not available from an existing contract or agreement,
the following VA officials at VA medical facilities may authorize these
services:
(1) The Chief of Staff and the physician assigned the
responsibility for the ambulatory care function.
(2) Chief, Medical Administration Service.
(3) Person designated by the facility director to perform medical
administration functions.
(b) Forms specified in Part 853 shall be used for ordering services
under this paragraph from existing contracts.
(c) The officials named in paragraph (a) of this section may
designate one or more of their subordinates to exercise
[[Page 2356]]
the authority in paragraph (a) of this section.
(d) A designation under this section must be in writing and
specifically set forth the scope and limitations of the designee's
authority.
801.670-4 National Cemetery Administration.
The Directors of Logistics Management Service, the Centralized
Contracting Division, and the Construction Support Division are
authorized to procure supplies, equipment and non-personal services
(including construction) for National Cemetery Administration (NCA)
field facilities and other NCA offices when there is an emergency
during which the servicing supply organization cannot be used.
801.670-5 Letters of agreement.
(a) Letters of agreement shall not be used. The authority
previously contained in this section is rescinded.
(b) The VA Office of Inspector General may issue contracts for
commercial items, including services, using a letter format (see FAR
12.204(a)), provided billing information and required clauses are
included in the contract. If the dollar value of the acquisition will
exceed the simplified acquisition threshold, this is a deviation from
the requirement to use Standard Form 1449 at FAR 12.204(a).
801.680 Contracting authority of the Inspector General.
(a) Under section 6(a) of Public Law 95-452 (October 12, 1978), the
Inspector General may do the following:
(1) Contract or arrange for audits, studies, analyses, and other
services with public agencies and with private persons.
(2) Make payments necessary to carry out the provisions of the Act,
to the extent and in amounts provided in advance by appropriations
acts.
(b) In exercising the special authority provided in paragraph (a)
of this section, the Inspector General may ask the servicing head of
the contracting activity for assistance in developing appropriate
contract or agreement documents.
(c) The FAR applies to contracts made under paragraph (a) of this
section. Such contracts also are subject to provisions of the VAAR that
implement and supplement the FAR on matters other than those stemming
from or related to delegations of the Secretary's contracting
authority. (For example, management controls and approvals specified in
Subpart 837.2 will not apply to contract actions under the contract
authority of the Inspector General.)
801.690 VA's COCP.
The provisions of 801.690 through 801.690-9 establish the policy
and procedures for the VA-wide Contracting Officer Certification
Program (COCP).
801.690-1 Definitions.
Accredited college or university means a college or university that
has been accredited by an accrediting agency recognized by the U.S.
Department of Education (see http://www.ed.gov/admins/finaid/accred/index.html
) or accredited by a foreign government.
ACEP means the Acquisition Continuing Education Program, a program
to provide VA's acquisition workforce with classroom knowledge to
further develop their acquisition skills. The program supports VA
personnel in the GS 1102 contracting series, other contracting officers
(regardless of General Schedule series), contracting officers'
technical representatives, and contracting officers' representatives to
ensure that they meet the continuing education requirements mandated by
OFPP Policy Letter No. 05-01, Developing and Managing the Acquisition
Workforce, dated April 15, 2005 (see http://www.whitehouse.gov/omb/procurement/policy_letter_05-01.html
) and other official guidance.
Acquisition Workforce means those VA employees who are classified
as: GS 1102 contract specialists; GS 1105 purchasing agents;
contracting officers warranted above the micro-purchase threshold;
program and project managers and other significant acquisition-related
positions as otherwise identified by the VA Chief Acquisition Officer;
contracting officers' technical representatives; and contracting
officers' representatives. The acquisition workforce also includes a
limited number of employees that perform significant acquisition-
related responsibilities, (e.g., employees in the GS 345, GS 801, GS
1101, GS 1106, GS 1170, GS 2001, GS 2003, and GS 2005 job series and
select program officials).
Appointment means the delegation of authority to any VA employee to
enter into, administer, or terminate contracts and to make related
determinations and findings.
ATCD means the Acquisition Training and Career Development
Division.
Certificate of Appointment as Contracting Officer is a signed
certificate on Standard Form 1402 used for the written appointment of
contracting officers that states the scope, limitation, and term of the
contracting officer's authority.
CLP means continuous learning points, as provided in OFPP Policy
Letter 05-01. One CLP is generally equivalent to one hour of classroom
training.
COCB means the Contracting Officers Certification Board, a group of
VA officials, listed at 801.690-3(b), who evaluate and recommend to the
DSPE individuals for delegation of contracting authority as Level II or
Level III (Senior Limited or Unlimited) contracting officers.
COCP means the Contracting Officers Certification Program, VA's
program established for the selection, appointment, and termination of
appointment of contracting officers.
COQS means the Contracting Officer Qualification Statement, a
document completed by a candidate for a position as contracting officer
that accompanies the request for contracting authority. The certified
statement includes information on experience, education, training, and
pertinent contracting authority information. The COQS is accompanied by
supporting documentation such as training certificates, copies of prior
and current warrants, college transcripts, and other relevant
information.
Federal Acquisition Certification (see OFPP Policy Letter 05-01,
paragraph 8) means a certification program developed by the Federal
Acquisition Institute and OFPP that generally reflects a Government-
wide standard for education, training, and experience leading to the
fulfillment of core competencies in acquisition-related disciplines.
Selection means the appointment of an employee as a contracting
officer. The selection process shall consider the complexity and dollar
value of the assigned work, the candidate's experience, training,
education, business acumen, judgment, character, reputation, and
knowledge of acquisition policies, rules and regulations.
Skills Currency means the level of knowledge and abilities that a
GS 1102 contract specialist or a contracting officer attains as the
result of participating in a minimum of 80 CLPs of continuing education
or training every two years. The training is intended to ensure that
the employee maintains current acquisition knowledge and skills, as
mandated by OFPP Policy Letter No. 05-01 and other official guidance.
Termination means the revocation or rescission of an appointment as
contracting officer.
801.690-2 General.
(a) The VA COCP applies to all programs of VA except for the
[[Page 2357]]
appointment of contracting officers under the Inspector General Act
(Public Law 95-452) and for contracting officers designated in 801.670
through 801.670-5. The COCP also applies to VA officials granted
authority to enter into sales agreements (see separate guidance under
VA's Directives Management System)
(b) A Certificate of Appointment is not required for a contracting
officer designated in 801.670 who exercises special and limited
delegations of authority.
(c) The COCP is based on the following levels and types of
authority:
(1) Level I. Authority for expenditures at or below the simplified
acquisition threshold (see FAR 2.101) for open market contracts,
blanket purchase agreements, basic ordering agreements, and delivery/
task orders against established contracts (except Federal Supply
Schedule (FSS) contracts), within the specified geographical limits of
the contracting officer's warrant. For FSS contracts, Level I authority
includes authority for expenditures up to the maximum order threshold
of the FSS contract, within the specified geographical limits of the
contracting officer's warrant. This level was formally titled ``Basic''
and any current Basic Level warrant need not be reissued solely to
change the title.
(2) Level II. Authority for expenditures at or below $5,000,000 or
as stated on Standard Form 1402 for open market contracts, blanket
purchase agreements, basic ordering agreements, and delivery/task
orders against established contracts, within the specified geographic
limits of the contracting officer's warrant. This level was formally
titled ``Intermediate'' and any current Intermediate Level warrant need
not be reissued solely to change the title.
(3) Level III (Senior Limited). Authority for expenditures at or
below the dollar threshold and within the geographical limits specified
on the contracting officer's warrant, Standard Form 1402. This level
was formally titled ``Senior Limited'' and any current Senior Limited
Level warrant need not be reissued solely to change the title.
(4) Level III (Senior Unlimited). Authority granted to VA's
contracting officers in contracting activities (e.g., the VA National
Acquisition Center, Hines, IL, and Acquisition Operations Service, VA
Central Office, Washington, DC) that are charged with meeting
Department-wide acquisition needs of VA and its customers. The
authority is for expenditures at any dollar level without geographical
restriction. This level was formally titled ``Senior Unlimited'' and
any current Senior Unlimited Level warrant need not be reissued solely
to change the title.
(5) Multi-VISN. Authority at the Level II and Level III (Senior
Limited) Levels, granted by the DSPE, that permits procurement
consolidations among Veterans Health Administration VISNs, Veterans
Benefits Administration Area Offices, and other Government agencies
that exist outside the contracting officer's normally assigned
geographical area of appointed authority. Multi-VISN authority is
generally granted for procurement-specific requirements or to groups or
consortiums established for regional contracting initiatives.
(d) Micro-purchase Level. Micro-purchase Level authority, not to
exceed the micro-purchase threshold (currently $2,500 ($2,000 for
construction), see FAR 2.101) is separately addressed under VA's
purchase card program. Under that program, the HCA may delegate
authority to a VA employee as a purchase cardholder through the
issuance of VA Form 0242.
801.690-3 Responsibilities under the COCP.
(a) DSPE. The DSPE is responsible for the following:
(1) Administering and overseeing the COCP;
(2) Appointing and terminating Level II and Level III (Senior
Limited and Unlimited) contracting officers;
(3) Establishing and developing additional agency-specific training
and determining the levels of contracting authority needed under the
COCP; and
(4) Developing and implementing policy, procedures, and guidance
for VA's acquisition program.
(b) The Chief, Acquisition Program Management Division. The Chief,
Acquisition Program Management Division, serves as the Executive
Secretary to the COCB and is responsible for the following:
(1) Coordinating requests for contracting authority with the COCB;
(2) Proceeding accordingly with appropriate action to carry out the
decisions of the DSPE and the COCB;
(3) Maintaining individual records on the appointment and
termination of appointment of contracting officers. Records on
contracting officers include HCA certifications and qualification
statements, Certificates of Appointment, and other supporting
documentation used to grant authority; and
(4) Ensuring appropriate and timely disposition of records through
Office of Acquisition and Materiel Management's Records Control
Officer.
(c) The COCB. (1) The Director, Acquisition Resources Service, will
chair the COCB.
(2) COCB membership consists of:
(i) The Chief, Acquisition Program Management Division; and
(ii) The Director, ATCD.
(d) HCAs. HCAs are responsible for the following:
(1) Implementing and maintaining an effective and efficient program
for the procurement of personal property and nonpersonal services
required by the activity to which the HCA is assigned.
(2) Establishing adequate controls to ensure compliance with
applicable laws and regulations;
(3) Appointing or terminating the appointment of contracting
officers at the Micro-purchase and Level I Levels within their assigned
activity;
(4) Establishing procedures and maintaining records for the
appointment and termination of appointment of Level I contracting
officers and purchase cardholders at the Micro-purchase Level. Records
maintained on contracting officers shall include the contracting
authority, certification and qualification statements;
(5) Recommending to the DSPE the appointment or termination of
appointment of contracting officers at the Level II and Level III
(Senior Limited or Unlimited) Levels of authority, certifying the
candidate's qualifications, and justifying the organizational need;
(6) Ensuring that all GS 1102 contract specialists and other
contracting officers meet the minimum core training and continuing
education requirements; and
(7) Certifying that the assigned acquisition workforce meets the
minimum training, education, and skills currency requirements
prescribed by OFPP and the DSPE.
(e) VA Acquisition Workforce. All employees identified as members
of VA's acquisition workforce (see 801.690-1) are responsible for
maintaining records that include certificates of acquisition training,
continuing education, college transcripts, work experience, and other
supporting documentation needed to substantiate successful completion
of all warrant requirements. These employees shall enroll in VA's
Center for Acquisition and Materiel Management Education Online (CAMEO)
and in the Acquisition Career Management Information System (ACMIS),
the data systems that serve as the repositories of required information
on VA's acquisition workforce.
801.690-4 Selection.
(a) The HCA may appoint Level I contracting officers or submit
written requests to the DSPE for appointment of Level II or Level III
(Senior Limited or
[[Page 2358]]
Unlimited) contracting officers. A VA official one level above the HCA
may submit a written request to the DSPE for the appointment of a HCA
as a contracting officer.
(b) Appointment can only be requested in those circumstances where
it can be demonstrated that a valid organizational need exists. In
making this assessment and justification, the HCA will consider the
complexity of the work, volume of actions, organizational structure,
and human resource management actions and forecasts, such as rates of
retirement, reassignment, and retention.
(c) The request shall consist of the following:
(1) Justification for requesting contracting authority to be
granted;
(2) Certification that the candidate's experience and training meet
the established minimum qualifications for the requested contracting
authority;
(3) Certification that the candidate has a satisfactory-or-above
performance rating;
(4) Certification that the candidate maintains high standards of
conduct and avoids apparent or actual conflicts of interest, and
(5) Certification that the candidate has appropriate working
knowledge of the FAR, VAAR, and other applicable laws, regulations,
policies and procedures.
(d) The accompanied COQS shall include the following information:
(1) Candidate's name, position title, series, grade, and location;
(2) Candidate's relevant acquisition or business-related experience
that reflects the required number of years of progressive work
assignments leading to broader technical abilities;
(3) Education background, including number of acquisition or
business-related college credits;
(4) List of core training requirements or equivalent courses that
have been successfully completed;
(5) List of continuing education requirements successfully
completed within the last two years;
(6) List of current and prior warrant authorities, limitations, and
information on termination and cause for termination;
(7) List of other acquisition related activities or memberships;
(8) Certification that the statement is accurate and complete to
the best of the candidate's knowledge; and
(9) Attached copies of acquisition or business-related training
certificates, course certificates, and diplomas, transcripts, or
degrees from accredited colleges or universities.
801.690-5 Requirements for contracting authority.
(a) Effective January 1, 2007, no individual, regardless of job
series, may be issued a new contracting officer warrant above the
micro-purchase threshold unless the individual meets the requirements
for Federal Acquisition Certification (Certification) for the
applicable warrant level as specified in OFPP Policy Letter 05-01 and
other official guidance. A new contracting officer warrant is defined
in OFPP Policy Letter 05-01 as a warrant issued for the first time at a
department or agency. Certification will not be required for current
warranted contracting officers at their current warrant level to retain
their current warrant, but will be required before a higher level
warrant can be issued. Certification includes minimum requirements for
education, training, and experience. A candidate for a warrant must
have at least a satisfactory-or-above performance rating during the
most recent performance period.
(b) Until January 1, 2007, the minimum requirements for qualifying
as a contracting officer specified in Tables 801.690-5(b)(1) and
801.690-5(b)(2) shall apply.
Table 801.690-5(b)(1)
------------------------------------------------------------------------
For level I For level II
------------------------------------------------------------------------
(i) Experience.................. 6 months of 2 years of
progressive work progressive work
assignments and assignments
orientation within the last 4
within the last 3 years in an
years in an acquisition-
acquisition- related field
related field. leading to
broader technical
abilities.
(ii) Education.................. High School For Grades GS-12
Diploma or and below, a
General Bachelor's Degree
Educational or 24 business's
Development (GED). related college
credits from an
accredited
college or
university; or
For GS 13 and
above, a
Bachelor's Degree
that is
supplemented by
or includes 24
business-related
college credits
from an
accredited
college or
university.
(iii) Skills Currency (Minimum 80 CLPs........... 80 CLPs.
number of CLPs every 2 years).
(iv) Performance................ Satisfactory-or- Satisfactory-or-
above. above.
(v) Core Training, as follows For Level III For Level III
(or approved equivalent (Senior Limited). (Senior
courses): Unlimited)
Basic Acquisition Course or X................. X.
Simplified Acquisition
Procedures Course.
Acquisition Planning I (2 week .................. X.
course).
Contract Formation I............ .................. X.
Contract Administration I....... .................. X.
Negotiation Techniques.......... .................. X.
Cost Analysis................... .................. X.
Price Analysis.................. .................. X.
Acquisition Planning II......... .................. X.
Contract Formation II........... .................. X.
Contract Administration II...... .................. X.
------------------------------------------------------------------------
[[Page 2359]]
Table 801.690-5(b)(2)
------------------------------------------------------------------------
For level III
For level III (senior unlimited)
(senior limited) (national
programs)
------------------------------------------------------------------------
(i) Experience.................. 3 years of 6 years of
progressive work progressive work
assignments in an assignments in
acquisition- acquisition, 3
related field years of which
leading to were in an
broader technical acquisition-
abilities within related field
the last 5 years. leading to
broader technical
ability within
the last 5 years.
(ii) Education.................. Bachelor's Degree Bachelor's Degree
that is that is
supplemented by supplemented by
or includes 24 or includes 24
business-related business-related
college credits college credits
from an from an
accredited accredited
college or college or
university. university.
(iii) Skills Currency (Minimum 80 CLPS........... 80 CLPs.
number of CLPs every 2 years).
(iv) Performance................ Satisfactory-or- Satisfactory-or-
above. above.
(v) Core Training, as follows
(or approved equivalent
courses):
All courses required of a Level X................. X.
II contracting officer as
specified in Table 801.690-
5(b)(1).
Intermediate Contract Pricing (2 X................. X.
week course).
Government Contract Law (2 week X................. X.
course).
------------------------------------------------------------------------
(c) Effective January 1, 2007, before an individual can be issued a
Level I warrant for acquisitions above the micro-purchase threshold, an
individual will be required to meet the Certification requirements in
OFPP policy guidance. The minimum education and training requirements
for a Level I warrant are expected to include a baccalaureate degree or
24 semester hours of business-related college credits and approximately
240 CLPs (six weeks) of acquisition-related classroom training.
(d) Multi-VISN. The HCA shall obtain written concurrence from other
affected VISNs or Area Offices when requesting Multi-VISN contracting
authority.
(e) Core Training. (1) Contracting officers and non-warranted
contract specialists shall complete the required coursework and on-the-
job training needed to possess the established competencies listed in
OFPP's Federal Acquisition Institute Contract Specialist Training
Blueprints (http://www.fai.gov/prodev/contract.htm).
(2) The Chief, ATCD, oversees the ATP and the 11 core training
courses listed in Tables 801.690-5(b)(1) and 801.690-5(b)(2).
(3) Training course equivalency will be determined and approved by
Chief, ATCD. Candidates should contact the Chief, ATCD, for an
equivalency determination and must furnish any information or evidence
necessary to support the request. Appeals of decisions may be made to
the VA Chief Acquisition Officer and the decisions of the Chief
Acquisition Officer shall be final.
(f) Skills Currency. (1) Contracting officers and non-warranted
contract specialists who have completed the core training requirements
shall obtain a minimum of 80 CLPs of continuing education or training
every two fiscal years to stay abreast of current acquisition knowledge
and skills as mandated by OFPP. The HCA (for Level I contracting
officers) and the Chief, ATCD (for Level II and Level III contracting
officers), shall make written determinations each October 1st on
whether or not the required CLPs, as specified in OFPP guidance, were
completed during the two prior fiscal years. The HCA shall assign CLP
values to training taken by Level I contracting officers for training
that does not have pre-assigned CLP or continuing education unit (CEU)
values assigned to the training by the provider. The Chief, ATCD, shall
assign CLP values to training taken by Level II and Level III
contracting officers for training that does not have pre-assigned CLP
or continuing education unit (CEU) values assigned to the training by
the provider. Values shall be assigned based on guidance provided by
OFPP and the combined efforts of the Federal Acquisition Institute and
the Defense Acquisition University. Disputes regarding the CLP or CEU
values assigned to training shall be resolved by the Associate Deputy
Assistant Secretary for Acquisitions.
(2) The Chief, ATCD, is responsible for the management of the ACEP,
the program that assists contracting officers and contract specialists
to meet the training requirements.
(3) An expiring warrant will not be re-issued if the contracting
officer has not met the continuing education or training requirement.
(g) Education. (1) The 24 business-related college credits shall be
in any combination of the following fields of study at an accredited
college or university: Accounting, business, finance, law, contracts,
purchasing, economics, industrial management, marketing, quantitative
methods, or organization and management.
(2) The Chief, ATCD, will make the final determination whether a
course is accepted as business-related for the purpose of granting
contracting authority.
(3) American Council on Education (ACE) credits are not considered
as college credits until they are converted and included on a
transcript from an accredited college or university.
(h) Grandfather Provision for the Education Requirement. (1) VA
contracting officers, regardless of grade level, who currently hold
Level I, Level II, or Level III (Senior Limited or Unlimited) warrants
are considered as having met the Experience, Education, and Core
Training requirements in Tables 801.690-5(b)(1) and 801.690-5(b)(2) for
that warrant level. This includes transfers or laterals to other VA
contracting activities with similar geographical restrictions.
Contracting officers who are promoted up to a GS-12 can maintain their
current warrant level authority.
(2) This Grandfather provision does not cover new VA employees,
current VA employees who are not warranted, or former VA employees who
held contracting authority at their previous Federal Government
agencies or VA positions. VA contracting officers who are promoted to
GS 13-and-above will no longer be covered by this Grandfather provision
and, therefore, must meet the current Experience, Education, and Core
Training requirements for the specific warrant authority that they
currently hold or to which they wish to be appointed.
[[Page 2360]]
Contracting officers requesting a higher level warrant (e.g., from
Level I to Level II or from Level III (Senior Limited) to Level III
(Senior Unlimited)) must also meet the current Experience, Education,
and Core Training requirement for the specific warrant authority
requested.
(3) This Grandfather provision for retaining a contracting
officer's current warrant authority is voided if the contracting
officer does not fully meet the minimum Skills Currency requirement
prior to warrant expiration or when the warrant authority is suspended
or revoked. The contracting officer will then need to meet all of the
current warrant prerequisites before a new warrant can be issued or
before the suspended or revoked warrant can be reinstate