[Federal Register: January 15, 2008 (Volume 73, Number 10)]
[Rules and Regulations]
[Page 2711-2792]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja08-11]
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Part III
Department of Veterans Affairs
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48 CFR Chapter 8
VA Acquisition Regulation: Plain Language Rewrite; Final 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: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
Acquisition Regulation (VAAR). This document revises the VAAR to
conform to plain language principles, updates delegations of authority,
and removes non-regulatory material. The document also makes changes in
format, arrangement, and numbering to make the VAAR parallel to the
Federal Acquisition Regulation (FAR) as required by the FAR. In
addition, provisions that simply restate FAR provisions that are
already applicable have been removed, and procedures for providing
notice and a hearing to resolve issues regarding possible violations of
the Gratuities clause, for establishing qualified products lists, for
suspending or debarring a contractor, for expediting payments to small
businesses, and for reducing or suspending payments upon a finding of
contract fraud have been added. The VAAR clause on Organizational
Conflicts of Interest has been expanded to cover a broader range of
services that may be subject to organizational conflicts of interest.
Additional VAAR clauses have been added to the list of clauses for use
in commercial item solicitations and contracts. Items that have been
deleted include requirements for setting aside construction and
architect-engineer solicitations for small businesses that are in
conflict with current statute, a requirement to conduct an audit of
section 8(a) price proposals that is contrary to current FAR
requirements, and a VAAR provision that requested data from offerors on
veteran-owned small businesses that has been replaced by a FAR
provision. Guidance to contracting officers on the types of data that
should be requested from a contractor when evaluating the contractor's
financial condition has been added. Other additions include a
requirement to use the clause on Assignment of Claims in purchase
orders and guidance to contracting officers on the criteria for
revising the payment due dates for invoices. This final rule also makes
non-substantive clarifying changes and corrections to the proposed
rule. The Veterans Benefits, Health Care, and Information Technology
Act of 2006 (Pub. L. 109-461) was issued subsequent to the proposed
rule. It will be addressed in a future rulemaking.
DATES: Effective Date: February 14, 2008.
FOR FURTHER INFORMATION CONTACT: Arita Tillman, Acquisition Policy
Division (049A5A), Office of Acquisition and Materiel Management,
Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC
20420, telephone (202) 461-6859, e-mail arita.tillman@va.gov.
SUPPLEMENTARY INFORMATION: On January 13, 2006, we published in the
Federal Register (71 FR 2341-2424) a proposed rule to amend the
Department of Veterans Affairs Acquisition Regulation (VAAR) to update
the VAAR and to revise the VAAR to conform to plain language
principles. Comments were solicited concerning the proposal for 60
days, ending March 14, 2006. Eight respondents submitted comments on
the proposed rule; most respondents submitted multiple comments. A
discussion of the comments is provided below.
One commenter stated that the internal procedure, guidance, format,
and work-flow items that do not impact VA's vendor base should be
removed from the VAAR and relocated to internal documents.
We appreciate this comment and concur that material in the VAAR
that does not impact the public may be removed from 48 Code of Federal
Regulations (CFR) Chapter 8, and this final rule does remove some such
material formerly contained in the VAAR. VA plans to remove additional
material at a future date, but until the internal documents containing
that guidance are published and in place within VA, that material
cannot be removed from the VAAR. Future changes to the VAAR will be
processed as the internal documents are put into place.
One commenter stated that the VAAR language should be updated to
keep pace with the direction of Federal procurement and current
thinking regarding performance-based acquisition, preference for
acquisition of commercial items or services, electronic submissions,
interagency contracting, etc.
We believe updating is an ongoing process; we will continue to seek
to ensure the VAAR is current and up to date.
One commenter stated that based on recent Federal policy changes,
such as the use of the Electronic Subcontracting Reporting System
(eSRS), Wage Determinations OnLine (WDOL), and the new security
guidance as found in Homeland Security Presidential Directive (HSPD)-12
or Federal Information Processing Standards (FIPS) 201, any procedures
in the VAAR that impact VA's vendor base should be updated.
We note that the VAAR supplements the FAR when we consider
supplementation necessary. Otherwise, we rely on the FAR for such
guidance. We are not aware of any procedures in the VAAR regarding
these issues that require updating. We therefore make no change based
on this comment.
One commenter stated that many clause prescriptions contain either
the word ``must'' or ``shall.'' To remain consistent with the FAR and
other regulatory documents found across the Federal government, and
``to simplify the use of any non-subjective language,'' the commenter
recommended picking one of the two and using it throughout the
document.
We appreciate this comment and based on it, we have changed the
term used in all provision and clause prescriptions from ``must
insert'' to ``shall insert'' to be consistent with the FAR. The FAR
Drafting Guide otherwise provides that ``must'' and ``shall'' have the
same meaning.
Several comments were received suggesting additions and changes to
sections in Part 801 that are internal to VA and that do not impact the
public.
We believe the referenced sections are internal guidance to
contracting officers and we do not intend to add more internal guidance
to the VAAR than is necessary (see Comment 1 above). However, the
comments have been considered and this final rule makes changes from
the proposed rule where appropriate in that internal guidance.
Two comments were received regarding the proposed provisions in
809.504(d) to expand the application of the clause at 852.209-70 to
cover additional types of services. One commenter stated that the
requirement to include the clause at 852.209-70 in all solicitations
for services that are addressed in FAR 9.502 is unnecessary and
essentially removes any flexibility on the part of contracting officers
to make determinations regarding the applicability of organizational
conflicts of interest based on the circumstances of a specific
procurement. The commenter indicated that FAR 9.505 contains general
rules that should be followed in this matter and that VA should empower
contracting officers to make the determinations instead of relying on a
blanket approach to incorporating this clause. The other commenter does
not
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believe it is necessary or appropriate to require all offerors for
services listed in FAR 9.502 to submit a statement disclosing all facts
relevant to an existing or potential conflict of interest. VA is
applying the clause to every type of service listed in FAR 9.502 rather
than determining what particular solicitations and contracts require
the clause. By focusing only on those types of services listed in FAR
9.502, VA may be missing other non-services solicitations that could
raise organizational conflict of interest issues. The commenter
recommended that VA develop criterion as to when the contracting
officer should evaluate the organizational conflict of interest issues
in a solicitation and the resulting contract, particularly when some
exclusion from future work could result from the instant award.
As an initial matter, we note that currently, 48 CFR Chapter 8
requires contracting officers to include the clause at 852.209-70 in
all solicitations and contracts for consulting services. In the
proposed rule, we proposed to add solicitations and contracts for
management support services, other professional services, technical
evaluation services, and systems engineering services, as provided in
FAR 9.502, to the types of solicitations and contracts where the clause
would be required. The FAR identifies these services as those more
likely to involve organizational conflicts of interest. The clause does
not require any submission of data or any action on the part of any
offeror if the offeror, to the best of the offeror's knowledge and
belief, has no organizational conflicts of interest. This is not a
determination that the contracting officer can make in advance, as the
contracting officer does not know the particular circumstances of each
and every potential offeror in advance of issuing the solicitation.
Determinations of whether potential organizational conflicts of
interest exist are not dependent upon the type of service being
procured but rather are dependent upon the specific circumstances of
each offeror, circumstances which only the offeror might know. Since
FAR 9.502 indicates that organizational conflicts of interest are more
likely to occur in contracts for these types of services, we believe it
is prudent to extend the use of the clause to at least include
solicitations for these types of services. The clause only requires an
offeror to provide supplemental information to the contracting officer
if the offeror knows or believes that award of the contract to the
offeror would involve an organizational conflict of interest. If the
offeror does not know or does not believe that award of a contract
would involve an organizational conflict of interest, no action is
required on the part of the offeror. The contracting officer is not in
a position to make a blanket determination for and on behalf of every
potential offeror under a specific solicitation. It is the offeror
rather than the contracting officer that is in a position to know
whether it has a potential organizational conflict of interest. This
clause is not a substitute for FAR Subpart 9.5 and does not relieve the
contracting officer from compliance with the requirements of 9.5.
Rather, it supplements 9.5 by placing some responsibility on offerors
to notify contracting officers of the existence of potential
organizational conflicts of interest of which the contracting officer
would not otherwise be aware. We believe the use of this clause is
appropriate for the types of services specified in FAR 9.502 and as set
forth in the proposed rule. Therefore, no change is being made in the
final rule regarding the use of this clause.
One commenter stated that VA policies in Part 811 should be updated
in terms of best value contracting, performance-based acquisition, and
preference for commercial items. The part should address requirements
for commodities that need specifications and those that do not and
should include detailed policy on commercial item preference and use of
statements of objectives or performance work statements in those
situations where a specification is not required.
VA relies on the FAR for such guidance. We do not believe that
additional guidance and coverage is required in Part 811 of the VAAR.
Adding additional material to the VAAR that might impact the public is
beyond the scope of this rulemaking.
One commenter stated that the focus of the VAAR should be revised
from ``purchasing compliance'' to ``purchasing performance.'' For
example, adding clauses to Part 812 does not streamline or simplify the
purchasing process, and the language which allows contracting officers
to tailor solicitations defeats the preference for utilizing commercial
practices.
We do not believe the clauses being added for use in commercial
item acquisitions, when appropriate, are inconsistent with commercial
practices or that they necessarily relate to contract compliance versus
performance. The tailoring provisions simply establish agency
procedures to implement the tailoring provisions authorized by the FAR
at 12.302(c).
One commenter expressed concern that the lead-in language in
section 812.301(a), that VA contracting officers ``must use only those
provisions and clauses in this part when acquiring commercial items,''
may be misread to mean that the clauses in Part 812 are mandatory. The
commenter recommended revising the language to provide that only those
clauses listed in FAR 12.3 are mandatory and to affirmatively state
that clauses in 812.301 are optional.
We partially concur with the commenter's recommendation. We have
made changes in the final rule from the proposed rule's language in
812.301(a) to clarify that the clauses referred to in Part 812 are to
be used as appropriate, in accordance with the provision or clause
prescriptions. We do not think that it is appropriate to refer in
812.301(a) to FAR 12.3, and believe that such a reference would be
redundant.
One commenter expressed concern that by adding clause 852.209-70 to
the list of clauses that may be used, as appropriate, in commercial
item solicitations, contracting officers may routinely include that
clause in all commercial item solicitations.
We partially concur and have made changes in the final rule from
the proposed rule's language in 812.301(b) and (c) to clarify that the
provisions and clauses listed therein are to be used in accordance with
the prescriptions for those provisions and clauses. The prescription
for use of clause 852.209-70 provides for use of the clause only in
certain types of service contracts.
One commenter requests an update to section 814.201 regarding
contract numbering to conform to how VA's Electronic Contract
Management System (eCMS) is going to be used to automatically assign
numbers to applicable contractual vehicles.
VA appreciates this comment and we intend to update this section
upon implementation of eCMS and this final rule makes changes to the
proposed rule by adding a statement regarding eCMS to this section.
One commenter stated that proposed VAAR Subparts 817.1 and 817.2
should be clarified regarding their application to standard multi-year
pricing provisions and option clauses included in Federal Supply
Schedule contracts; clarification should be added regarding multi-year
contracts versus multiple options for renewal; and guidance should be
added relative to contracts subject to the Veterans Health Care Act, 38
United States Code (U.S.C.) 8126.
We do not believe that this comment relates directly to the
proposed rule change to the VAAR, as published in the
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Federal Register, and, to the extent that it recommends adding material
to the VAAR, it is beyond the scope of this rulemaking. Such additions
would require a new proposed rule and opportunity for public comment.
Rather, we believe that this comment is directed towards VA's
administration of Federal Supply Schedule contracts and their
intersection with the Veterans Health Care Act, 38 U.S.C. 8126. The
proposed rule change to the VAAR does not affect and is not intended to
affect the Veterans Health Care Act. Section 817.105-1 relates to VA's
authority to enter into multi-year contracts for up to 5 years, as
provided in 38 U.S.C. 114, unless otherwise authorized by statute, and
subpart 817.2 relates to the use of options in solicitations under
Office of Management and Budget Circular No. A-76. We do not believe it
is necessary to further clarify the sections in subparts 817.1 and
817.2. These suggested changes will be considered for possible
generation of a new proposed rule change to the VAAR at a future date.
One commenter stated that a clause used in VA Federal Supply
Schedule solicitations and contracts regarding an option to extend the
term of the contract and relating to the Veterans Health Care Act, 38
U.S.C. 8126, should be added to the VAAR.
We do not believe that the comment relates directly to the proposed
changes to the VAAR contained in the proposed rule, as published in the
Federal Register. Rather, it is beyond the scope of this rulemaking.
The suggested change to the VAAR would require a new proposed rule and
opportunity for public comment. The suggested change will be considered
for possible generation of a new proposed rule change to the VAAR at a
future date.
One commenter requested that the VAAR clarify the definition of
``other publications'' in proposed section 832.404 to include
electronic media, and stated that subscriptions for publications or
products that are available via electronic media are now commonplace in
the commercial market.
We appreciate the request for clarification. However, rather than
defining ``other publications,'' which could result in an extensive
list, the proposed rule revised this section to restate statute, which
we believe does cover electronic media. We have made no change based on
this comment.
One commenter stated that Section 847 of the National Defense
Authorization Act for Fiscal Year 2006 terminates all agency boards of
contract appeals, except for the General Services Administration, the
Tennessee Valley Authority, and the United States Postal Service,
within a year of the date of enactment of the Act. The commenter
requested that VA confirm the process for appeals to the VA Board of
Contract Appeals prior to that date and the process that will be
followed after that date, if possible.
We appreciate this comment and as mandated by Congress, on January
6, 2007, the VA Board of Contract Appeals was terminated and its
contract adjudication functions were transferred to the Civilian Board
of Contract Appeals. The final rule makes changes to the proposed rule
by revising accordingly.
One commenter suggested changes to or clarification of General
Services Administration clause 552.238-75.
Changes to the clause in 48 CFR 552.238-75 are outside the scope of
this rulemaking. This clause is not a VAAR clause. Suggested changes to
this clause should be directed to the General Services Administration.
To the extent that the commenter is suggesting the addition of
clarifying language to the VAAR supplementing General Services
Administration clauses, the suggestion does not directly relate to the
proposed changes to the VAAR contained in the proposed rule, as
published in the Federal Register, and is beyond the scope of this
rulemaking. Such a change to the VAAR would require a new proposed rule
and opportunity for public comment. The suggested change will be
considered for possible generation of a new proposed rule change to the
VAAR at a future date.
One commenter suggested that changes be made to the modified
version of General Services Administration clause 552.215-72 used in VA
Federal Supply Schedule solicitations and contracts.
We believe this is outside the scope of this rulemaking. The
suggestion does not relate to the proposed changes to the VAAR as
contained in the proposed rule published in the Federal Register and is
beyond the scope of this rulemaking. The suggested change will be
considered for possible generation of a new proposed rule change to the
VAAR at a future date.
One commenter suggested that various provisions used by VA in its
Federal Supply Schedule solicitations and contracts that are not
currently included in the VAAR be added to the VAAR.
We do not believe that the suggestion directly relates to the
proposed changes to the VAAR as contained in the proposed rule
published in the Federal Register. Rather, it is beyond the scope of
this rulemaking. The suggestion would involve changes to the VAAR which
would require a new proposed rule and opportunity for public comment.
The suggestion will be considered for possible generation of a new
proposed rule change to the VAAR at a future date. As per Federal
Acquisition Regulation (FAR) 8.402, the General Services Administration
has delegated authority to the VA to procure health care related
products and services under the VA Federal Supply Schedules program.
This original General Services Administration delegation occurred via
letter to VA in 1960 and was updated most recently in 2004.
One commenter requested that VA ensure that sections 801.670-1 and
847.303-1 clearly be written to conform to FAC 2005-7 and the
Interstate Commerce Act, and stated that commercial bills of lading are
now required for domestic shipment.
VA believes that sections 801.670-1 and 847.303-1 primarily provide
internal VA guidance and we believe they do comply with FAC 2005-7 and
the Interstate Commerce Act. The VA Commercial Bill of Lading
referenced in section 847.303-1 is a commercial bill of lading.
Three commenters suggested changes to clause 852.211-70, Service
data manuals, varying from specific suggested changes that would
replace the requirements for hard copies of the manuals with other
requirements involving electronic versions, to a suggestion that there
be a complete rewrite of the clause to reflect electronic documentation
standards used throughout the medical imaging community.
We agree that this clause may require revision and updating to
conform to current commercial practices. However, we consider hard
copies of such manuals to be necessary. Further, the clause not only
impacts VA, it also impacts all of the other Federal agencies for which
VA is the contracting office for medical equipment as well as members
of the public. We believe that the suggested changes to this clause
would require a new proposed rule and opportunity for public comment,
including comment from other Federal agencies that might be impacted by
such changes. These suggested changes will be considered for possible
generation of a new proposed rule change to the VAAR at a future date.
One commenter suggested that clause 852.211-72, Technical industry
standards, be revised to add ``voluntary consensus'' prior to the word
``standards'' in the second line of the first paragraph of the clause.
[[Page 2715]]
The clause is not intended to limit required standards to only
those that are voluntary consensus standards. By making this suggested
change, VA would be limited to requiring compliance only with such
voluntary standards. We are reluctant to place such limits on the use
of this clause. We believe that the term ``standards'' would include
voluntary consensus standards; therefore, we are making no changes to
the clause.
One commenter urged VA to carefully instruct contracting officers
to exercise caution when using the clause at 852.252-70 and
incorporating FAR and VAAR provisions and clauses by reference in
solicitations for commercial items. The commenter indicated that there
is a specific reference in FAR 12.301(b)(2) and FAR clause 52.212-3
addressing the representations and certifications for commercial item
contracts and a specific provision at FAR 12.301(e) addressing the use
of discretionary clauses.
We believe that clause 852.252-70 allows contracting officers to
include by reference in a solicitation any provisions or clauses that
require completion by the offeror or prospective contractor. This
clause was promulgated in the VAAR based on FAR 52.102(c)(1) and
(c)(2). In a commercial item solicitation, only those provisions and
clauses that pertain to or are appropriate for use in a commercial item
solicitation may be included by reference. We are not sure of the
intent of the commenter, but we do not believe contracting officers
need special instructions to exercise caution in determining the
appropriate provisions and clauses for commercial items. Therefore, we
have made no such change in response to the comment.
One commenter stated VA should consider using this as an
opportunity to reduce the number of VA-unique forms, such as the VA
Form 90-2138 series.
We are making no change at this time based on this comment. This
comment is beyond the scope of the proposed rule but will be considered
for possible future changes. However, the use of agency-specific forms
such as the VA 90-2138 series is authorized by the FAR (see FAR
53.213(f)).
One commenter interpreted the proposed rule as removing specific
guidance pertaining to consignment agreements. The commenter urged that
it be retained in the VAAR to ensure consistency throughout VA.
The current guidance in the VAAR on consignment agreements is at
870.108-3 in the non-codified portions of the printed VAAR (i.e.,
material that does not appear in 48 CFR Chapter 8), and is not being
removed by this final rule nor was it intended to be affected by the
proposed revision of the codified VAAR. This non-codified material,
along with the codified portions of the VAAR, can be found on the
Office of Acquisition and Materiel Management Web page at http://www1.va.gov/oamm/oa/ars/policyreg/vaar/index.cfm.
The non-codified
material in the VAAR on this Web site is identified by a series of
three colons before and after the non-codified material, e.g.,
:::xxxxxxxxxxx:::. At some future date, this non-codified guidance on
consignment agreements may be relocated to VA's Directives Management
System or it may simply remain in the non-codified portions of the
VAAR, but we do intend to retain the guidance on consignment
agreements. To the extent that the commenter considers the guidance to
have an impact on the public and that the provisions should be codified
in 48 CFR Chapter 8, the comment does not relate to the proposed
changes to the VAAR as contained in the proposed rule published in the
Federal Register and is beyond the scope of this rulemaking. Adding
such provisions to the codified VAAR would require a new proposed rule
and opportunity for public comment. The suggestion to do so will be
considered for possible generation of a new proposed rule change to the
VAAR at a future date.
Two commenters suggested that the guidance in VA information
letters or clauses in VA solicitations for award of Federal Supply
Schedule contracts be added to and included in the VAAR.
We do not believe that these comments directly relate to the
proposed changes to the VAAR in the proposed rule. Rather, they are
beyond the scope of this rulemaking and we believe that these suggested
changes would require a new proposed rule and opportunity for public
comment. These suggested changes will be considered for possible
generation of a new proposed rule change to the VAAR at a future date.
Other Changes to the Proposed Rule
This final rule removes the citation of authority to negotiate
nursing home contracts under 38 U.S.C. 1720 without regard to any other
provision of law at 806.302-5(b)(6). That citation was incorrect, as
there is no authority under 38 U.S.C. 1720 to negotiate nursing home
contracts without regard to any other provision of law. Nursing home
contracts must be negotiated in accordance with the FAR and VAAR.
``Glass, Wire'' has been removed from the list of nonavailable
articles under the Buy American Act as it duplicates an article, ``wire
glass,'' already listed in FAR 25.104.
Material formerly included in the proposed rule as Alternate I to
the clause at 852.246-70, Guarantee, has been relocated as paragraph
(b) to section 846.302-70, Guarantee clause, with no substantive
change. The material has been determined to not be an alternate to the
clause itself but rather to be instructions to the contracting officer
on how to modify the clause under certain circumstances.
As published in the proposed rule in 852.236-83, paragraph (d)(3)
incorrectly and inadvertently duplicated paragraph (d)(4). The correct
paragraph (d)(3) is currently published in 48 CFR Chapter 8 and we did
not intend to make any changes to paragraph (d)(3) in the proposed
rule. This final rule reflects the correct version of paragraph (d)(3),
as currently published in 48 CFR Chapter 8.
No substantive change has been made to the verbiage in the clause
at 852.237-7, Indemnification and medical liability insurance, but the
contracting officer's note in paragraph (a) has been bracketed and
italicized to instruct contracting officers to fill in the dollar
values of the insurance required. Due to this nonsubstantive
modification, the clause date has been changed.
Section 871.207(a)(1) provides that payment for tuition or fees
under contracts for training or rehabilitation services shall be made
in arrears. Section 871.210(h), which further discusses payment for
correspondence courses, contained a typographical error--the word
``areas'' was used instead of the word ``arrears'' when discussing
payment. This error has been corrected in section 871.210(h) to read
``arrears.''
Other nonsubstantive changes have been made, principally to reflect
current VA organizational structure and to correct typographical,
grammatical, and similar errors. Changes have been made to internal VA
guidance to contracting officers. These include, but are not limited
to, changes to correspond to recently issued Office of Federal
Procurement Policy guidance, such as the material covering the
contracting officer certification program in 801.690. Internal VA
procedures for establishing individual facility and staff office
socioeconomic goals that were inadvertently left out of the proposed
rule have been added back in at 819.202-5.
Chart of Clauses Renumbered and/or Renamed
A number of clauses have been renumbered and/or renamed by this
[[Page 2716]]
rulemaking and a chart listing those changes was published in the
preamble to the proposed rule. We are republishing such a chart
following this paragraph to assist in tracking those changes. If no
name appears in the second column below, 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.
------------------------------------------------------------------------
Prior VAAR clause and title Renumbered/renamed as
------------------------------------------------------------------------
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.
------------------------------------------------------------------------
As noted in the preamble to the proposed rule, no substantive
changes have been made to the clauses in the chart above with the
exceptions of 852.233-70, Protest content/alternative dispute
resolution, where paragraph (c) has been 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 have been combined into one clause for simplicity.
Paperwork Reduction Act of 1995
This final rule contains provisions in sections 832.006-4 and
832.202-4 that constitute collections of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). In the preamble
of the proposed rule, we described the collections in the proposed rule
that would need approval by the Office of Management and Budget (OMB)
and provided a comment period. We did not receive any comments
concerning those collections. OMB has approved those proposed
collections, and has assigned control number 2900-0688 to them. In
section 801.106, OMB approval under the Paperwork Reduction Act, we are
making a change in this final rule from the proposed rule by including
this OMB control number. OMB assigns a control number for each
collection 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.
Conclusion
Based on the rationale set forth in the proposed rule and in this
document, VA is adopting the provisions of the proposed rule as a final
rule with the changes discussed above.
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a ``significant regulatory action,'' requiring review
by the Office of Management and Budget (OMB) unless OMB waives such
review, as any regulatory action that is likely to result in a rule
that may: (1) Have an annual effect on the economy of $100 million or
more or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create a serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
The economic, interagency, budgetary, legal, and policy
implications of this final rule have been examined and it has been
determined to be a significant regulatory action under the Executive
Order because it is likely to result in a rule that may raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
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 rule will have no such effect on
State, local, or tribal governments, or the private sector.
Regulatory Flexibility Act
The Secretary hereby certifies that this rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. The 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
[[Page 2717]]
changes that do impact the public are of minimal impact.
The addition of procedures for contractor hearings relative to: (1)
Violating 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 are rarely used by VA. They do not add
any new authorities that VA could have exercised under the FAR before
issuance of this 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 rule provision would
have no impact on small businesses that accept the purchase card.
The rule removes 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 and 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 prohibit VA from
setting aside a solicitation under the circumstances specified in VAAR
819.502-2, the removal of that superseded provision will not have any
effect on small entities.
The changes in sections 803.204, 803.705, and 832.006-4 will 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
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
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 rule 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
Improper Business Practices and Personal Conflicts of Interest.
48 CFR Part 819
Small Business and Small Disadvantages Business Concerns.
48 CFR Part 822
Application of Labor Laws to Government Acquisitions.
48 CFR Part 825
Foreign Acquisitions.
48 CFR Part 828
Bonds and Insurance.
48 CFR Part 829
Taxes.
48 CFR Parts 831
Contract Cost Principles and Practices.
48 CFR Part 833
Protests, Disputes, Appeal.
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: September 28, 2007.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
Editorial Note: This document was received at the Office of the
Federal Register on December 26, 2007.
0
For the reasons set out in the preamble, VA revises 48 CFR Chapter 8 to
read as follows:
CHAPTER 8--DEPARTMENT OF VETERANS AFFAIRS
Subchapter A--General
Part
801 Department of Veterans Affairs Acquisition Regulation 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.
[[Page 2718]]
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.
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 REGULATION
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.
801.602-2 Responsibilities.
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 Construction and
Facilities Management), the National Acquisition Center, and the
Denver Acquisition and Logistics Center.
801.602-79 Processing solicitations and contract documents for legal
or technical review--Veterans Benefits Administration.
801.602-80 Legal and technical review-Office of Construction and
Facilities Management and National Cemetery Administration.
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 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 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
[[Page 2719]]
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 or recordkeeping provisions that are included in the VAAR and
has given VA the following approval numbers:
----------------------------------------------------------------------------------------------------------------
48 CFR part or section where identified and Current OMB 48 CFR part or section where Current OMB
described control number identified and described control number
----------------------------------------------------------------------------------------------------------------
809.106-1.................................... 2900-0418 852.214-70...................... 2900-0593
809.504(d)................................... 2900-0418 852.228-71...................... 2900-0590
813.......................................... 2900-0393 852.236-72...................... 2900-0422
832.006-4.................................... 2900-0688 852.236-79...................... 2900-0208
832.202-4.................................... 2900-0688 852.236-80 (Alt. I)............. 2900-0422
836.606-71................................... 2900-0208 852.236-82 through 852.236-84... 2900-0422
852.207-70................................... 2900-0590 852.236-88...................... 2900-0422
852.209-70................................... 2900-0418 852.236-89...................... 2900-0622
852.211-70................................... 2900-0587 852.236-91...................... 2900-0623
852.211-71................................... 2900-0588 852.237-7....................... 2900-0590
852.211-72................................... 2900-0586 852.270-3....................... 2900-0589
852.211-73................................... 2900-0585
----------------------------------------------------------------------------------------------------------------
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 Acquisition and Materiel 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. The Deputy Assistant Secretary
(DAS) for Acquisition and Materiel Management is designated as the
Department's Senior Procurement Executive (SPE). The Associate DAS for
Acquisitions is designated as the Deputy Senior Procurement Executive
(DSPE). The DSPE is responsible for amending 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, in
accordance with Administration or staff office procedures, must submit
a request through the HCA 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.
(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.
Subpart 801.6--Career Development, Contracting Authority, and
Responsibilities
801.601 General.
(a) The HCA or the DSPE, within their authority, may appoint a
contracting officer under FAR 1.603 and VA's Contracting Officer
Certification Program (COCP).
(b) In addition, the HCA may delegate micro-purchase authority to
VA employees under 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 as a contracting officer or purchase
card holder or as provided in 801.670. 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
[[Page 2720]]
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.
801.602-2 Responsibilities.
In the administration of a contract, many problems can and do arise
that make the advice and assistance of the Office of General Counsel
(OGC) either desirable or necessary. The final decision as to the
action to be taken, however, must be made by the contracting officer in
each instance. To reduce to the absolute minimum the possibility of
litigation resulting from his/her decision, the contracting officer
shall submit the problem through channels in sufficient detail to the
General Counsel for advice or assistance.
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 HCA.
(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 Director, Office of Construction and 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
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 VA 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,
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-
[[Page 2721]]
75(a)(3), the contracting officer (except contracting officers in the
Office of Construction and 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) By separate notice, 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 card holders 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 solicitations or quotations (except $500,000 or more.
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 solicitations or quotations where a $750,000 or more.
consolidated acquisition activity is performing
acquisitions for three or more physically separated VA
medical centers (excluding outpatient clinics).
(c) Fixed price, sealed bid construction solicitations, $1 million or more.
other than 8(a) construction solicitations.
(d) 8(a) construction solicitations and task orders........ $500,000 or more.
(e) Request for Proposal (negotiated) construction $500,000 or more.
solicitations and task orders.
(f) Proposed task/delivery orders and blanket purchase $500,000 or more.
agreements (includes orders under Federal Supply Schedule
contracts).
(g) Proposed cost-reimbursement, incentive, time-and- $100,000 or more.
materials, and labor-hour contracts (see 816.102(b)).
(h) Utility service agreements............................. $50,000 or more.
(i) Solicitations for advisory and assistance services (see $100,000 or more.
837.2).
(j) Proposed letter contracts and ensuing formal contracts. $25,000.
----------------------------------------------------------------------------------------------------------------
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:
(1) Documents relating to bonds (see FAR 28.102-1 and 28.203
through 28.203-5) as follows:
(i) An irrevocable letter of credit.
(ii) A tripartite escrow agreement.
(iii) An individual surety bond. (Note that the FAR at 28.203(f)
also requires legal review of the documents pledging the assets of an
individual surety.)
(2) Proposed novation and change-of-name agreements (see FAR
Subpart 42.12).
(3) Solicitations or proposed contracts containing an economic
price adjustment clause (other than a pre-approved VA 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.
(4) Proposed multi-year contracts 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)).
(5) Proposed solicitations where the contract term total of the
basic and option periods may exceed 5 years, regardless of the dollar
value of the proposed acquisition (see 817.204).
(6) Proposed membership agreements in a group purchasing
organization.
(7) A proposed termination settlement or determination of amounts
due the contractor under a terminated contract that involves the
expenditure of $100,000 or more of Government funds. Acquisition
Resources Service staff shall obtain legal review (see 849.111-70).
(8) Consignment agreements 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).
(c) Contracting officers, including purchase card holders, must
obtain technical and legal review of all proposed contracts with hotels
or similar facilities for conferences or similar functions (e.g.,
training, meetings) 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) 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
[[Page 2722]]
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 Acquisition Operations 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 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 VA funds of $250,000 or more. A
VA field facility contracting officer or a contracting officer at the
VA National Acquisition Center or the Denver Acquisition and Logistics
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). Contract
modifications issued only to exercise contract options are exempt from
this review requirement.
(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 Veterans Integrated Service Network
(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 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:
[[Page 2723]]
(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 Office of Construction and Facilities
Management), the National Acquisition Center, and the Denver
Acquisition and Logistics 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, One level above Appropriate
quotations, contract-related the contracting Acquisition
documents, and agreements officer. Resources Service
specified in Table 801.602.71 central or
and in 801.602-72. regional office.
(2) Scarce medical specialist One level above Director, Enhanced
and health-care resource the contracting Sharing Program
solicitations, quotations, and officer. (10FL), VACO.
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, Acquisition
specified in 801.602-74. official, Operations
contracting Service.
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 or e-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) 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) 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 Legal and technical review-Office of Construction and
Facilities Management and National Cemetery Administration.
An Office of Construction and Facilities Management or National
Cemetery Administration (Construction Support Division) contracting
officer shall submit all A/E contracts, and all construction contracts,
time extensions, and modifications, directly to Office of General
Counsel (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 Construction
and Facilities Management and National Cemetery Administration
(Construction Support Division) contracting officers shall forward the
documents to OGC (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.
(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
[[Page 2724]]
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 or contract One copy of the solicitation or
for scarce medical specialist services proposed contract and
or 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 Construction and Facilities Management and National Cemetery
Administration contracting officers shall forward the documents to OGC
(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 (i.e., all documents
used to support the contracting officer's determination of price
reasonableness).
801.602-85 Results of review.
(a) When the review is complete, the reviewing office will advise
the appropriate Central Office activity or contracting officer that the
proposal was approved as submitted or provide them with recommended
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 technical or legal review
staff, if the contracting officer concurs, the contracting officer must
take immediate action to amend the document. If the
[[Page 2725]]
contracting officer does not concur, the contracting officer must
discuss the recommended changes with the technical reviewer or the
attorney involved and document in the contract file the reasons why the
contracting officer is not following the reviewer's recommendations.
(c) Acquisition Resources Service and OGC will complete reviews 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 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 in writing, 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 head of the organization 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, i.e.,
COTRs, to represent him or her to receive and inspect supplies,
equipment and services at a VA facility. The COTRs may perform duties,
as specified by the contracting officer, 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
801.670-1 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 those 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 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, or the 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 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.
[[Page 2726]]
801.670-4 National Cemetery Administration.
The Director 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.)
801.690-1 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_letters/05-01_041505.html
) and the OFPP Memorandum
dated January 20, 2006, titled The Federal Acquisition Certification in
Contracting Program (see http://www.whitehouse.gov/omb/procurement/acq_wk/fac_contracting_program.pdf
).
ACM means the Acquisition Career Manager, who is the Associate
Deputy Assistant Secretary for Acquisitions.
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 may also include a
limited number of employees that perform significant acquisition-
related responsibilities, (e.g., employees in the GS-345, GS-346, 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 point, 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(c), who evaluate and recommend to the
DSPE individuals for delegation of contracting authority as Level II
warrant or Level III warrant (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
Level I warrant or higher level warrant 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 the OFPP
Memorandum dated January 20, 2006, titled The Federal Acquisition
Certification in Contracting Program.
Termination means the revocation or rescission of an appointment as
contracting officer.
801.690-2 General.
(a) The VA COCP applies to all VA programs except for the
appointment of contracting officers under the Inspector
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General Act (Pub. L. 95-452) and for contracting officers designated in
sections 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) Warrant levels are synonymous with the Federal Acquisition
Certification in Contracting Program certification levels specified in
the OFPP Memorandum dated January 20, 2006, titled ``The Federal
Acquisition Certification in Contracting Program.'' The COCP is based
on the following levels and types of authority:
(1) Level I warrant. 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
warrant 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 warrant. 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) warrant. 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) warrant. 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 warrant and Level III
(Senior Limited) warrant 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 to contracting officers for procurement-specific
requirements or to contracting officers who are members of groups or
consortiums established for regional contracting initiatives.
(d) Micro-purchase Level. Micro-purchase Level authority, not to
exceed the micro-purchase threshold (currently $3,000) ($2,500 for
acquisition of services subject to the Service Contract Act, and $2,000
for acquisition of construction subject to the Davis Bacon Act) (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 card holder 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 warrant and Level III
(Senior Limited and Unlimited) warrant contracting officers;
(3) Establishing and developing additional agency-specific
training; 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
the 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 Chief, Acquisition Training and Career Development
Division (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 Level and Level I warrant level within
their assigned activity;
(4) Establishing procedures and maintaining records for the
appointment and termination of appointment of purchase card holders at
the Micro-purchase Level and Level I warrant contracting officers.
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 warrant and Level
III (Senior Limited or Unlimited) warrant 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
[[Page 2728]]
transcripts, work experience, and other supporting documentation needed
to substantiate successful completion of all warrant requirements.
These employees shall enroll in the Acquisition Career Management
Information System (ACMIS), the data system that serves as the
repository of required information on VA's acquisition workforce.
801.690-4 Selection.
(a) The HCA may appoint Level I warrant contracting officers or
submit written requests to the DSPE for appointment of Level II warrant
or Level III (Senior Limited or Unlimited) warrant contracting
officers. A VA official one level above the HCA may submit a written
request to the DSPE for the appointment of an 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 Level I, II, or III warrant level as specified in OFPP
Policy Letter 05-01 and the OFPP Memorandum dated January 20, 2006,
titled ``the Federal Acquisition Certification in Contracting
Program.'' 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. For contracting officers warranted before January 1, 2007,
certification will not be required to retain their existing warrants,
but will be required before higher level warrants 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) For contracting officer warrants issued prior to January 1,
2007, the minimum requirements for qualifying as a contracting officer
previously specified in VA regulation and other internal VA guidance
shall apply.
(c) Multi-VISN. The HCA shall obtain written or e-mail concurrence
from the HCAs of the other affected VISNs or Area Offices when
requesting Multi-VISN contracting authority.
(d) 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/policies/contract.htm).
(2) The Chief, ATCD, oversees the ATP.
(3) Training course equivalency will be determined and approved by
the 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 ACM and the decisions of the ACM shall be final.
(e) 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 warrant
contracting officers) and the Chief, ATCD (for Level II warrant and
Level III warrant contracting officers), shall make written
determinations every October 1 for each warranted contracting officer
on whether 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 warrant 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 warrant and
Level III warrant contracting officers for training that does not have
pre-assigned CLP or 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. Questions regarding the CLP or CEU
values assigned to training shall be resolved by the ACM.
(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.
(f) 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 HCA will make the final determination whether a course is
accepted as business-related for the purpose of granting Level I
warrant authority. The Chief, ATCD, will make the final determination
whether a
[[Page 2729]]
course is accepted as business-related for the purpose of granting
Level II warrant or Level III warrant 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.
(g) 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 Training
requirements for their respective warrant levels. 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, former VA employees who
held contracting authority at their previous Federal Government
agencies or VA positions, or VA employees whose warrants have been
rescinded or have expired. 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
Training requirements for the specific warrant authority that they
currently hold or to which they wish to be appointed. Contracting
officers requesting a higher level warrant (e.g., from Level I warrant
to Level II warrant or from Level III (Senior Limited) warrant to Level
III (Senior Unlimited) warrant) must also meet the current Experience,
Education, and 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 reinstated.
(h) The training requirements for contracting officers whose
delegated authority is limited to the acquisition of transportation
services, as provided in Part 102-117 of title 41 Code of Federal
Regulations, the Federal Management Regulation, shall be as specified
therein.
801.690-6 Appointment.
(a) Only the DSPE (for Level II and Level III (Senior Limited or
Unlimited)) warrants and the respective HCA (for Level I warrants) may
sign the Certificate of Appointment as Contracting Officer. HCAs are
authorized to grant Micro-purchase Level and Level I warrant
contracting authority up to the thresholds specified for these
authorities at 801.690-2(c). The HCA may recommend a candidate to the
DSPE for appointment as a Level II warrant or Level III warrant
contracting officer. Only the DSPE may grant Level II warrant, Level
III (Senior Limited or Unlimited) warrant, and Multi-VISN authority.
(b) All Certificates of Appointment as Contracting Officers and
other written documents must clearly state any limitations or
restrictions on the authority.
(c) The Privacy Act of 1974 applies to the information collected
during contracting officer selection and appointment.
801.690-7 Termination.
(a) The DSPE (for all warrant levels) or HCA (for Micro-purchase
Level and Level I warrants) may revoke or rescind the appointment of a
contracting officer at any time. HCAs may submit a recommendation to
revoke or rescind the appointment of a contracting officer's Level II
warrant or Level III (Senior Limited or Unlimited) warrant to the DSPE.
Revocation may be based on the following circumstances:
(1) There is no longer a need for the appointment;
(2) There has been a personnel action such as a resignation,
retirement, transfer;
(3) Unsatisfactory performance;
(4) Alleged official misconduct pending criminal or administrative
investigations;
(5) Failure to meet training or skills currency requirements;
(6) A contracting officer taking an action that exceeds his or her
authority;
(7) Blatant disregard for adhering to acquisition regulations,
policies and procedures; or
(8) Situations similar to those in paragraphs (a)(1) through (7) of
this section that may require remedial action.
(b) The HCA should discuss a termination of contracting authority
for cause with the servicing Human Resource Management Office to
determine the impact, if any, on the contracting officer's continued
employment.
(c) All changes in the status (e.g., departure, name, position, or
grade change) of a micro-purchase cardholder or Level I warrant holder
shall be reported in writing by the individual's supervisor to the HCA
within five workdays of occurrence. All changes in the status of a
Level II warrant or Level III (Senior Limited or Unlimited) warrant
holder shall be reported in writing by the HCA to the DSPE within five
workdays of occurrence. Level II warrants or Level III (Senior Limited
or Unlimited) warrants that are terminated, rescinded, or superseded
should be returned to the Director, Acquisition Resources Service
(049A5), citing the exact reason for the termination, rescission, or
supersession.
801.690-8 Interim appointment provisions.
(a) To ensure availability of procurement support, an interim
appointment may be granted for a limited period of time when a
candidate does not fully meet the minimum qualifications for
Experience, Education, or successful completion of all acquisition
Training requirements in previous VA regulations or VA internal
guidance, if applicable, or as provided in the OFPP Memorandum dated
January 20, 2006, titled ``the Federal Acquisition Certification in
Contracting Program.'' All interim appointments made after January 1,
2007, for individuals who do not meet the minimum Experience,
Education, or Training requirements for Levels I through III warrants
shall be signed by the SPE or, if so delegated, the ACM, without power
to redelegate, as provided in the OFPP Memorandum dated January 20,
2006, titled ``the Federal Acquisition Certification in Contracting
Program.''
(1) In a request for an interim appointment, the HCA must include
the information required by 801.690-4 on the candidate's training,
experience, performance, and education, and a justification for the
interim appointment.
(2) The HCA must ensure that the candidate with interim appointment
meets the minimum Experience, Education, and Training requirements
within the time specified on the warrant.
(3) A contracting officer with interim appointment should
successfully complete all remaining required courses or equivalent
courses within the time specified on the warrant.
(b) At the HCA's written request, a permanent warrant may be issued
during the interim appointment period when the contracting officer has
satisfac