[Federal Register Volume 73, Number 10 (Tuesday, January 15, 2008)]
[Rules and Regulations]
[Pages 2712-2792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25380]
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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
Federal Register / Vol. 73, No. 10 / Tuesday, January 15, 2008 /
Rules and Regulations
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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veteran-owned small businesses that has been replaced by a FAR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 [email protected].
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
[[Page 2713]]
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
[[Page 2727]]
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
satisfactorily met the requirements. The appropriate documentation
(copies of
[[Page 2730]]
course certificates) must be submitted with the HCA's request.
(c) An interim appointment may be appropriate for instances such as
organizational changes or sudden, extreme, and unexpected increases in
workload complexity and/or volume.
(d) Interim appointments will not be granted under the following
circumstances:
(1) To a candidate who is warranted but does not meet the Education
or Training requirements for higher level (e.g., from Level I warrant
to Level II warrant) contracting authority (unless waived by the SPE);
(2) To a candidate who does not have a current record of
satisfactory-or-above performance; or
(3) To a contracting officer whose authority has expired and who
has not met the continuing education requirement during the two
preceding years.
(e) Generally, an interim appointment may not exceed one year.
801.690-9 Distribution of Certificates of Appointment.
(a) The DSPE or HCA will issue an original Certificate of
Appointment as Contracting Officer to the appointed candidate, who must
display the Certificate at his or her duty station.
(b) The HCA shall file a copy of the warrant in the delegation of
authority file.
(c) The contracting officer must furnish a copy to the respective
fiscal activity.
(d) Each Certificate will be serially numbered, reflecting the
facility number, the year of issuance (e.g., facility number--year of
issuance (2 digits)--sequential number, 560-04-10), and have an
effective and expiration date.
801.695 VA's Appointment of HCAs Program.
801.695-1 Policy.
(a) VA's policy is to have a minimum number of HCAs. Generally,
there will be one HCA per VISN, other major VA organizational element,
or major acquisition organization. The authority vested in the
Secretary to select, appoint, and terminate HCAs is delegated to the
SPE and is further delegated from the SPE to the DSPE.
(b) Under the FAR at 1.601(a) and 2.101, an HCA is a senior level
position. The official who occupies this position should have the
education, training, and experience necessary to make the decisions
required of an HCA.
(c) Except as provided in the FAR, an HCA may delegate his or her
authority to other individuals within the HCA's acquisition activity.
Such delegations must be in writing and must set forth the specific
limitations on the designee's authority. The delegation may include
authority to appoint a contracting officer at the Micro-purchase Level
or the Level I warrant levels.
801.695-2 Procedures for appointment of HCAs.
An HCA must be appointed in writing by the DSPE and in accordance
with internal VA policy. The written delegation must state any
limitation on the HCA's authority, other than a limitation contained in
an applicable law or regulation.
801.695-3 Authority of the HCA.
(a) The HCA has overall responsibility for managing the procurement
program assigned to the activity.
(b) The HCA's level of contracting authority, if any, shall be
specified in the HCA's appointment letter.
(c) The HCA has the authority to appoint and terminate contracting
officers with authority to conduct procurements of up to and including
the simplified acquisition threshold or the maximum order threshold or
limitation for orders placed against Federal Supply Schedule contracts,
and to terminate such appointments (Micro-purchase Level and Level I
warrant appointments).
PART 802--DEFINITIONS OF WORDS AND TERMS
Subpart 802.1--Definitions
Sec.
802.101 Definitions.
Authority: 40 U.S.C. 121(C) and 48 CFR 1.301-1.304.
Subpart 802.1--Definitions
802.101 Definitions.
A/E means architect/engineer.
Chief Acquisition Officer means the Assistant Secretary for
Management.
COTR means Contracting Officer's Technical Representative or
Contracting Officer's Representative.
D&S Committee means the VA Debarment and Suspension Committee, a
committee consisting of the Director, Acquisition Resources Service
(chair), and representatives of the Office of Management, Office of
Inspector General, and the program office to which the particular
debarment or suspension case relates. A representative from OGC will
serve as legal counsel to the D & S Committee.
Debarring official means the DSPE, who is also the Associate Deputy
Assistant Secretary for Acquisitions. Authority to impose debarment is
delegated to the SPE and is further delegated to the DSPE.
DSPE means the Deputy Senior Procurement Executive, who is also the
Associate Deputy Assistant Secretary for Acquisitions. The DSPE must be
career member of the Senior Executive Service.
FAR means the Federal Acquisition Regulation.
GAO means the Government Accountability Office.
HCA means the Head of the Contracting Activity, an individual
appointed in writing by the DSPE under VA's Appointment of HCAs Program
(see 801.695).
OGC means the Office of the General Counsel.
Resident Engineer has the same meaning as contracting officer's
technical representative or contacting officer's representative (see
852.270-1).
SPE means the Senior Procurement Executive who is also the Deputy
Assistant Secretary for Acquisition and Materiel Management. The SPE is
responsible for the management direction of the VA acquisition system.
The SPE may further delegate authority to the DSPE.
Suspending official means the DSPE. Authority to impose suspension
is delegated to the SPE and is further delegated to the DSPE.
VA means the Department of Veterans Affairs.
VAAR means the Department of Veterans Affairs Acquisition
Regulation.
VISN means Veterans Integrated Service Network, an integrated
network of VA facilities that are focused on pooling and aligning
resources to best meet local needs in the most cost-effective manner
and provide greater access to care.
PART 803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
Subpart 803.1--Safeguards
Sec.
803.101 Standards of conduct.
803.101-3 Department regulations.
803.104 Procurement integrity.
803.104-7 Violations or possible violations.
Subpart 803.2--Contractor Gratuities to Government Personnel
803.203 Reporting suspected violations of the Gratuities clause.
803.204 Treatment of violations.
Subpart 803.3--Reports of Suspected Antitrust Violations
803.303 Reporting suspected antitrust violations.
Subpart 803.4--Contingent Fees
803.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
[[Page 2731]]
Subpart 803.5--Other Improper Business Practices
803.502 Subcontractor kickbacks.
803.570 Commercial advertising.
803.570-1 Policy.
803.570-2 Contract clause.
Subpart 803.6--Contracts with Government Employees or Organizations
Owned or Controlled by Them
803.602 Exceptions.
Subpart 803.7--Voiding and Rescinding Contracts
803.703 Authority.
803.705 Procedures.
Subpart 803.8--Limitation on the Payment of Funds to Influence Federal
Transactions
803.804 Policy.
803.806 Processing suspected violations.
Subpart 803.70--Contractor Responsibility To Avoid Improper Business
Practices
803.7000 Display of the VA Hotline poster.
803.7001 Contract clause.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
Subpart 803.1--Safeguards
803.101 Standards of conduct.
803.101-3 Department regulations.
(a) Part 0 of 38 Code of Federal Regulations (CFR) states the
standards of conduct for all VA employees, including contracting
officials.
(b) Subpart B of 38 CFR part 0 states the employee financial
disclosure requirements.
803.104 Procurement integrity.
803.104-7 Violations or possible violations.
(a) Contracting officers must forward the information required by
FAR 3.104-7(a)(1) to the HCA. In consultation with OGC, the HCA may
make the determination and concurrence specified in FAR 3.104-7(a)(1).
(b) Upon receipt of information describing a violation or possible
violation of subsections 27(a), (b), (c), or (d) of the Office of
Federal Procurement Policy Act of 1974 (see FAR 3.104-3), the HCA will
take action in accordance with FAR 3.104-7(b). The HCA must also report
violations or possible violations to the VA Office of the Inspector
General.
(c) The authority to make the determinations specified in FAR
3.104-7(b)(5) and 3.104-7(d)(2)(ii)(B) is delegated to the SPE and is
further delegated to the DSPE.
(d) As provided in FAR 3.104-7(f), the HCA may authorize a
contracting officer to award a contract after notifying the DSPE of the
circumstances warranting such an award.
Subpart 803.2--Contractor Gratuities to Government Personnel
803.203 Reporting suspected violations of the Gratuities clause.
(a) Any VA employee must report a suspected violation of the
Gratuities clause to the contracting officer or a higher level VA
official.
(b) The report must identify the contractor and the personnel
involved, provide a summary of the pertinent evidence and circumstances
that indicate a violation, and include any other available supporting
documentation.
(c) The contracting officer or higher level official must
supplement the file with appropriate information and promptly forward
the report to the DSPE, with copies to the VA Office of the Inspector
General and the Assistant Secretary for Management.
803.204 Treatment of violations.
In providing the notice and hearing required by FAR 3.204, the SPE
may make the determinations required by FAR 3.204. This authority is
further delegated to the DSPE. The DSPE shall use the following
procedures to determine whether or not a violation of the Gratuities
clause has occurred:
(a) Upon receipt of an allegation or evidence of a violation of the
Gratuities clause, the DSPE shall refer the matter to the D&S Committee
to conduct a fact-finding. Upon completion of the fact-finding, the D&S
Committee shall present the facts and recommendations for further
action to the DSPE.
(b) If the DSPE finds a basis for further action, the D&S Committee
shall prepare a notice under FAR 3.204 for signature of the DSPE. If
suspension or debarment is also being considered, the D&S Committee
shall also follow the procedures contained in 809.4. The signed notice
will be sent to the last known address of the contractor, the
contractor's counsel, or agent for service of process, by certified
mail, return receipt requested, or any other method that provides
signed evidence of receipt. In the case of a business, the D&S
Committee may send the notice to any partner, principal, officer,
director, owner or co-owner, or joint venture.
(c) If VA does not receive a reply from the contractor within 45
calendar days of sending the notice, the D&S Committee will prepare a
recommendation and refer the case to the DSPE for a decision on whether
or not to take further action under FAR 3.204.
(d) If VA receives a reply from the contractor within 45 calendar
days of sending the notice, the D&S Committee must consider the
information in the reply before the D&S Committee makes its
recommendation to the DSPE.
(e) The D&S Committee, upon the request of the contractor, must, as
soon as practicable, allow the contractor an opportunity to appear
before the D&S Committee, in person or through a representative, to
present information or argument. The contractor may supplement the oral
presentation with written information and argument. The proceeding will
be conducted in an informal manner and without requirement for a
transcript. The D&S Committee shall prepare a report of the
presentation for submission to the DSPE and must consider the
information presented when making its recommendation to the DSPE.
(f) If the D&S Committee finds that the contractor's submission in
opposition to further action under FAR 3.204 raises a genuine dispute
over facts material to the action, then the D&S Committee shall submit
to the DSPE the information establishing the dispute of material facts.
If the DSPE agrees that there is a genuine dispute of material facts,
the DSPE shall refer the dispute to a designee for resolution under
809.470. The DSPE may reject the findings of the fact-finding official
only if the findings are clearly erroneous or arbitrary and capricious.
(g) If there are no disputes over material facts or if all disputes
over material facts have been resolved under 809.470, the DSPE will
make a decision on the basis of all information available, including
findings of facts and oral or written arguments presented or submitted
to the D & S Committee by the contractor. The DSPE should consider any
mitigating factors, such as those listed at FAR 9.406-1 and 809.406-1,
prior to making a final decision.
Subpart 803.3--Reports of Suspected Antitrust Violations
803.303 Reporting suspected antitrust violations.
(a) Any VA employee who suspects or has evidence of possible
antitrust violations must report the suspected violations, in
accordance with FAR 3.303, to the VA Office of the Inspector General
and to the Assistant Secretary for Management for review and submission
to OGC.
(b) Either the General Counsel or the Inspector General will
determine whether to submit the case to the U.S. Attorney General.
[[Page 2732]]
Subpart 803.4--Contingent Fees
803.405 Misrepresentations or violations of the Covenant Against
Contingent Fees.
(a) A VA employee who suspects or has evidence of an attempted or
actual exercise of improper influence, misrepresentation of a
contingent fee arrangement, or any other violation of the Covenant
Against Contingent Fees must report the matter to the contracting
officer or to the VA Office of Inspector General.
(b) In addition to the requirement in paragraph (a) of this
section, a contracting officer must report a suspected or actual
misrepresentation or violation to the DSPE.
(c) Before taking any administrative action under FAR 3.405, a
contracting officer must consult with his or her Regional Counsel. A
contracting officer in the Central Office must consult with OGC.
(d) Contracting officers shall route any referrals of suspected
fraudulent or criminal matters to the Department of Justice under FAR
3.405(b)(4) through OGC or the VA Office of the Inspector General, with
a copy to the Assistant Secretary for Management. The General Counsel
or the Inspector General will determine whether to forward the referral
to the Department of Justice.
Subpart 803.5--Other Improper Business Practices
803.502 Subcontractor kickbacks.
A VA employee who suspects a violation of the Anti-kickback Act
must report the suspected violation to OGC for review.
803.570 Commercial advertising.
803.570-1 Policy.
It is VA policy that contractors will not advertise the award of
contracts or refer to VA contracts in contractors' commercial
advertising in such a manner as to state or imply that VA endorses a
product, project, or commercial line of endeavor. The intent of this
policy is to preclude the appearance of bias toward any product or
service.
803.570-2 Contract clause.
The contracting officer shall insert the clause at 852.203-70,
Commercial advertising, in solicitations and contracts expected to
equal or exceed the micro-purchase threshold.
Subpart 803.6--Contracts With Government Employees or Organizations
Owned or Controlled by Them
803.602 Exceptions.
The authority to authorize an exception to the policy in FAR 3.601
is delegated to the SPE and is further delegated to the DSPE.
Subpart 803.7--Voiding and Rescinding Contracts
803.703 Authority.
The authority to make determinations under FAR Subpart 3.7, Voiding
and Rescinding Contracts, is delegated to the SPE and is further
delegated to the DSPE.
803.705 Procedures.
In making a determination to void or rescind a contract, the DSPE
must follow the procedures of FAR 3.705 and the following:
(a) Upon receipt of an allegation or evidence of situations meeting
the provisions of FAR 3.700, the DSPE shall refer the matter to the D&S
Committee to conduct a finding of facts. Upon completion of the fact-
finding, the D&S Committee shall present the facts and recommendations
for further action to the DSPE.
(b) If the DSPE finds a basis for further action, the D&S Committee
shall prepare a notice under FAR 3.705 for signature of the DSPE. If
suspension or debarment is being considered, the D&S Committee shall
also follow the procedures of 809.4. The signed notice will be sent to
the last known address of the contractor, the contractor's counsel, or
registered agent, by certified mail, return receipt requested. In the
case of a business, the D&S Committee may send the notice to any
partner, principal, officer, director, owner or co-owner, or joint
venture.
(c) If VA does not receive a reply from the contractor within 30
calendar days of receipt of the notice by the addressee, the D&S
Committee will prepare a recommendation and refer the case to the DSPE
for a decision on whether or not to take further action under FAR
3.705.
(d) If VA receives a reply from the contractor within 30 calendar
days of receipt of the notice, the D&S Committee must consider the
information in the reply before the D&S Committee makes its
recommendation to the DSPE.
(e) The D&S Committee, upon the request of the contractor, must, as
soon as practicable, allow the contractor an opportunity to appear
before the D&S Committee, in person or through a representative, to
present information or argument. The contractor may supplement the oral
presentation with written information and argument. The proceeding will
be conducted in an informal manner and without requirement for a
transcript. The D&S Committee shall prepare a report of the
presentation for submission to the DSPE.
(f) If the D&S Committee finds that the contractor's submission in
opposition to further action under FAR 3.705 raises a genuine dispute
over facts material to the action, then the D&S Committee shall submit
to the DSPE the information establishing the dispute of material facts.
If the DSPE agrees that there is a genuine dispute of material facts,
the DSPE shall refer the dispute to a designee for resolution under
809.470. The DSPE may reject the findings of the fact-finding official
only if the findings are clearly erroneous or arbitrary and capricious.
(g) If there are no disputes over material facts or if all disputes
over material facts have been resolved under 809.470, the DSPE will
make a decision on the basis of all information available, including
findings of facts and oral or written arguments presented or submitted
to the D&S Committee by the contractor.
Subpart 803.8--Limitation on the Payment of Funds to Influence
Federal Transactions
803.804 Policy.
A contracting officer must forward a copy of all contractor
disclosures furnished under the clause at FAR 52.203-12, Limitations on
Payments to Influence Certain Federal Transactions, to the Director,
Acquisition Resources Service, for subsequent submission by the
Secretary to Congress.
803.806 Processing suspected violations.
A VA employee must report suspected violations of 31 U.S.C. 1352,
Limitation on Use of Appropriated Funds to Influence Certain Federal
Contracting and Financial Transactions, to the Assistant Secretary for
Management and the VA Office of the Inspector General.
Subpart 803.70--Contractor Responsibility to Avoid Improper
Business Practices
803.7000 Display of the VA Hotline poster.
(a) Under the circumstances described in paragraph (b) of this
section, a contractor must display prominently a VA Hotline poster
prepared by the VA Office of Inspector General in a common
[[Page 2733]]
work area within a business segment performing work under a VA
contract.
(b) A contractor must comply with paragraph (a) of this section
when all of the following apply:
(1) The contractor is awarded a VA contract for $500,000 or more
for supplies or services, or $3 million or more for construction.
(2) The contractor has not established an internal reporting
mechanism and program, such as a hotline, by which employees may report
suspected instances of improper conduct, and instructions that
encourage employees to make such reports.
803.7001 Contract clause.
The contracting officer shall insert the clause at 852.203-71,
Display of Department of Veterans Affairs Hotline poster, in
solicitations and contracts expected to equal or exceed the dollar
thresholds established in 803.7000.
PART 804--ADMINISTRATIVE MATTERS
Subpart 804.1--Contract Execution
Sec.
804.101 Contracting officer's signature.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 804.1--Contract Execution
804.101 Contracting officer's signature.
(a) If a contracting officer's name and title has been typed,
stamped, or printed on the contract, and that contracting officer is
not available to sign the contract, another contracting officer, as
specified in 801.602, may sign the contract.
(b) The contracting officer who signs the contract must have
contracting authority to cover the contract to be signed and must
annotate his or her name and title below his or her signature.
SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING
PART 805--PUBLICIZING CONTRACT ACTIONS
Subpart 805.2--Synopses of Proposed Contract Actions
Sec.
805.202 Exceptions.
805.205 Special situations.
805.207 Preparation and transmittal of synopses.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 805.2--Synopses of Proposed Contract Actions
805.202 Exceptions.
In accordance with FAR 5.202, the contract actions in 806.302-5 do
not require synopsizing.
805.205 Special situations.
(a) A contracting officer may procure paid advertising in a daily
newspaper circulated in the local area to publicize a proposed
procurement of architectural and engineering (A/E) services not
expected to exceed $10,000. See FAR 5.101(b)(4)(i) and 5.502(a).
(b) A contracting officer may procure paid advertising in a daily
newspaper circulated in the local area or in professional journals to
publicize a proposed procurement of professional services (e.g., scarce
medical specialist services, health-care resources, advisory and
assistance services). See FAR 5.101(b)(4)(i) and 5.502(a).
805.207 Preparation and transmittal of synopses.
(a) When an A/E evaluation board is ready to advertise for A/E
services, the board must establish the geographic area within which it
will consider A/E firms (including joint ventures).
(b) The geographic area must be large enough to assure selection of
three to five firms highly qualified for the particular project
involved, but not so large as to make the evaluation process unduly
burdensome.
PART 806--COMPETITION REQUIREMENTS
Subpart 806.3--Other Than Full and Open Competition
Sec.
806.302 Circumstances permitting other than full and open
competition.
806.302-5 Authorized or required by statute.
806.302-7 Public interest.
806.304 Approval of the justification.
Subpart 806.5--Competition Advocates
806.501 Requirement.
806.570 Planning requirements.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
Subpart 806.3--Other Than Full and Open Competition
806.302 Circumstances permitting other than full and open competition.
806.302-5 Authorized or required by statute.
(a) Full and open competition need not be provided for when
awarding:
(1) Scarce Medical Specialist contracts negotiated under the
authority of 38 U.S.C. 7409, but only when such contracts are with
institutions affiliated with VA under 38 U.S.C. 7302. (38 U.S.C. 7409)
(2) Contracts for health-care resources negotiated under the
authority of 38 U.S.C. 8153, but only when such contracts are with
institutions affiliated with VA under 38 U.S.C. 7302, including medical
practice groups and other approved entities associated with affiliated
institutions (entities will be approved if determined legally to be
associated with affiliated institutions), or with blood banks, organ
banks, or research centers. The justification and approval requirements
of FAR 6.303 and 806.304 do not apply to such contracts or agreements.
(38 U.S.C. 8153)
(3) Contracts for health-care resources, negotiated under the
authority of 38 U.S.C. 8153, that are not acquired under the authority
of paragraph (a)(2) of this section, but only when the procurement is
conducted in accordance with part 873. The justification and approval
requirements of FAR 6.303 and 806.304 shall apply to such contracts and
agreements conducted on a sole-source basis. (38 U.S.C. 8153)
(b) Various sections of title 38 U.S.C. authorize the Secretary to
enter into certain contracts and certain types of contracts without
regard to any other provisions of law. When the contracting officer
enters into a contract without providing full and open competition for
any of the following items or services, the contracting officer must
cite 41 U.S.C. 253(c)(5) and the following authorities:
(1) For contracts for orthopedic and prosthetic appliances and
related services including research, cite 38 U.S.C. 8123. (38 U.S.C.
8123)
(2) For contracts to purchase or sell merchandise, equipment,
fixtures, supplies and services for the operation of the Veterans
Canteen Service, cite 38 U.S.C. 7802. (38 U.S.C. 7802)
(3) For contracts or leases for the operation of parking facilities
established under authority of 38 U.S.C. 8109(b), provided that the
establishment, operation, and maintenance of such facilities have been
authorized by the Secretary or designee, cite 38 U.S.C. 8109(f). (38
U.S.C. 8109)
(4) For contracts for laundry and other common services, such as
the purchase of steam, negotiated with non-profit, tax-exempt,
educational, medical, or community institutions, when specifically
approved by the Secretary or designee and when such services are not
reasonably available from private commercial sources, cite 38 U.S.C.
8122(c). (38 U.S.C. 8122)
(5) For contracts or agreements with public or private agencies for
services of
[[Page 2734]]
translators, cite 38 U.S.C. 513. (38 U.S.C. 513)
(c) Except for an acquisition under paragraph (a)(2) of this
section, the contracting officer must provide a justification under FAR
6.303 and obtain an approval under 806.304 for each acquisition
described in this section.
806.302-7 Public interest.
(a) When the contracting officer uses 41 U.S.C. 253(c)(7) to
support a contract award using other than full and open competition,
the contracting officer must prepare a Determination and Finding (D&F)
under FAR 1.7 and a justification under FAR 6.303. The D&F must be
signed by the Secretary.
(b) The contracting officer must submit the D&F and justification
through the HCA to the Agency Competition Advocate for signature by the
Secretary. The submission must include the date the contracting officer
expects to award the contract.
(c) VA must notify Congress 30 days before the expected award date.
The Agency Competition Advocate is responsible for preparing this
notice. The contracting officer may not award the contract until
notified by the Agency Competition Advocate.
806.304 Approval of the justification.
(a) For a justification other than a class justification specified
in FAR 6.304(c), Table 806.304-1 provides the authorities who may
approve a justification:
Table 806.304.1
------------------------------------------------------------------------
Alternate
Proposed contract amount Approving approving
authority authority
------------------------------------------------------------------------
(1) Not exceeding $500,000...... The contracting Not applicable.
officer, as
provided in FAR
6.304(a)(1).
(2) Over $500,000 but not Contracting The Agency
exceeding $10 million. Activity Competition
Competition Advocate (see
Advocate (see 806.501(a)).
806.501(b) and
(c)) unless that
Advocate is the
contracting
officer.
(3) Over $10 million but not Agency Competition Not applicable.
exceeding $50 million. Advocate.
(4) Over $50 million............ Senior Procurement Not applicable.
Executive (see
802.100).
------------------------------------------------------------------------
(b) For class justifications specified in FAR 6.304(c), the
contracting officer must obtain the approval of the Agency Competition
Advocate for all proposed justifications with an estimated value of up
to $50 million. The contracting officer must obtain the approval of the
SPE for all proposed justifications with an estimated value of more
than $50 million.
Subpart 806.5--Competition Advocates
806.501 Requirement.
(a) The Associate Deputy Assistant Secretary for Acquisitions is
the Agency Competition Advocate. The Agency Competition Advocate may
further delegate authority to other VA officials in VA Administrations
and staff offices.
(b) The Executive Director and Chief Operating Officer, National
Acquisition Center, is the Contracting Activity Competition Advocate
for the Center.
(c) Each HCA (see Subpart 802.1) will serve as the Contracting
Activity Competition Advocate in all other cases.
(d) The authority in paragraphs (b) and (c) of this section is not
delegable.
806.570 Planning requirements.
(a) Each Contracting Activity Competition Advocate must do the
following:
(1) Develop a Competition Plan.
(2) Incorporate the Plan in the internal operating procedures of
the facility or organization in which the contracting activity is
located.
(3) Obtain the endorsement and support of the facility or staff
office director.
(4) Ensure that the services and offices that the contracting
activity supports understand the plan.
(b) At a minimum, the Competition Plan must include the following:
(1) Approval requirements for other than full and open competition
specified in FAR 6.304.
(2) A description of the synopsis requirements in FAR Subpart 5.2
to ensure that responsible staff fully understand the advance
procurement planning that is required.
(3) A description of how to integrate the Competition Plan into
advance procurement planning.
(4) A listing of obstacles to competition and a proposal for
overcoming them.
(5) A method for increasing cost competition for contracts and
competition on other significant factors.
PART 807--ACQUISITION PLANNING
Subpart 807.1--Acquisition Plans
Sec.
807.103 Agency-head responsibilities.
Subpart 807.3--Contractor Versus Government Performance
807.300 Scope of subpart.
807.304-77 Right of first refusal.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 807.1--Acquisition Plans
807.103 Agency-head responsibilities.
The authority to prescribe procedures in FAR 7.103 is delegated to
the SPE and is further delegated to the DSPE.
Subpart 807.3--Contractor Versus Government Performance
807.300 Scope of subpart.
This subpart prescribes the use of VAAR clause at 852.207-70,
Report of employment under commercial activities, when contracting for
commercial services under Office of Management and Budget (OMB)
Circular A-76 or VA's cost comparison process. The cost comparison
process is used by VA to determine whether to use commercial or
Government resources to provide commercial services.
807.304-77 Right of first refusal.
(a) In addition to the Right of First Refusal of Employment clause
specified in FAR 52.207-3, the contracting officer must include the
clause ``Report of Employment Under Commercial Activities'' at 852.207-
70 in all cost comparison solicitations where VA personnel may be
displaced. This clause is primarily intended to verify that the
contractor is meeting its obligation to provide Federal workers who are
adversely affected by the contract award and who are qualified for the
jobs the first opportunity for employment openings created by the
contract.
(b) The Report of Employment Under Commercial Activities clause is
also
[[Page 2735]]
prescribed to avoid inappropriate severance payment. To implement the
clause, the contracting officer (or COTR) must first obtain a list of
Federal personnel who will be adversely affected as a result of the
anticipated contract from the servicing Human Resources Service office.
The list should be requested as soon as a preliminary determination is
made to contract out a function subject to OMB Circular A-76.
(Contracting officers may designate a COTR to coordinate the
information and reporting requirements.)
PART 808--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Sec.
808.002 Priorities for use of Government supply sources.
Subpart 808.4--Federal Supply Schedules
808.402 General.
Subpart 808.8--Acquisition of Printing and Related Supplies
808.802 Policy.
Authority: 40 U.S.C. 121(c) and (d); and 48 CFR 1.301-1.304.
808.002 Priorities for use of Government supply sources.
(a) Supplies. (1) As used in FAR 8.002(a)(1)(i), the term ``agency
inventories'' includes Supply Fund Stock and VA Excess.
(2) A national committed use contract awarded by the VA National
Acquisition Center has a priority between wholesale supply sources (FAR
8.002(a)(1)(v)) and mandatory Federal Supply Schedules (FAR
8.002(a)(1)(vi)).
(3) Federal Supply Schedule contracts awarded by the VA National
Acquisition Center in Federal Supply Classification (FSC) Groups 65 and
66 shall be mandatory for use by VA and shall have the same order of
priority as mandatory Federal Supply Schedules (FAR 8.002(a)(1)(vi)).
VA contracting officers must place orders against Federal Supply
Schedules contracts awarded by the VA National Acquisition Center in
FSC Groups 65 and 66 in the following descending order of priority:
(i) Nationally awarded Blanket Purchase Agreements (BPAs), issued
by the VA National Acquisition Center against Federal Supply Schedules.
(ii) Multi-VISN, single-VISN, or locally awarded BPAs, issued by
VISN, regional, or local VA contracting officers against Federal Supply
Schedules.
(iii) Federal Supply Schedules without BPAs.
(4) Indefinite delivery indefinite quantity (IDIQ) contracts,
awarded by VISN, regional, or local facility VA contracting officers,
for supplies not covered by national committed use contracts or Federal
Supply Schedule contracts shall have an order of priority between
optional use Federal Supply Schedules (FAR 8.002(1)(a)(vii)) and
commercial sources (including educational and nonprofit institutions)
(FAR 8.002(1)(a)(viii)). VA contracting officers must place delivery
orders against IDIQ contracts, awarded by VISN, regional, or a local
facility contracting officers, for supplies not covered by national
committed use contracts or Federal Supply Schedule contracts in the
following descending order of priority:
(i) VISN or regionally awarded contracts.
(ii) Locally awarded contracts.
(5) Open market purchases (purchases not falling within any of the
higher priorities in paragraphs (a)(2) through (4) of this section)
have the same priority as commercial sources (including educational and
nonprofit institutions) (FAR 8.002(1)(a)(viii)).
(b) Unusual or compelling urgency. The contracting officer may use
a source lower in priority than as specified in paragraph (a) of this
section when the need for supplies or services is of an unusual or
compelling urgency (see FAR 6.302-2). The Contracting Officer must
include a justification for each deviation in the procurement file.
(c) Eligible Beneficiaries. (1) A contracting officer may authorize
an acquisition from the Veterans Canteen Service or a commercial source
when a VA healthcare official (e.g., social worker, physician)
determines that personal selection of shoes, clothing, and incidentals
will result in a therapeutic benefit to an eligible beneficiary.
(2) The contracting officer must cite Federal Prison Industries,
Inc., clearance No. 1206 in the purchase document for any purchase from
a commercial source of dress shoes similar to Federal Prison
Industries, Inc., Style No. 86-A.
Subpart 808.4--Federal Supply Schedules
808.402 General.
The Executive Director and Chief Operating Officer, VA National
Acquisition Center, advertises, negotiates, awards, administers, and
issues the Federal Supply Schedules for Federal Supply Classification
Groups 62, 65, and 89 and for cost-per-test services under Group 66.
Subpart 808.8--Acquisition of Printing and Related Supplies
808.802 Policy.
The Director, Publications Staff, Office of Acquisition and
Materiel Management, VA Central Office, is the Central Printing
Authority for VA (see FAR 8.802(b)).
PART 809--CONTRACTOR QUALIFICATIONS
Subpart 809.1--Responsible Prospective Contractors
Sec.
809.104 Standards.
809.104-2 Special standards.
809.106 Preaward surveys.
809.106-1 Conditions for preaward surveys.
Subpart 809.2--Qualifications Requirements
809.201 Definitions.
809.202 Policy.
809.204 Responsibilities for establishment of a qualification
requirement.
809.206 Acquisitions subject to qualification requirements.
809.206-1 General.
809.270 Qualified products for convenience/labor-saving foods.
Subpart 809.4--Debarment, Suspension, and Ineligibility
809.400 Scope of subpart.
809.402 Policy.
809.404 Excluded Parties List System.
809.405 Effect of listing.
809.405-1 Continuation of current contracts.
809.405-2 Restrictions on subcontracting.
809.406 Debarment.
809.406-1 General.
809.406-3 Procedures.
809.406-4 Period of debarment.
809.407 Suspension.
809.407-1 General.
809.407-3 Procedures.
809.470 Fact-finding procedures.
Subpart 809.5--Organizational and Consultant Conflicts of Interest
809.503 Waiver.
809.504 Contracting officer responsibilities.
809.507 Solicitation provisions and contract clause.
809.507-1 Solicitation provisions.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 809.1--Responsible Prospective Contractors
809.104 Standards.
809.104-2 Special standards.
(a) For a pre-award survey prescribed by 809.106-1, a contracting
officer must develop special standards of sanitation applicable to the
acquisition of subsistence and services prescribed by 809.106-1(a).
(b) An appropriate specialist will assist the contracting officer
in
[[Page 2736]]
developing the special standards under paragraph (a) of this section.
809.106 Pre-award surveys.
809.106-1 Conditions for pre-award surveys.
(a) Except as provided in paragraphs (b) through (e) of this
section, a committee under the direction of the contracting officer and
composed of representatives of the medical service or using service
chiefs or designees appointed by the facility or VISN director will
conduct a pre-award on-site evaluation of the plant, personnel,
equipment and processes of the prospective contractor for contracts
covering the products and services of the following:
(1) Bakeries.
(2) Dairies.
(3) Ice cream plants.
(4) Laundry and dry cleaning activities.
(b) Before any inspection, the contracting officer will determine
whether another VA facility or another Federal agency has recently
inspected and approved the plant.
(1) The contracting officer will accept an approved inspection
report of another VA facility.
(2) If another Federal agency made a plant inspection not more than
6 months before the proposed VA contract period, the contracting
officer may accept an approved inspection report of that other Federal
agency as satisfactory evidence that the facilities of the bidder meet
the bid requirements.
(c) VA will not conduct a pre-award on-site evaluation of a dairy
plant when VA receives an acceptable bid from a supplier of dairy
products designated as No.1 in the Federal Specifications if the
following conditions are met:
(1) The supplier has received a pasteurized milk rating of 90
percent or more for the type of product being supplied, on the basis of
the U.S. Public Health Service milk ordinance and code.
(2) The rating is current (not over 2 years old) and has been
determined by a certified State milk sanitation rating officer in the
State of origin or by the Public Health Service. The contractor must
maintain the rating of 90 percent or more during the period of the
contract.
(3) The solicitation specifications must include the requirements
in paragraphs (c)(1) and (2) of this section.
(d) A dairy plant that does not meet paragraph (c) of this section
may offer only dairy products designated as No. 2 in the Federal
Specifications. VA will make an award to such a firm only after it
completes a pre-award on-site evaluation conducted under paragraph (a)
of this section.
(e) Before it makes an open market purchase of fresh bakery
products (such as pies, cakes, and cookies), VA will inspect and
evaluate the plant where these products are produced or prepared under
paragraph (a) of this section. VA will make an on-site evaluation at
least annually and record the results on VA Form 10-2079, Inspection
Report of Bakery.
Subpart 809.2--Qualifications Requirements
809.201 Definitions.
For the purposes of this subpart:
VA QPL means a VA Qualified Products List, a list of products
qualified by the VA under VA specifications, or purchase descriptions,
or commercial item descriptions.
VISN QPL means a VISN Qualified Products List, a list of products
qualified by a VISN under VA specifications, or purchase descriptions,
or commercial item descriptions.
809.202 Policy.
The HCA may sign a justification required by FAR 9.202(a)(1).
809.204 Responsibilities for establishment of a qualification
requirement.
(a) Under FAR Subpart 9.2, VA may create VA QPLs for use on
individual solicitations or on multiple solicitations issued by one or
more VA facilities.
(b) An HCA or designee must support the creation of a VA QPL using
one or more of the following justifications:
(1) The time required for testing the product after award would
unduly delay product delivery.
(2) The cost of repetitive product testing would be excessive.
(3) Testing the product would require purchasing an expensive or
complicated apparatus not commonly available.
(4) It is in the Government's interest to be assured before
contract award that the product is satisfactory for its intended use.
(5) Determining acceptability would require providing product
performance data to supplement technical requirements in the
specification.
(6) Conducting a test would result in substantial or repetitive
rejections.
(7) VA cannot economically develop clear, professional
specifications for the product performance, balance, design, or
construction, and professional judgment is required to determine
whether the product is acceptable under VA requirements.
(c) If VA plans to establish a VA QPL for any given product, the
contracting officer may limit known suppliers to suppliers whose
products are covered by a Federal Supply Schedule contract, as provided
at FAR Subpart 8.4.
(d) VA will pay the costs to inspect and test a product sample
submitted under this section.
(1) The product supplier must pay for the sample and its
transportation to the place of inspecting and testing.
(2) After inspection and testing, VA will return any product sample
to the supplier ``as is'' unless:
(i) The inspection or test destroys the sample; or
(ii) The supplier authorizes VA to retain or dispose of the sample.
(e) Once VA accepts a product for the VA QPL, VA may review the
product for compliance with the applicable specification at any time.
(1) Where there is a variance between a VA specification that was
the basis for the VA QPL and the product furnished by the supplier, the
supplier must furnish an item that conforms to the VA specification.
(2) If the supplier fails to or is unable to provide a product that
conforms to the applicable VA specification, the product will be
removed from the VA QPL.
(f) VA's acceptance of a product for listing on the VA QPL does
not:
(1) Guarantee that VA will accept the product in any future
purchase; or
(2) Constitute a waiver of the specifications as to acceptance,
inspection, testing, or other provisions of any future contract
involving the product.
809.206 Acquisitions subject to qualification requirements.
809.206-1 General.
The HCA may determine that an emergency exists, as provided in FAR
9.206-1(b).
809.270 Qualified products for convenience/labor-saving foods.
(a) Each VISN Nutrition and Food Service representative is
authorized to establish a common VISN QPL for convenience and labor-
saving foods for use at medical facilities within the representative's
VISN.
(1) The VISN Nutrition and Food Service representative must notify
the Director, Nutrition and Food Service, VA Central Office, of the
establishment or amendment of any VISN QPL.
(2) To avoid unnecessary duplication within a VISN, for medical
facilities using an applicable VISN QPL under paragraph (b) of this
section, the VISN Nutrition and Food Service representative must
coordinate and
[[Page 2737]]
consolidate test results and recommendations.
(b) Each medical facility may:
(1) Use its VISN QPL; and
(2) Test food of its choice, provided that the facility submits
test results to the VISN Nutrition and Food Service representative.
(c) The VISN representative must provide a copy of each approved
VISN QPL to the following:
(1) Each contracting office in the VISN.
(2) The Director, Nutrition and Food Service, VA Central Office.
(3) Upon request, the Office of Acquisition and Materiel
Management, VA Central Office.
Subpart 809.4--Debarment, Suspension, and Ineligibility
809.400 Scope of subpart.
This subpart supplements provisions of the FAR concerning
procedures and related actions for the debarment and suspension of
contractors.
809.402 Policy.
(a) When VA receives information that another agency is pursuing a
debarment or suspension identical to a VA action against the same
contractor, the Debarment and Suspension (D&S) Committee will
coordinate prospective action with the appropriate official of the
other agency to establish a lead agency.
(b) The D&S Committee will provide the designated lead agency with
any information relevant to the action for consideration in the
decision-making process.
(c) The D&S Committee will maintain close coordination with the
appropriate official through completion of a final debarment or
suspension decision.
809.404 Excluded Parties List System.
Acquisition Resources Service, Office of Acquisition and Materiel
Management, is responsible for the actions described in FAR 9.404(c).
809.405 Effect of listing.
The authority under FAR 9.405(a), 9.405(d)(2), and 9.405(d)(3) to
determine whether to solicit from, evaluate bids or proposals from, or
award contracts to contractors whose names appear on the Excluded
Parties List System is delegated to the SPE and is further delegated to
the DSPE.
809.405-1 Continuation of current contracts.
Authority to make the determinations under FAR 9.405-1 is delegated
to the SPE and is further delegated to the DSPE.
809.405-2 Restrictions on subcontracting.
When a subcontract is subject to Government consent, authority to
make the written determination required under FAR 9.405-2 consenting to
a contractor's use of a subcontractor who is debarred, suspended, or
proposed for debarment is delegated to the SPE and is further delegated
to the DSPE.
809.406 Debarment.
809.406-1 General.
(a) As provided in FAR 9.406-1(c), authority to determine whether
to continue business dealings between VA and a contractor debarred or
proposed for debarment is delegated to the SPE and is further delegated
to the DSPE.
(b) For the purposes of FAR 9.406-1, the DSPE is the debarring
official under the Federal Management Regulation at 41 CFR 102-117.295.
(c) Additional factors that a debarring official should consider
before arriving at a debarment decision include the following:
(1) Whether the contractor had a mechanism, such as a hotline, by
which employees could have reported suspected instances of improper
conduct, and instructions in place that encouraged employees to make
such reports.
(2) Whether the contractor conducted periodic reviews of company
business practices, procedures, policies, and internal controls for
compliance with standards of conduct and the special requirements of
Government contracting.
(3) Whether the contractor conducted internal and external audits
as appropriate.
(4) Whether the contractor timely reported to appropriate
Government officials any suspected or possible violations of law in
connection with Government contracts or any other irregularities in
connection with such contracts.
809.406-3 Procedures.
(a) Any individual may submit a recommendation to debar a
contractor to the DSPE. The recommendation to debar must be supported
with evidence of a cause for debarment listed in FAR 9.406-2. When the
DSPE receives a recommendation for debarment, he or she will refer the
matter to the D&S Committee. If the reporting individual is a VA
employee and the recommendation to debar is based on possible criminal
or fraudulent activities, the VA employee must report the circumstances
to the VA Office of Inspector General before making a recommendation to
the DSPE.
(b) When the D&S Committee finds evidence of a cause for debarment,
as listed in FAR 9.406-2, with or without a recommendation, it will
conduct a fact-finding and present facts to the debarring official.
(c) If the debarring official finds a basis for proposing a
contractor for debarment, the D&S Committee will prepare a notice of
proposed debarment under FAR 9.406-3(c) for the signature of the
debarring official. The signed notice of proposed debarment will be
sent to the last known address of the contractor, the contractor's
counsel, or agent for service of process, by certified mail, return
receipt requested. In the case of a business, the D&S Committee may
send the notice of proposed debarment to any partner, principal,
officer, director, owner or co-owner, or joint venture. The D&S
Committee concurrently must post notice of proposed debarment to the
General Services Administration Excluded Parties List System pending a
debarment decision.
(d) If VA does not receive a reply from the contractor within 45
calendar days of sending the notice of proposed debarment, the D&S
Committee will prepare a recommendation and refer the case to the
debarring official for a decision on whether or not to debar based on
the information available.
(e) If VA receives a reply from the contractor within 45 calendar
days of sending the notice of proposed debarment, the D&S Committee
must consider the information in the reply before the D&S Committee
makes its recommendation to the debarring official.
(f) The D&S Committee, upon the request of the contractor proposed
for debarment, must, as soon as practicable, allow the contractor an
opportunity to appear before the D&S Committee to present information
or argument in person or through a representative. The contractor may
supplement the oral presentation with written information and argument.
The proceeding will be conducted in an informal manner and without
requirement for a transcript. The D&S Committee shall prepare a report
of the proceeding for the debarring official.
(g) If the D&S Committee finds that the contractor's submission in
opposition to the debarment raises a genuine dispute over facts
material to the proposed debarment and the debarment action is not
based on a conviction or civil judgment, then the D&S Committee shall
submit to the debarring official the information establishing the
dispute of material facts. If the debarring official agrees that
[[Page 2738]]
there is a genuine dispute of material facts, the debarring official
shall refer the dispute to a designee for resolution pursuant to
809.470.
(h) If there are no disputes over material facts, the debarment
action is based on a conviction or civil judgment, or all disputes over
material facts have been resolved pursuant to 809.470, the debarring
official will make a decision on the basis of all information
available, including findings of facts and oral or written arguments
presented or submitted to the D&S Committee by the contractor. The D&S
Committee must update the status of the action on the General Services
Administration Excluded Parties List System.
809.406-4 Period of debarment.
(a) Except in an unusual circumstance, the period of debarment will
not exceed 3 years. The debarring official will base the period of
debarment on the circumstances surrounding the cause for debarment.
(b) The DSPE may remove a debarment, amend its scope, or reduce the
period of debarment based on a D&S Committee recommendation if:
(1) VA has debarred the contractor;
(2) The action is indicated after the DSPE reviews documentary
evidence submitted by or on behalf of the contractor setting forth the
appropriate grounds for granting relief. Appropriate grounds include
newly discovered material evidence, reversal of a conviction, bona fide
change of ownership or management, elimination of the cause for which
debarment was imposed, or any other appropriate grounds.
809.407 Suspension.
809.407-1 General.
(a) As provided in FAR 9.407-1(d), authority to determine whether
to continue business dealings between VA and a suspended contractor is
delegated to the SPE and is further delegated to the DSPE.
(b) For the purposes of FAR 9.407-1, the DSPE is the suspending
official under the Federal Management Regulation at 41 CFR 102-117.295.
809.407-3 Procedures.
(a) Any individual may submit a recommendation to suspend a
contractor to the DSPE. The recommendation to suspend must be supported
with evidence of a cause for suspension listed in FAR 9.407-2. When the
DSPE receives a recommendation for suspension, he or she will refer the
matter to the D&S Committee. If the reporting individual is a VA
employee and the recommendation to suspend is based on possible
criminal or fraudulent activities, the VA employee must report the
circumstances to the VA Office of Inspector General before making a
recommendation to the DSPE.
(b) When the D&S Committee finds evidence of a cause for
suspension, as listed in FAR 9.407-2, with or without a recommendation,
it will conduct a fact-finding and present facts and recommendations to
the suspending official.
(c) If the suspending official finds a basis for suspending a
contractor, the D&S Committee will prepare a notice of suspension under
FAR 9.407-3(c) for the signature of the suspending official. The signed
notice of suspension will be sent to the last known address of the
contractor, the contractor's counsel, or agent for service of process,
by certified mail, return receipt requested. In the case of a business,
the D&S Committee may send the notice of suspension to any partner,
principal, officer, director, owner or co-owner, or joint venture. The
D&S Committee concurrently must post notice of suspension to the
General Services Administration Excluded Parties List System pending
completion of investigation and any ensuing legal proceedings.
(d) If VA receives a reply from the contractor within 45 calendar
days of sending the notice of suspension, the D&S Committee must
consider the information in the reply before the Committee makes
further recommendations to the suspending official. The D&S Committee,
upon the request of a suspended contractor, must, as soon as
practicable, allow the contractor an opportunity to appear before the
D&S Committee to present information or argument in person or through a
representative. The contractor may supplement the oral presentation
with written information and argument. The proceeding will be conducted
in an informal manner and without requirement for a transcript. The D&S
Committee shall prepare a report of the proceeding for the suspending
official.
(e) In actions not based on an indictment, if the D&S Committee
finds that the contractor's submission in opposition to the suspension
raises a genuine dispute over facts material to the suspension, the D&S
Committee shall submit to the suspending official the information
establishing the dispute of material facts. However, the D&S Committee
must first coordinate any further proceeding regarding the facts in
dispute with the Department of Justice or with a State prosecuting
authority in a case involving a State jurisdiction. VA will take no
further action to determine disputed material facts pursuant to this
section or 809.470 if the Department of Justice or a State prosecuting
authority advises VA that additional proceedings to make such a
determination would prejudice Federal or State legal proceedings.
(f) If the suspending official agrees that there is a genuine
dispute of material facts, the suspending official shall refer the
dispute to the designee for resolution pursuant to 809.470.
809.470 Fact-finding procedures.
The provisions of this section constitute the procedures to be used
to resolve genuine disputes of fact pursuant to 809.406-3 and 809.407-3
of this chapter. The DSPE shall appoint a designee to conduct the fact-
finding. OGC shall represent VA at any fact-finding hearing and may
present witnesses for VA and question any witnesses presented by the
contractor. The hearings shall be conducted in Washington, DC. The
proceedings before the fact-finder will be limited to a finding of the
facts in dispute, as determined by the debarring or suspending
official. The fact-finder will establish the date for the fact-finding
hearing, normally to be held within 45 working days of the submission
of the dispute.
(a) The Government's representative and the contractor will have an
opportunity to present evidence relevant to the facts at issue. The
contractor may appear in person or through a representative at the
fact-finding hearing. The contractor may submit documentary evidence,
present witnesses, and confront any person the agency presents.
(b) Witnesses may testify in person. Witnesses will be reminded of
the official nature of the proceedings and that any false testimony
given is subject to criminal prosecution. Witnesses are subject to
cross-examination. Hearsay evidence may be presented and will be given
appropriate weight by the fact-finder.
(c) The proceedings shall be transcribed and a copy of the
transcript shall be made available at cost to the contractor upon
request, unless the contractor and the fact-finder, by mutual
agreement, waive the requirement for a transcript.
(d) The fact-finder shall determine the disputed fact(s) by a
preponderance of the evidence. As required by FAR 9.406-3(d)(2)(i) and
9.407-3(d)(2)(i), written findings of fact shall be prepared by the
fact-finder. A copy of the findings of fact shall be provided to the
debarring or suspending official, the
[[Page 2739]]
Government's representative, and the contractor.
Subpart 809.5--Organizational and Consultant Conflicts of Interest
809.503 Waiver.
The HCA is delegated authority to waive any general rule or
procedure of FAR Subpart 9.5. As provided at FAR 9.503, this authority
may not be redelegated.
809.504 Contracting officer responsibilities.
(a) A contracting officer must determine whether awarding a
contract will result in an actual or potential conflict of interest for
the contractor.
(1) The contracting officer will make a conflict of interest
determination after reviewing information submitted by offerors,
evaluating information gathered under FAR 9.506, and exercising his or
her own judgment.
(2) In evaluating possible organizational conflicts of interest,
the contracting officer may obtain the advice of legal counsel and the
assistance of technical specialists.
(b) If the contracting officer determines that there is no way to
avoid or mitigate an organizational conflict of interest arising from a
contract award, the contracting officer may disqualify the offeror from
award under FAR 9.504(e).
(c) Even if awarding a contract will result in an organizational
conflict of interest, the contracting officer may request a waiver from
his or her HCA if awarding the contract is in the best interests of the
Government.
(1) Before granting a waiver request under this paragraph, the HCA
must obtain the concurrence of OGC.
(2) If the HCA grants a waiver request, the contracting officer may
set contract terms and conditions to reduce any organizational conflict
of interest to the greatest extent possible.
(d) In any solicitation for the services addressed at FAR 9.502,
the contracting officer must require that each offeror submits a
statement with its offer disclosing all facts relevant to an existing
or potential organizational conflict of interest involving the
contractor or any subcontractor during the life of the contract (see
809.507-1(b) and 852.209-70).
809.507 Solicitation provisions and contract clause.
809.507-1 Solicitation provisions.
(a) While conflicts of interest may not presently exist, award of
certain types of contracts may create potential future organizational
conflicts of interest (see FAR 9.508 for examples). If a solicitation
may create a potential future organizational conflict of interest, the
contracting officer shall insert a provision in the solicitation
imposing an appropriate restraint on the contractor's eligibility for
award of contracts in the future. Under FAR 9.507-1, the restraint must
be appropriate to the nature of the conflict and may exclude the
contractor from award of one or more contracts in the future.
(b) The clause at 852.209-70, Organizational conflicts of interest,
must be included in any solicitation for the services addressed in FAR
9.502.
PART 811--DESCRIBING AGENCY NEEDS
Subpart 811.0--Definitions
Sec.
811.001 Definitions.
Subpart 811.1--Selecting and Developing Requirements Documents
811.103 Market acceptance.
811.103-70 Technical industry standards.
811.104 Use of brand name or equal purchase descriptions.
811.104-70 Brand name or equal purchase descriptions.
811.104-71 Purchase description clauses.
811.104-72 Brand name or equal component parts.
811.104-73 Bid samples.
811.104-74 Bid evaluation and award.
811.104-75 Procedure for negotiated procurements.
811.105 Items peculiar to one manufacturer.
811.107 Contract clauses.
Subpart 811.2--Using and Maintaining Requirements Documents
811.202 Maintenance of standardization documents.
811.204 Contract clause.
Subpart 811.4--Delivery or Performance Schedules
811.404 Contract clause.
Subpart 811.5--Liquidated Damages
811.501 Policy.
811.503 Contract clause.
Subpart 811.6--Priorities and Allocations
811.602 General.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
811.001 Definitions.
For the purposes of this part:
Brand name product means a commercial product described by brand
name and make or model number or other appropriate nomenclature by
which the product is offered for sale to the public by the particular
manufacturer, producer or distributor.
Salient characteristics means those particular characteristics that
specifically describe the essential physical and functional features of
the material or service required. They are features that are identified
in the specifications as a mandatory requirement that a proposed
``equal'' product or material must possess for the bid to be considered
responsive.
Subpart 811.1--Selecting and Developing Requirements Documents
811.103 Market acceptance.
811.103-70 Technical industry standards.
Where items are required to conform to technical industry
standards, such as those adopted by: Underwriters Laboratories, Inc.;
Factory Mutual Laboratories; American Gas Association; American Society
of Mechanical Engineers; National Electrical Manufacturers Association;
American Society of Heating, Refrigerating and Air-Conditioning
Engineers; or similar organizations, where such standards are generally
recognized and accepted in the industry involved, the invitation for
bids, request for proposals or request for quotations will so state. In
no instance, where there is a multiple choice of laboratories, shall
the invitation for bid, request for proposal, or request for quotation
indicate that the label or certificate of only one such laboratory is
acceptable. The contracting officer shall include the provision at
852.211-72, Technical industry standards, in solicitations requiring
conformance to technical industry standards unless comparable
provisions are contained in the item specification.
811.104 Use of brand name or equal purchase descriptions.
811.104-70 Brand name or equal purchase descriptions.
(a) The specification writer may use purchase descriptions that
contain references to one or more brand name products only in
accordance with 811.104-71 through 811.104-75.
(b) Purchase descriptions that contain references to one or more
brand name products must be followed by the words ``or equal,'' except
when the acquisition of a specific brand name is fully justified under
FAR Subpart 6.3 and 806.3. If more than one brand name is acceptable,
the contracting officer should list the known acceptable brand name
products in the solicitation.
(c) Where a ``brand name or equal'' purchase description is used,
the contracting officer must give bidders an opportunity to offer
products other than those specifically referenced by brand
[[Page 2740]]
name. Following bid opening or receipt of offers, the contracting
officer must determine if non-``brand name'' substitute products fully
meet the salient characteristics listed in the solicitation.
(d) When using a ``brand name or equal'' purchase description, the
specification writer must set forth those salient physical, functional,
or other characteristics of the referenced products that are essential
to the minimum needs of the Government. For example, when
interchangeability of parts is required, the specification writer must
specify this requirement. The purchase description must contain the
following information to the extent available:
(1) Complete common generic identification of the item required.
(2) Applicable model, make, or catalog number for each brand name
product referenced and identity of the commercial catalog in which it
appears.
(3) Name of manufacturer, producer, or distributor of each brand
name product referenced (and address if not well known).
(4) Any other information necessary to describe the item required.
(e) When necessary to adequately describe the item required, the
contracting officer may use an applicable commercial catalog
description or pertinent extract if the description is identified in
the solicitation as being that of the particular named manufacturer,
producer, or distributor. The contracting officer must insure that a
copy of any catalog referenced (except a parts catalog) is available on
request for review by bidders at the purchasing office.
(f) Except as noted in paragraph (d) of this section, the
specification writer must not include in a purchase description either
minimum or maximum restrictive dimensions, weights, materials, or other
salient characteristics that are unique to a brand name product or that
would tend to eliminate competition or other products that are only
marginally outside the restrictions. However, the specification writer
may include in a purchase description restrictive dimensions, weights,
materials, or other salient characteristic if:
(1) The user determines in writing that the restrictions are
essential to the Government's requirements;
(2) The specification writer includes the brand name of the product
in the purchase description; and,
(3) The contracting officer makes all other determinations required
by 811.105.
(g) The contracting officer must include in the contract file, as
appropriate, written justifications for using the ``brand name or
equal'' description, the contracting officer's determinations, and
bidder submissions.
811.104-71 Purchase description clauses.
(a) When a solicitation uses ``brand name or equal'' purchase
descriptions, the contracting officer must include in the solicitation
the clause at 852.211-73, Brand name or equal, and the provision set
forth at FAR 52.214-21, Descriptive Literature. The contracting officer
must review the requirements at FAR 14.202-5 when using the descriptive
literature provision.
(b) When a ``brand name or equal'' purchase description is included
in an invitation for bids, the contracting officer shall insert the
following after each item so described in the solicitation, for
completion by the bidder:
Bidding on:
Manufacturer name------------------------------------------------------
Brand------------------------------------------------------------------
No.--------------------------------------------------------------------
811.104-72 Limited application of brand name or equal.
If the contracting officer determines that the clause at 852.211-
73, Brand name or equal, applies to only certain line items of a
solicitation, the requirements of 811.104-71(b) apply to those line
items and the contracting officer must include a statement in the
solicitation as follows:
The clause entitled ``Brand name or equal'' applies only to the
following line items: [List the line items to which the clause
applies]
811.104-73 Bid samples.
(a) When a solicitation contains ``brand name or equal'' purchase
descriptions, the contracting officer must not require a bidder who
offers brand name products, including component parts, referenced in
the descriptions to furnish bid samples of the referenced brand name
products.
(b) A solicitation may require the submission of bid samples in the
case of a bidder offering ``or equal'' products. If bid samples are
required, the contracting officer must include in the solicitation the
provision set forth at FAR 52.214-20, Bid Samples.
(c) A bidder must furnish all descriptive literature in accordance
with and for the purpose set forth in the ``Brand Name or Equal''
clause, 852.211-73(c)(1) and (c)(2), even though bid samples may not be
required.
811.104-74 Bid evaluation and award.
(a) A bid offering products that differ from brand name products
referenced in a ``brand name or equal'' purchase description must be
considered for award if the contracting officer determines in
accordance with the terms of the clause at 852.211-73, Brand name or
equal, that the offered products are clearly identified in the bid and
are equal in all material respects to the products specified.
(b) In award documents, the contracting officer must include, or
incorporate by reference, an identification of the specific products
that the contractor is to furnish. The identification must include any
brand name and make or model number, descriptive material, and any
modifications of brand name products specified in the bid. This
requirement also applies when the descriptions of the end items contain
``brand name or equal'' purchase descriptions of component parts or of
accessories related to the end item, and the clause at 852.211-73,
Brand name or equal, was applied to the component parts or accessories
(see 811.104-72).
811.104-75 Procedure for negotiated procurements.
(a) The specification writer and contracting officer must use the
policies and procedures prescribed in 811.104-70 through 811.104-74 as
a guide in developing adequate purchase descriptions for negotiated
procurements.
(b) The contracting officer may adapt the clause at 852.211-73,
Brand name or equal, for use in negotiated procurements. When use of
the clause is not practical (as may be the case in unusual and
compelling urgency purchases), the contracting officer must inform
suppliers that proposals offering products different from the products
referenced by brand name will be considered if the contracting officer
determines that the offered products are equal in all material respects
to the products referenced. The contracting officer must place
decisions under this paragraph in writing for the contract file, as
appropriate.
811.105 Items peculiar to one manufacturer.
(a) Except as provided in paragraph (b) of this section, the
specification writer must write specifications in accordance with FAR
11.002.
(b)(1) When the specification writer determines that a particular
physical or functional characteristic of only one product will meet the
minimum requirements of VA (see FAR 11.105) or
[[Page 2741]]
that a ``brand name or equal'' purchase description must be used (see
FAR 11.104), the specification writer must identify the item(s) for the
contracting officer and do one of the following:
(i) Provide a full written justification of the reason the
particular characteristic is essential to the Government's
requirements.
(ii) Explain why the ``brand name or equal'' purchase description
is necessary.
(2) The contracting officer makes the final determination whether
restrictive specifications or ``brand name or equal'' purchase
descriptions will be included in the solicitation.
811.107 Contract clauses.
(a) Insert the clause at 852.211-70, Service data manuals,
paragraph (a), in solicitations and requests for proposals for
technical medical and other technical equipment and devices issued by a
field facility unless the facility Chief, Engineering Service,
indicates that the service data manuals are not needed. The purpose of
the clause is to require the manufacturer to provide VA a manual or
groups of manuals that will allow for the in-house repair of the
equipment purchased.
(b) Insert the clause at 852.211-70, Service data manuals,
paragraph (b), in solicitations and requests for proposals for
mechanical equipment (other than technical medical and other technical
equipment and devices) issued by a field station.
Subpart 811.2--Using and Maintaining Requirements Documents
811.202 Maintenance of standardization documents.
(a) Military and departmental specifications. Contracting officers
may, when it is advantageous to VA, use these specifications when
procuring supplies and equipment costing less than the simplified
acquisition threshold. When purchasing items of perishable subsistence,
contracting officers may take into account only those exemptions set
forth in paragraphs (b)(2) and (b)(3) of this section.
(b) Nutrition and Food Service specifications. (1) VA has adopted
for use in the procurement of packinghouse products the purchase
descriptions and specifications set forth in the Institutional Meat
Purchase Specifications (IMPS) and the IMPS General Requirements, which
have been developed by the U.S. Department of Agriculture. Purchase
descriptions and specifications for dairy products, poultry, eggs,
fresh and frozen fruits and vegetables, as well as certain packinghouse
products selected from the IMPS especially for VA use, are contained in
Part IV of the Federal Supply Catalog, Stock List, FSC Group 89,
Subsistence, Publication No. C8900-SL.
(2) The military specifications for meat and meat products
contained in Part IV of the Federal Supply Catalog, Stock List, FSC
Group 89, Subsistence, must be used by VA only when purchasing such
items of subsistence from the Defense Logistics Agency (DLA). Military
specifications for poultry, eggs, and egg products contained in Part IV
of the Federal Supply Catalog, Stock List, FSC Group 89, Subsistence,
may be used when purchasing either from DLA or from local dealers.
(3) Except as authorized in Part 846, a contracting officer must
not deviate from the specifications contained in Part IV of the Federal
Supply Catalog, Stock List, FSC Group 89, Subsistence, and the IMPS
without prior approval from the DSPE.
(4) Items of meat, cured pork and poultry purchased under the
Subsistence Prime Vendor national contract or other local procurement
sources should be purchased via Commercial Item Descriptions (CID) that
require all products meet USDA Grading standards and/or the IMPS as
applicable.
(c) Department of Veterans Affairs specifications. (1) The
Director, Publications Staff, is responsible for developing,
publishing, and distributing VA specifications covering printing and
binding.
(2) VA specifications, as they are revised, are placed in stock in
the VA Forms and Publications Depot. The contracting officer may
requisition facility requirements for these specifications from that
source.
(d) Government paper specification standards. (1) Invitations for
bids, requests for proposals, purchase orders, or other procurement
instruments covering the purchase of paper stocks to be used in
duplicating or printing, or which specify the paper stocks to be used
in buying printing, binding, or duplicating, must require that the
paper stocks be in accordance with the Government Paper Specification
Standards issued by the Congressional Joint Committee on Printing.
(2) All binding or rebinding of books, magazines, pamphlets,
newspapers, slip cases, and boxes must be procured in accordance with
Government Printing Office (GPO) specifications and must be procured
from the servicing GPO Regional Printing Procurement Office or, when
appropriate, from commercial sources.
(3) There are three types of binding/rebinding: Class A (hard
cover); Perfect (glued); and Lumbinding (sewn). The most suitable type
of binding must be procured to satisfy the requirements, based upon the
intended use of the bound material.
811.204 Contract clause.
Insert the clause at 852.211-75, Product specifications when
product specifications are cited in an invitation for bids or a request
for proposals.
Subpart 811.4--Delivery or Performance Schedules
811.404 Contract clause.
When delivery is required by or on a particular date for f.o.b.
destination contracts, the contracting officer must add a statement
following the Time of Delivery clause in FAR 52.211-8 that the delivery
date specified is the date by which the shipment is to be delivered,
not the shipping date. In f.o.b. origin contracts, the contracting
officer must add a statement following this clause that the date
specified is the date shipment is to be accepted by the carrier.
Subpart 811.5--Liquidated Damages
811.501 Policy.
The contracting officer must not routinely include a liquidated
damages provision in supply or construction contracts, regardless of
dollar amount. The decision to include liquidated damages provisions
must conform to the criteria in FAR 11.501. In making this decision,
the contracting officer must consider whether the necessity for timely
delivery or performance as required in the contract schedule is so
critical that a probable increase in contract price is justified. The
contracting officer must not use a liquidated damages provision for any
of the following reasons:
(a) As insurance against selection of a non-responsible bidder.
(b) As a substitute for efficient contract administration.
(c) As a penalty for failure to perform on time.
811.503 Contract clause.
When the contracting officer determines that the Liquidated damages
clause prescribed in FAR 52.211-11 or 52.211-12 must be used and where
partial performance by the contractor may be to the advantage of the
Government, the contracting officer must include the clause in 852.211-
74, Liquidated damages, in the contract.
[[Page 2742]]
Subpart 811.6--Priorities and Allocations
811.602 General.
(a) Priorities and allocations of critical materials are controlled
by the Department of Commerce. Essentially, priorities and allocations
of critical materials are restricted to projects having a direct
connection with supporting current defense needs. VA is not authorized
to assign a priority rating to its purchase orders or contracts
involving the acquisition or use of critical materials.
(b) When it has been technically established that it is not
feasible to use a substitute material, the Department of Commerce has
agreed to assist the VA in obtaining critical materials for maintenance
and repair projects. The Department of Commerce will also, when
possible, render assistance in connection with the purchase of new
items, which may be in short supply because of their use in connection
with the defense effort.
(c) A contracting officer having problems acquiring critical
materials must ascertain all the facts necessary to enable the
Department of Commerce to render assistance to VA in acquiring these
materials. The contracting officer must submit a request for assistance
to the DSPE containing the following information:
(1) A description of the maintenance and repair project or the new
item.
(2) The critical material and the amount required.
(3) The contractor's sources of supply, including any addresses. If
the source is other than the manufacturer or producer, also list the
name and address of the manufacturer or producer.
(4) The VA contract or purchase order number.
(5) The contractor's purchase order number, if known, and the
delivery time requirement as stated in the solicitation or offer.
(6) The additional time the contractor claims is necessary to
deliver the materials if priority assistance is not provided.
(7) The nature and extent of the emergency that will be generated
at the station, such as any of the following:
(i) Damage to the physical plant.
(ii) Impairment of the patient care program.
(iii) Creation of safety hazards.
(iv) Any other pertinent condition that could result because of
failure to secure assistance in obtaining the critical materials.
(8) If applicable, a statement that the item required is for use in
a construction contract that was authorized by the Director, Office of
Construction and Facilities Management, to be awarded and administered
by the facility contracting officer.
PART 812--ACQUISITION OF COMMERCIAL ITEMS
Subpart 812.1--Acquisition of Commercial Items--General
Sec.
812.102 Applicability.
Subpart 812.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
812.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
812.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
Subpart 812.1--Acquisition of Commercial Items--General
812.102 Applicability.
(a) This part shall be used for the acquisition of supplies and
services that meet the definition of commercial items at FAR 2.101.
(b) Contracting officers shall use the policies in this part in
conjunction with the policies and procedures for the solicitation,
evaluation, and award prescribed in Parts 813, Simplified Acquisition
Procedures, 814, Sealed Bidding, and 815, Contracting by Negotiation,
as appropriate for the particular acquisition.
(c) Contracts for the acquisition of commercial items are subject
to the policies of other parts of this chapter. When a policy in
another part of this chapter differs from a policy in this part, this
Part 812 applies to the acquisition of commercial items.
Subpart 812.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
812.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(a) Regardless of provisions in other parts of the VAAR,
contracting officers may use, as appropriate, only those provisions and
clauses referred to in this part when acquiring commercial items.
(b) Contracting officers may use the provisions and clauses in the
following VAAR sections, as appropriate and in accordance with the
prescriptions for the provisions and clauses, in requests for
quotations, solicitations, and contracts:
(1) 852.203-70, Commercial advertising.
(2) 852.203-71, Display of Department of Veterans Affairs Hotline
poster.
(3) 852.207-70, Report of employment under commercial activities.
(4) 852.209-70, Organizational conflicts of interest.
(5) 852.211-71, Special notice.
(6) 852.211-72, Technical industry standards.
(7) 852.211-73, Brand name or equal.
(8) 852.211-75, Product specifications.
(9) 852.214-70, Caution to bidders--bid envelopes.
(10) 852.214-71, Restrictions on alternate item(s).
(11) 852.214-72, Alternate item(s).
(12) 852.214-73, Alternate packaging and packing.
(13) 852.214-74, Bid samples.
(14) 852.216-70, Estimated quantities.
(15) 852.228-71, Indemnification and insurance.
(16) 852.229-70, Sales and use taxes.
(17) 852.233-70, Protest content/alternative dispute resolution.
(18) 852.233-71, Alternate protest procedure.
(19) 852.237-7, Indemnification and medical liability insurance.
(20) 852.237-70, Contractor responsibilities.
(21) 852.246-70, Guarantee.
(22) 852.246-71, Inspection.
(23) 852.246-72, Frozen processed foods.
(24) 852.252-70, Solicitation provisions or clauses incorporated by
reference.
(25) 852.270-1, Representatives of contracting officers.
(26) 852.270-2, Bread and bakery products--quantities.
(27) 852.270-3, Purchase of shellfish.
(28) 852.271-72, Time spent by counselee in counseling process.
(29) 852.271-73, Use and publication of counseling results.
(30) 852.271-74, Inspection.
(31) 852.271-75, Extension of contract period.
(c) When appropriate in accordance with the prescriptions for the
clauses, the contracting officer may use the clauses in the following
VAAR sections in requests for quotations, solicitations, and contracts
for the acquisition of commercial items if the contracting officer
determines that the use is consistent with customary commercial
practices:
(1) 852.211-70, Service data manuals.
(2) 852.211-74, Liquidated damages.
(d) All requests for quotations, solicitations, and contracts for
commercial item services to be provided to beneficiaries must include
the clause
[[Page 2743]]
at 852.271-70, Nondiscrimination in services provided to beneficiaries.
(e) Micro-purchases that use the procedures of this part in
conjunction with part 813 do not require clauses unless the contracting
officer determines that the use of clauses serves the Government's best
interest.
(f) When soliciting for health care resources that are commercial
services or the use of medical equipment or space under the authority
of part 873 and 38 U.S.C. 8151-8153, the provisions and clauses in the
following VAAR sections may be used in accordance with the
prescriptions contained therein or elsewhere in the VAAR:
(1) 852.273-70, Late offers.
(2) 852.273-71, Alternative negotiation techniques.
(3) 852.273-72, Alternative evaluation.
(4) 852.273-73, Evaluation--health-care resources.
(5) 852.273-74, Award without exchanges.
(38 U.S.C. 8151-8153)
812.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
(a) Contracting officers may tailor solicitations to be
inconsistent with customary commercial practice if they prepare and
obtain approval of a waiver under paragraph (c) of this section.
(b) The contracting officer must prepare the waiver in accordance
with FAR 12.302(c). The waiver is subject to the tailoring prohibitions
in FAR 12.302(b)(1) through 12.302(b)(6).
(c) The contracting officer must obtain approval for waivers from
the following:
(1) The Chief, Acquisition Assistance Division, for individual
contracts.
(2) The Chief, Acquisition Program Management Division, for a class
of contracts.
(d) Contracting officers must submit waiver requests no later than
the solicitation issue date.
(e) Contracting officers must retain approved requests in the
contract file.
SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES
PART 813--SIMPLIFIED ACQUISITION PROCEDURES
Subpart 813.1--Procedures
Sec.
813.106 Soliciting competition, evaluation of quotations or offers,
award and documentation.
813.106-3 Award and documentation.
813.106-70 Oral purchase orders.
Subpart 813.3--Simplified Acquisition Methods
813.302 Purchase orders.
813.302-5 Clauses.
813.307 Forms.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 813.1--Procedures
813.106 Soliciting competition, evaluation of quotations or offers,
award and documentation.
813.106-3 Award and documentation.
The contracting officer may record a quotation on an Abstract of
Offers (SF 1409 or 1419), the purchase request if space permits, or
other supplemental sheet or form, such as VA Form 10-2237b, Request for
Dietetic Supplies.
813.106-70 Oral purchase orders.
When advantageous to VA, the contracting officer may use an oral
purchase order for transactions not in excess of $3,000. This
limitation does not apply to delivery orders against existing
contracts, e.g., delivery orders against Federal Supply Schedule
contracts. The contracting officer must assign a purchase order number
to the transaction. A copy of any electronically generated purchase
order may be used as a property voucher and receiving report to
document receipt.
Subpart 813.3--Simplified Acquisition Methods
813.302 Purchase orders.
813.302-5 Clauses.
When using the VA Form 90-2138 or 90-2138-ADP for maintenance
contracts involving services performed on Government property that have
the potential for property damage and liability claims, the contracting
officer shall insert in the purchase order the Contractor's
Responsibilities clause found at 852.237-70. Applicable maintenance
contracts include, but are not limited to, window washing, pest
control, and elevator maintenance.
813.307 Forms.
(a) The following forms provide a purchase or delivery order,
vendor's invoice, and receiving report:
(1) VA Form 90-2138, Order for Supplies or Services.
(2) VA Form 90-2139, Order for Supplies or Services (Continuation).
(3) VA Form 90-2138-ADP, Purchase Order for Supplies or Services.
(4) VA Form 2139-ADP, Order for Supplies and Services
(Continuation).
(b) The contracting officer may use the forms specified in
paragraphs (a)(1) through (a)(4) of this section instead of OF 347,
Order for Supplies or Services, OF 348, Order for Supplies or Services
Schedule--Continuation, and SF 1449, Solicitation/Contract/Order for
Commercial Items.
(c) The contracting officer or other properly delegated official
(see 801.670-3) may use the following order forms when ordering the
indicated medical, dental, and ancillary services totaling up to
$10,000 per authorization when such services are not available under
existing contracts:
(1) VA Form 10-7078, Authorization and Invoice for Medical and
Hospital Services.
(2) VA Form 10-7079, Request for Outpatient Medical Services.
(3) VA Form 10-2570d, Dental Record Authorization and Invoice for
Outpatient Service.
(d) In authorizing patient travel as set forth in VA manual MP-1,
Part II, Chapter 3, the contracting officer or other properly delegated
official (see 801.670-3) may use VA Form 10-2511, Authority and Invoice
for Travel by Ambulance or Other Hired Vehicle, as provided by that
manual.
(e) The contracting officer must use SF 182, Request,
Authorization, Agreement, and Certification of Training, for
procurement of training.
(f) The contracting officer must use VA Form 10-2421, Prosthetics
Authorization for Items or Services, for indicated services not in
excess of $300.
PART 814--SEALED BIDDING
Subpart 814.1--Use of Sealed Bidding
Sec.
814.104 Types of contracts.
814.104-70 Fixed-price contracts with escalation.
Subpart 814.2--Solicitation of Bids
814.201 Preparation of invitations for bids.
814.201-6 Solicitation provisions.
814.203 Methods of soliciting bids.
814.203-1 Transmittal to prospective bidders.
814.204 Records of invitations for bids and records of bids.
814.208 Amendment of invitation for bids.
Subpart 814.3--Submission of Bids
814.301 Responsiveness of bids.
814.302 Bid submission.
814.304 Submission, modification, and withdrawal of bids.
Subpart 814.4--Opening of Bids and Award of Contract
814.401 Receipt and safeguarding of bids.
814.402 Opening of bids.
814.403 Recording of bids.
814.404 Rejection of bids.
814.404-1 Cancellation of invitations after opening.
814.404-2 Rejection of individual bids.
814.404-70 Questions involving the responsiveness of a bid.
814.407 Mistakes in bids.
814.407-3 Other mistakes disclosed before award.
[[Page 2744]]
814.407-4 Mistakes after award.
814.408 Award.
814.408-70 Award when only one bid is received.
814.408-71 Recommendation for award (construction).
814.409 Information to bidders.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 814.1--Use of Sealed Bidding
814.104 Types of contracts.
814.104-70 Fixed-price contracts with escalation.
When fixed price contracts with escalation are authorized under
816.102(a), a contracting officer must comply with FAR 16.203-1 through
16.203-4.
Subpart 814.2--Solicitation of Bids
814.201 Preparation of invitations for bids.
(a) An invitation for bids for supplies, equipment, and services
must be serially numbered at the time of issue. Numbers assigned
locally must consist of the facility or VA National Acquisition Center
division number, the serial number of the invitation, and the fiscal
year in which the VA facility issues the invitation, e.g., 533-24-07
for the 24th invitation issued by VA facility 533 in Fiscal Year 2007.
A series beginning with the number 1 must be started each fiscal year.
Numbers assigned from a national register may be sequential, without
regard to year, and use whatever numbering system assigned by the
national system or VA's Electronic Contract Management System (eCMS).
VHA shall use eCMS for all solicitation numbering.
(1) An invitation for bid for supplies, equipment, and services
that is numbered locally must be numbered in the series of the year in
which it is issued, will be accepted, and will become a contract in the
same fiscal year but, because of procurement lead time, will not be
performed until the next fiscal year.
(2) An invitation for bid that is numbered locally must be numbered
in the next fiscal year series if it is issued in one fiscal year but
the contract will become effective and will be performed only in the
next fiscal year.
(b) An invitation for a construction contract must bear the
applicable invitation for bid number and the project number, if
assigned.
(c) An invitation for bid containing a summary bid request must
include the following statement:
``The award will be made on either an individual item basis or
summary bid basis, whichever results in the lowest cost to the
Government. Therefore, to assure proper evaluation of all bids, a
bidder quoting a summary bid price must also quote a price on each
individual item included in the summary bid price.''
(d) When a contracting officer determines that it will be to the
Government's advantage to make an award by group or groups of items,
the contracting officer must include a provision for the award by group
or groups of items in the invitation for bids. This may apply when the
items in the group or groups are readily available from sources to be
solicited; and one of the following apply:
(1) It is desirable to award a minimum number of contracts.
(2) Furniture or fixtures are required for a single project and
uniformity of design is desirable.
(3) The articles required will be assembled and used as a unit.
(e) A solicitation for a construction contract must contain a
statement on the order of priority in which VA will award any
alternative bid items, based on the relative importance of the items,
VA's cost estimate, and the amount of funds available, when the
following apply:
(1) VA intends to make a single aggregate award for all items in
the solicitation within certain fiscal limitations.
(2) The solicitation asks for prices on an item and alternate item
basis.
(f) A bid item schedule in a solicitation issued in compliance with
paragraph (e) of this section should be structured substantially as
follows:
A single award will be made on Item No. 1, but in the event the
offer exceeds the funds available, a single award will be made on
Item No. 2 or Item No. 3, in that order, based on available funding.
Offerors should quote a price on each item listed.
Item No. 1--Furnish all labor, material, equipment, etc., to
paint Buildings No. 1, 2, and 3: $----.
Alternate items in order of priority:
Item No. 2--Furnish all labor, material, equipment, etc., to
paint Building Nos. 1 and 2: $----.
Item No. 3--Furnish all labor, material, equipment, etc., to
paint Building No. 1: ----.
814.201-6 Solicitation provisions.
(a) The contracting officer must place the provision entitled
``Caution to Bidders-Bid Envelopes,'' as set forth in 852.214-70, in
all invitations for bids where bid submissions are by other than
electronic means.
(b) In an invitation for bid for supplies, equipment, or services
(other than construction), the contracting officer must define the
extent to which VA will authorize and consider alternate bids. VA will
consider for acceptance an alternate specified on construction projects
only as a part of the basic item.
(1) When VA will consider an alternate item only if no bids or
insufficient bids are received on an item desired, the contracting
officer must include the provision set forth in 852.214-71,
Restrictions on alternate item(s), in the invitation.
(2) When VA will consider an alternate item on an equal basis with
the item specified, the contracting officer must include the provision
set forth in 852.214-72, Alternate items, in the invitation.
(3) In addition to the provision referenced in paragraph (b)(1) or
(2) of this section, the contracting officer must include the provision
set forth in 852.214-73, Alternate packaging and packing, in the
invitation when bids will be allowed on different packaging, unit
designation, etc.
(c) When the contracting officer determines that samples are
necessary to the proper awarding of a contract, the contracting officer
must include the provision set forth in 852.214-74, Bid samples, in the
solicitation, along with the provision in FAR 52.214-20, Bid samples.
814.203 Methods of soliciting bids.
814.203-1 Transmittal to prospective bidders.
The contracting officer should include either a bid envelope or OF
17, Sealed Bid Label, with each invitation for bids furnished by mail
or hand delivered to prospective bidders.
814.204 Records of invitations for bids and records of bids.
(a) The issuing office must establish and maintain a single
register on a fiscal year basis for all solicitations. For each
invitation to bid or request for proposal, the register must include
the following:
(1) Bid or proposal number.
(2) Date of issue.
(3) Date of opening.
(4) Commodity or service involved.
(5) Disposition (i.e., contract number or purchase order number or,
when applicable, no award).
(b) Maintenance of the contract file prescribed by Part 804 and
retention of canceled Invitation for Bid files will fulfill the
requirements set forth in FAR 14.204(b).
814.208 Amendment of invitation for bids.
The contracting officer must send amendments to holders of drawings
and specifications by certified mail, return receipt requested, or any
other method that provides evidence of receipt. The
[[Page 2745]]
contracting officer may send amendments by telegram, facsimile, or
other method of rapid delivery that provides evidence of receipt, if
time does not permit mailing.
Subpart 814.3--Submission of Bids
814.301 Responsiveness of bids.
Where a contracting officer cannot administratively determine, in
accordance with FAR 14.301, the timeliness of the submission of a bid,
modification, or withdrawal, the contracting officer must submit the
matter through the DSPE to the Comptroller General for a decision. The
submission must include copies of all pertinent papers.
814.302 Bid submission.
A bid hand-carried by the bidder or his agent will be considered
late unless delivered to the addressee designated in the bid invitation
before the time set for opening.
814.304 Submission, modification, and withdrawal of bids.
(a) A notification to late bidders must specify the final date by
which VA must receive evidence. This date must be within the time
allowed by the apparent low bidder for acceptance of the low bidder's
bid.
(b) All bids received by mail or delivered in person by the bidder
(or telegram where authorized) must be time and date stamped
immediately upon receipt at the VA facility mail room and in the office
of the addressee designated in the invitation.
Subpart 814.4--Opening of Bids and Award of Contract
814.401 Receipt and safeguarding of bids.
The contracting officer is designated as the official to open bids
for identification, as provided in FAR 14.401.
814.402 Opening of bids.
(a) The contracting officer must serve as, or designate, a bid
opening officer, and must also designate a recorder.
(b) If a bid bond is required, the bid opening officer must read
aloud the form and amount of bid security and the name of the surety.
The recorder must record this information.
814.403 Recording of bids.
(a) The recorder must transcribe the information required for bid
evaluation on the appropriate Abstract of Offers form (SF 1409 or OF
1419). The evaluation data may be recorded on supplemental sheets or
forms such as VA Form 10-2237b, Request for Dietetic Supplies, provided
that any supplemental sheets or forms are covered by one of the forms
authorized for recording bid or price data.
(b) The bid opening officer must comply with the instructions in
FAR 14.403 and certify on the abstract the date and hour at which the
bids were opened. Where erasures, strikeovers, or changes in price are
noted at the time of bid opening, a statement to that effect must also
be included on, or attached to, the abstract or record of bids.
814.404 Rejection of bids.
814.404-1 Cancellation of invitations after opening.
(a) For each invitation to bid that VA cancels or for which it
receives no bid, the contracting officer must do the following:
(1) File a copy of the invitation for bids, as provided for in FAR
14.404-1, together with the abstract showing to whom such bids were
sent, in a separate folder identified by the invitation number.
(2) Annotate the abstract to show why an award was not made.
(3) Retain the folders for the current and two succeeding fiscal
years.
(b) The HCA may approve cancellation of invitations for bid after
opening and may approve completion of the acquisition after
cancellation, as provided in FAR 14.404-1(e). The contracting officer
must submit a Determination and Finding to the HCA for approval and
signature.
814.404-2 Rejection of individual bids.
(a) When a contracting officer finds a bid that is being considered
for an award is incomplete, e.g., all pages of the invitation have not
been returned by the bidder, the contracting officer will take
whichever of the following actions that is appropriate:
(1) Make a determination that the bid as submitted is in such a
form that acceptance would create a valid and binding contract,
requiring the contractor to perform in accordance with all of the
material terms and conditions of the invitation. The determination may
be based on the fact that the bid as submitted includes evidence that
the offeror intends to be bound by all the material terms and
conditions of the invitation.
(2) Make a determination that the bid as submitted is in such form
that acceptance would not create a valid and binding contract.
(b) When VA receives a single bid in response to a solicitation,
the contracting officer must not reject the offer simply because it
specifies a bid acceptance time that is shorter than that contained in
the solicitation, unless a compelling reason exists for rejecting such
a bid. Insufficient time to properly evaluate an offer is a compelling
reason for rejection; however, the contracting officer must first
request the offeror to extend the acceptance date of the bid to allow
for proper evaluation.
(c) In those cases where VA receives more than one bid, the
contracting officer must reject as nonresponsive an individual bid that
is not in compliance with the Government's bid acceptance time, since
consideration of such an offer would unfairly disadvantage other
bidders.
814.404-70 Questions involving the responsiveness of a bid.
If a contracting officer cannot resolve a question involving the
responsiveness of a bid, the contracting officer may submit the
question to the Comptroller General through the DSPE.
814.407 Mistakes in bids.
814.407-3 Other mistakes disclosed before award.
(a) In accordance with FAR 14.407-3(e), the authority of the
Secretary to make the administrative determinations set forth in FAR
14.407-3(a), (b), (c), and (d) is delegated to the SPE and is further
delegated, without power of redelegation, to the DSPE. This delegation
in no way impairs the delegations contained in Unpublished Decision of
the Comptroller General B-122003 dated November 22, 1954.
(b) When a bidder alleges a mistake in his or her bid before award,
after complying with the provisions of FAR 14.407-3, the contracting
officer must submit the complete file to the DSPE for an administrative
determination. Based upon the evidence submitted, the DSPE shall
determine the action the contracting officer is to take. The
contracting officer may make no award until the DSPE makes a
determination.
814.407-4 Mistakes after award.
(a) When a contracting officer corrects a mistake in bid under FAR
14.407-4(a), the contracting officer must forward a copy of the
contract amendment or supplemental agreement and a copy of the
contracting officer's determination, to the DSPE.
(b) For mistakes in a bid alleged after award, the contracting
officer's proposed determination, prepared in accordance with FAR
14.407-4, must be forwarded to OGC through the DSPE, Acquisition
Resources Service, for legal coordination. The DSPE shall transmit the
results of this coordination to the contracting officer, who will make
the
[[Page 2746]]
final determination on the alleged mistake in bid after award.
(c) The DSPE, Acquisition Resources Service, must maintain the
agency records of mistakes in bids after award required by FAR 14.407-
4.
814.408 Award.
814.408-70 Award when only one bid is received.
(a) When VA receives only one bid in response to an invitation for
bids, the contracting officer may consider and accept the bid if all of
the following apply:
(1) The specifications used in the invitation were not restrictive.
(2) VA solicited adequate competition.
(3) The price is reasonable.
(4) The bid is otherwise in accordance with the invitation for
bids.
(b) The contracting officer must make the determination in writing,
and include it the contract file.
814.408-71 Recommendation for award (construction).
(a) For Central Office contracts, the Director, Office of
Construction and Facilities Management, must analyze all bids received
and submit a memorandum to the Secretary recommending award or other
disposition of the project. A copy of each of the following must
accompany the memorandum:
(1) The invitation.
(2) Each bid received.
(3) The abstract.
(4) Any other pertinent data.
(b) For facility-level contracts, the Chief, Engineering Service,
must analyze all bids received and submit a memorandum recommending
award or other disposition of the project to the contracting officer.
The contracting officer alone must make the final decision to accept or
reject the lowest responsive bid and the determination as to the
responsibility of a prospective contractor.
814.409 Information to bidders.
(a) An employee of VA may not disclose information as to probable
acceptance or rejection of any offer to any bidder or other person
outside of VA, except as authorized by the FAR.
(b) Except as provided in paragraphs (c) and (d) of this section,
information about performance under a contract or an accepted bid is
not public information and will be released to persons outside of VA
only upon the authority of the immediate supervisor of the contracting
officer.
(c) Except as provided in paragraph (d) of this section, the
contracting officer may furnish information on performance under a
contract to those having a legitimate interest, such as sureties,
banks, other financial companies and Government departments and
agencies.
(d) When litigation is involved, all information must be furnished
through OGC.
PART 815--CONTRACTING BY NEGOTIATION
Subpart 815.3--Source Selection
Sec.
815.303 Responsibilities.
Subpart 815.4--Contract Pricing
815.404 Proposal analysis.
815.404-1 Proposal analysis techniques.
815.404-2 Information to support proposal analysis.
Subpart 815.6--Unsolicited Proposals
815.604 Department points of contact.
815.606 Department procedures.
815.606-1 Receipt and initial review.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 815.3--Source Selection
815.303 Responsibilities.
The authority of the Secretary to appoint an individual other than
the contracting officer to serve as the source selection authority for
a particular acquisition or group of acquisitions is delegated to the
SPE and is further delegated to the DSPE. If an HCA wishes to designate
an individual other than the delegated contracting officer as the
source selection authority for a particular acquisition or group of
acquisitions, the HCA shall prepare a request and justification and
shall submit the request through channels to the DSPE for approval.
Subpart 815.4--Contract Pricing
815.404 Proposal analysis.
815.404-1 Proposal analysis techniques.
(a) Contracting officers are responsible for the technical and
administrative sufficiency of the contracts they enter into.
Contracting officers must ensure that contracts undergo all applicable
legal and technical reviews. (See 801.602-70.)
(b) Contracting officers determine the level of technical analyses
necessary for initial and revised pricing of all negotiated prime
contracts, including subcontract pricing under them, and contract
modifications. Contracting officers must request technical analyses of
the proposals from the appropriate technical personnel. The technical
analyses must address, as a minimum, the items set forth in FAR 15.404-
1(e)(2).
(c) The contracting officer must document the results of such
analyses in the contract file and make the results available to the
auditor performing the pre-award audit.
815.404-2 Information to support proposal analysis.
In evaluating start-up and other non-recurring costs, the
contracting officer must determine the extent to which these costs are
included in the proposed price and the intent to absorb or recover the
costs in any future noncompetitive procurement or other pricing action.
The contracting officer must ensure, with the assistance of the
Assistant Inspector General for Policy, Planning, and Resources, as
required or considered necessary, that VA will not pay the costs twice.
For example, the cost of equipment that the Government pays for through
a setup or connection agreement must not be included in depreciation
cost of a subsequently negotiated agreement.
Subpart 815.6--Unsolicited Proposals
815.604 Department points of contact.
A VA employee who receives an unsolicited proposal or inquiries
from a potential offeror of an unsolicited proposal must refer the
proposal or inquiries to the following:
(a) Facility level unsolicited proposals must be referred to the
HCA for the field facility.
(b) Proposals to the VA National Acquisition Center must be
referred to the Executive Director and Chief Operating Officer, VA
National Acquisition Center.
(c) Proposals to VA Central Office must be referred to the
Director, Acquisition Operations Service (049A3).
815.606 Department procedures.
(a) The VA contact point will do the following:
(1) Determine the nature of the potential proposal and which
technical/professional disciplines within VA to consult to determine
the need for the proposal and the likelihood that a formal proposal
would earn favorable review.
(2) In consultation with such technical/professional offices, the
VA contact point will furnish the potential offeror the information
specified in FAR 15.604 and any other information that might be of
assistance to the potential offeror.
(b) The contact point will maintain a record of advance guidance
provided and the disposition/recommendation regarding the potential
offer.
[[Page 2747]]
(c) The contact point will review the unsolicited proposal and
ensure that it is complete as prescribed in FAR 15.605. If required
information is not submitted, the contact point will:
(1) Determine if FAR 15.604 requires advance guidance;
(2) Determine whether a comprehensive evaluation prescribed by FAR
15.606-2 is appropriate and, if so, request that the offeror provide
the necessary information; and,
(3) Establish an estimated due date for completion of the review
process.
815.606-1 Receipt and initial review.
(a) When the VA contact point determines a proposal warrants a
comprehensive evaluation (i.e., the proposal complies with the
requirements in FAR 15.606-1(a) and is related to VA's mission), the
contact point must contact the offeror to ensure that all data that
should be restricted in accordance with FAR 15.609 has been identified.
(b) The contact point must maintain a log of all unsolicited
proposals to be evaluated. The log must indicate the following:
(1) The date the proposal was received.
(2) The date that the unsolicited proposal was determined to
warrant a comprehensive evaluation.
(3) A description of the proposal.
(4) The offices requested to evaluate the proposal and the date the
offices are requested to return their evaluations.
(5) The date the reviewing offices finalize their respective
evaluations.
(6) The final disposition of the proposal.
(c) The contact point must advise each office assigned
responsibility for reviewing an unsolicited proposal of the need to
evaluate the proposal against the criteria set forth in FAR
15.607(a)(1) through (4). If the reviewers determine that the proposal
fails to meet any of the criteria, the contact point must be advised.
The contact point must return the proposal to the offeror, citing the
reasons therefore.
(d) The contact point must obtain approval of the DSPE (049A5)
before the contact point, if warranted as a contracting officer, or an
appropriate contracting officer begins negotiation on proposals. The
contact point must provide the DSPE (049A5) all necessary documentation
supporting the noncompetitive negotiation, including any justification
and approval required by FAR Subpart 6.3 and the results of any
synopsis required by FAR Subpart 5.2. The DSPE (049A5) will consult the
appropriate VA Central Office program official(s) and return the final
decision to the contact point.
PART 816--TYPES OF CONTRACTS
Subpart 816.1--Selecting Contract Types
Sec.
816.102 Policies.
Subpart 816.5--Indefinite-Delivery Contracts
816.504 Indefinite-quantity contracts.
816.505 Ordering.
Subpart 816.70--Unauthorized Agreements
816.7001 Letters of availability.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 816.1--Selecting Contract Types
816.102 Policies.
(a) Contracting officers must obtain technical review of
solicitations that include a clause that provides for economic price
adjustment specified in FAR 16.203-4 or any locally developed clause
(see FAR 16.203-4(d)(2) and 801.602-72(d)). The request for approval
must include a clearly stated need for the clause.
(b) The contracting officer must obtain the approval of the
Director, Acquisition Resources Service (049A5), VA Central Office,
before issuing a solicitation or awarding a contract that includes
time-and-material or labor-hour pricing provisions if the ceiling price
or estimated value of the acquisition exceeds $100,000. See 801.602-71
for technical review requirements. Excluded from this requirement are
time-and-material or labor-hour solicitations or proposed contracts
covering emergencies, such as repair of a broken water, sewer, or
communication line, repair of storm damage, etc. (i.e., where FAR
6.302-2 applies).
(c) Except as provided in FAR 32.703-3, a contract that involves a
direct obligation of appropriations and lasts for more than one year
from the beginning of the contract period must provide that:
(1) The contract applies to the period stated in the contract,
subject to availability of funds; and
(2) The contractor will not perform any service under the contract
after September 30 of each fiscal year (or beyond the period of the
basic contract or any authorized option if the contract crosses fiscal
years as provided in FAR 32.703-3(b)) unless the contractor obtains
specific authorization from the contracting officer.
(d) A/E contracts, construction contracts, or professional engineer
contracts, financed by ``no year'' appropriations, are not subject to
the requirements of paragraph (c) of this section.
Subpart 816.5--Indefinite-Delivery Contracts
816.504 Indefinite-quantity contracts.
(a) Except as provided in paragraphs (b), (c), and (d) of this
section, when the contracting officer cannot determine definite
quantities to be acquired under a solicitation and intends to issue a
solicitation for estimated quantities, the contracting officer shall
insert the clause at 852.216-70, Estimated quantities.
(b) The contracting officer shall insert the Alternate I clause at
852.216-70 in solicitations for bulk coal.
(c) The contracting officer shall insert the Alternate II clause at
852.216-70 in solicitations for estimated quantities of orthopedic,
prosthetic, and optical supplies.
(d) The contracting officer shall insert the Alternate III clause
at 852.216-70 in solicitations for monuments and headstones.
816.505 Ordering
The task order contract and delivery order ombudsman for VA is the
Associate Deputy Assistant Secretary for Acquisitions (see FAR
16.505(b)(5)). Contracting officers may obtain the name, telephone
number, facsimile number, and e-mail address of the current Associate
Deputy Assistant Secretary for Acquisitions by contacting: The Office
of Acquisitions (049A), VA Central Office, 810 Vermont Ave., NW.,
Washington, DC 20420.
Subpart 816.70--Unauthorized Agreements
816.7001 Letters of availability.
(a) Description. A letter of availability (sometimes
inappropriately called a letter of intent) is a letter to a supplier
that primarily seeks to reserve a place on the supplier's production or
delivery schedule for long lead-time items. A letter of availability
usually indicates products or services being considered for
procurement. A supplier should not construe a letter of availability as
a commitment. Prospective contractors sometimes solicit letters of
availability or the letters may originate from Government personnel. A
letter of availability differs from a letter contract, which is
specifically authorized in FAR 16.603.
(b) Policy. (1) For the following reasons, contracting officers may
not use letters of availability unless the DSPE specifically authorizes
them to do so:
(i) Letters of availability often cause potential contractors to
initiate costly
[[Page 2748]]
preparations in anticipation of contract award.
(ii) Procurements announced in such letters do not always
materialize. The result may be costly to the Government, the
prospective contractor, or both. If the author of the letter of
availability is an authorized contracting officer of VA, the Government
may be bound by the action, even though the action is contrary to sound
procurement practices and/or fiscal regulations. If the author of the
letter of availability lacks procurement authority, the prospective
contractor may incur substantial expenditures that may not be recovered
from the Government. In this instance, the prospective contractor may
seek to hold the unauthorized author personally liable.
(iii) The issuance of a letter of availability may violate the
``Anti-Deficiency Act'' (31 U.S.C. 1341).
(2) Contractors need access to procurement information as soon as
possible to make timely preparations. Therefore, procurement personnel
should act as efficiently and expeditiously as possible on all
procurement actions.
PART 817--SPECIAL CONTRACTING METHODS
Subpart 817.1--Multi-year Contracting
Sec.
817.105 Policy.
817.105-1 Uses.
Subpart 817.2--Options
817.202 Use of options.
817.204 Contracts.
Subpart 817.4--Leader Company Contracting
817.402 Limitations.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
Subpart 817.1--Multi-year Contracting
817.105 Policy.
817.105-1 Uses.
(a) Under 38 U.S.C. 114, VA contracting officers may enter into
multi-year contracts for supplies and services not to exceed 5 years
(unless otherwise authorized by statue), provided the Secretary or
designee makes the following determinations:
(1) Appropriations are available for obligation to pay for the
total payments for the fiscal year in which the contract is awarded
plus the estimated amount of any cancellation charges.
(2) The contract serves the best interest of the Government by:
(i) Reducing cost;
(ii) Achieving contract administration and other efficiencies;
(iii) Increasing quality contract performance; and
(iv) Encouraging effective competition.
(3) That, during the contract period:
(i) Demand for the supplies or services will continue;
(ii) Substantial changes in demand for supplies and services in
terms of quantity or rate of delivery are unlikely; and
(iii) Specifications for the supplies or services will remain
reasonably stable.
(4) The risk of the contractor's inability to perform under the
terms and conditions of the contract is low.
(5) A multi-year contract will not inhibit competition from small
businesses.
(6) For a pharmaceutical item for which a patent has expired less
than 4 years before the solicitation issue date, that there is no
substantial likelihood that increased competition among potential
contractors would occur during the term of the contract as the result
of the availability of generic equivalents increasing during the term
of the contract.
(b) The Secretary has delegated authority to make the
determinations specified in 817.105-1(a) as follows:
(1) HCAs may make the above determinations and approve contracts
that do not require legal/technical reviews under 801.602-70 and that
do not contain a first year cancellation ceiling exceeding 20 percent
of the contract value over the full multi-year term.
(2) Authority to make the above determinations and to approve all
other proposed multi-year contracts is delegated to the SPE and is
further delegated to the DSPE. For approval purposes, the HCA will
justify and document the use of a multi-year contract against each of
the criteria specified in paragraphs (a)(1) through (a)(6) of this
section and forward to the DSPE for approval. The justification must
explain the cancellation ceiling and the method used to calculate that
ceiling. The justification also must explain the advantages of multi-
year contracts over other alternative methods, e.g., option year
contracts.
(c) The contracting officer must develop the cancellation ceilings
in accordance with FAR 17.106-1. (38 U.S.C. 114)
Subpart 817.2--Options
817.202 Use of options.
All solicitations developed under Office of Management and Budget
Circular A-76 (Revised) cost comparisons will provide for four one-year
renewal options as prescribed in FAR Subpart 17.2. The contracting
officer must forward requests to use less or more than the prescribed
contract period for Circular A-76 (Revised) cost comparisons to the
DSPE for approval.
817.204 Contracts.
(a) The contracting officer must obtain the approval of the DSPE
before awarding a contract that includes options exceeding the 5-year
limitation specified in FAR 17.204(e). This requirement does not apply
to contracts to be awarded by or on behalf of the VA Office of the
Inspector General. The request for approval must include the following:
(1) Supporting documentation, rationale, and justifications for the
use of options (see FAR 17.205) and for exceeding the 5-year
limitation.
(2) Documentation that the contracting officer has considered and
addressed the limitations specified in FAR 17.202(b) and (c).
(b) Solicitations that require technical review in accordance with
801.602-71 through 801.602-73 shall be submitted for review
concurrently as provided therein.
Subpart 817.4--Leader Company Contracting
817.402 Limitations.
(a) Except as provided in paragraph (b) of this section, the
Government shall not initiate or execute leader company contracts.
(b) The DSPE may designate a contracting officer to enter into a
leader company contract for the benefit of VA and the Government. The
DSPE must designate a contracting officer by name for a specific
contract. The named contracting officer will submit the proposed
contract, with a determination and finding, for legal review in
accordance with 801.602-75.
SUBCHAPTER D--SOCIOECONOMIC PROGRAMS
PART 819--SMALL BUSINESS PROGRAMS
Subpart 819.2--Policies
Sec.
819.201 General policy.
819.202 Specific policies.
819.202-1 Encouraging small business participation in acquisitions.
819.202-5 Data collection and reporting requirements.
819.202-70 HCA responsibilities.
819.202-71 Additional contracting officer responsibilities.
819.202-72 Order of precedence.
[[Page 2749]]
Subpart 819.5--Set-Asides For Small Business
819.502 Setting aside acquisitions.
819.502-2 Total small business set-asides.
819.502-3 Partial set-asides.
Subpart 819.6--Certificates of Competency and Determinations of
Responsibility
819.602 Procedures.
819.602-3 Resolving differences between VA and the Small Business
Administration.
Subpart 819.8--Contracting with the Small Business Administration (The
8(a) Program)
819.800 General.
Subpart 819.70--Veteran-Owned and Operated Small Businesses
819.7001 Policy.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 819.2--Policies
819.201 General policy.
The Director, Office of Small and Disadvantaged Business
Utilization (OSBDU), is designated as the official responsible for
making the determination required by FAR 19.201(f).
819.202 Specific policies.
819.202-1 Encouraging small business participation in acquisitions.
Contracting officers may negotiate payment terms of less than 30
calendar days to encourage small business participation. A period of
less than 7 days may not be prescribed (see FAR 32.908(c)(2)). The
contracting officer and the local fiscal officer must be in agreement
on the negotiated payment terms before awarding the contract.
819.202-5 Data collection and reporting requirements.
(a) Administration heads, staff office directors, and HCAs must, in
addition to the responsibilities designated in FAR 19.202-5, cooperate
with OSDBU in formulating specific small business program goals and
providing other data necessary for goal assessment.
(b) Each VA acquisition activity shall establish goals for the
expenditure of funds with preferred businesses within their projected
annual budget. OSDBU is responsible for Department-wide goals and
accomplishments and will approve or adjust each acquisition activity's
goals.
(c) A Procurement Preference Program Goals Report (Report Control
Symbol 00-0427) shall be submitted annually by each acquisition
activity to reach OSDBU by November 1. Each report shall contain total
expenditure estimates and goals for the current fiscal year and
explanations of the methods utilized to arrive at each proposed goal.
Anticipated problems in the attainment of the proposed goal in any
category shall also be identified. This information will be used in
negotiating the Department goals with the Small Business Administration
(SBA).
(d) As an addendum to the report, each acquisition activity shall
provide a narrative explaining the reason(s) for any shortfall(s) in
the achievement of any previous fiscal year goal category.
(e) Upon review by OSDBU of the proposed goals, each acquisition
activity will be notified of the acceptance of goals as submitted, or
of any deficiencies. If the goals are not acceptable, the acquisition
activity will be requested to submit further written justification for
the goals submitted. Based on documents submitted, OSDBU will make a
final determination on the goal assignment.
(f) Accomplishment of goals will be determined by OSDBU from data
reported by acquisition activities into the Federal Procurement Data
System-Next Generation (FPDS-NG).
819.202-70 HCA responsibilities.
An HCA must perform the following functions in support of the small
business program. These functions cannot be delegated without written
approval of the Director, OSBDU:
(a) Develop, on an annual basis, a plan of operation to increase
the share of contracts and purchase orders awarded to the small
business programs prescribed in FAR Part 19. This plan must also
include veteran-owned and service-disabled veteran-owned small business
concerns.
(b) Promote goals for the small business programs set forth in FAR
Part 19. This must also include veteran-owned and service-disabled
veteran-owned small business concerns.
(c) Review the types and classes of items and services to be
purchased to determine the applicability of individual small business
set-asides.
(d) Review class set-asides, established in accordance with
criteria in FAR 19.503, at least annually to determine whether items or
services procured under a unilateral or joint set-aside should be
modified or withdrawn.
(e) Maintain updated lists of acquisitions reserved for small
business on a class basis.
(f) If the acquisition activity is assigned to an SBA Procurement
Center Representative, assure that the representative is provided
logistical support, cooperation, and access to all reasonably
obtainable contract information directly pertinent to the SBA
Procurement Center Representative's official duties.
(g) Encourage technical personnel and end-users to participate in
discussions with veteran-owned and service-disabled veteran-owned small
business concerns.
(h) Attend conferences and meetings publicizing small business
programs. This responsibility may be delegated without the written
approval of the Director, OSBDU.
819.202-71 Additional contracting officer responsibilities.
In addition to the duties designated in FAR 19.202 through 19.202-
6, contracting officers must perform the following functions in support
of the small business program:
(a) Make maximum use of small business source lists.
(b) Assure that small business firms are identified on solicitation
mailing lists and bid abstracts.
(c) Assure that specifications are not unduly restrictive, thereby
enabling small business participation to the maximum extent possible.
(d) Assist and counsel small business firms with individual
problems.
(e) Provide for counseling non-responsive or non-responsible small
business bidders to help qualify them for future awards.
(f) Submit informational copies of all small business protests and
appeals to the Director, OSBDU, at the same time they are submitted to
the SBA.
Subpart 819.5--Set-Asides for Small Business
819.502 Setting aside acquisitions.
819.502-2 Total small business set-asides.
(a) When a total small business set-aside is made, one of the
following statements, as applicable, will be included in the
solicitation for bids:
(1) Notice of total small business set-aside, page ----, applies
to all items in this solicitation.
(2) Notice of total small business set-aside, page ----, applies
to items ---- through ---- in this solicitation.
(b) Contracting officers must ensure that the appropriate product
or service classification and the related size standard are included in
each solicitation.
819.502-3 Partial set-asides.
When, in accordance with the provisions of FAR 19.502-3, the
contracting officer determines that a particular procurement will be
partially set aside for small business participation, the solicitation
for bids shall include the appropriate product or
[[Page 2750]]
service classification and appropriate size standard, and the following
statement shall be placed on the face page:
Notice of partial set-aside, page ----, applies to item ----
through item ---- in this solicitation.
Subpart 819.6--Certificates of Competency and Determinations of
Responsibility
819.602 Procedures.
819.602-3 Resolving differences between VA and the Small Business
Administration.
The Director, OSDBU, is the VA liaison with the SBA. Information
copies of correspondence sent to the SBA seeking a certificate of
competency determination must be concurrently provided to the Director,
OSDBU. Before appealing a certificate of competency, the HCA must seek
concurrence from the Director, OSDBU.
Subpart 819.8--Contracting With the Small Business Administration
(The 8(a) Program)
819.800 General.
(a) No contract will be entered into with SBA under section 8(a) of
the Small Business Act (15 U.S.C. 637(a)) unless a certification is
made by the Administrator of that agency, or designee, that SBA is
competent to perform the contract.
(b) When it is determined that the requirements of VA are
appropriate for inclusion in this program, the contracting officer will
make this fact known to proper officials of the SBA regional office
servicing his/her area. However, when projects funded from minor
construction appropriation (between $400,000 and $2 million) are
proposed for 8(a) acquisition, the Director, OSDBU (00SB), shall be
contacted by telephone or notified in writing in order to afford the
OSDBU an opportunity to identify possible 8(a) sources prior to
apprising SBA officials. If the certification required by paragraph (a)
of this section is received, the VA contracting officer will secure
from SBA the name(s) and location(s) of their subcontractor(s) and the
unit price(s) to be paid. Should these prices be within a range
acceptable to VA, the contracting officer will notify SBA of
acceptance.
(c) The contract will be made between VA and SBA and will be
administered by VA.
Subpart 819.70--Veteran-Owned and Operated Small Businesses
819.7001 Policy.
(a) The Small Business Act directs the SBA to give ``special
consideration'' to veterans of the Armed Forces in all SBA programs. It
is the policy of VA to encourage participation by all veteran-owned and
operated small businesses in VA acquisitions.
(b) All VA facilities having procurement requirements for which
veteran-owned small businesses are known sources must take affirmative
action to solicit these firms and assist them in participating in VA
acquisition opportunities.
PART 822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
Subpart 822.3--Contract Work Hours and Safety Standards Act
Sec.
822.304 Variations, tolerances, and exemptions.
822.305 Contract clause.
Subpart 822.4--Labor Standards for Contracts Involving Construction
822.406 Administration and enforcement.
822.406-11 Contract terminations.
Authority: 29 CFR 5.15(d); 40 U.S.C. 121(c); 48 CFR 1.301-1.304.
Subpart 822.3--Contract Work Hours and Safety Standards Act
822.304 Variations, tolerances, and exemptions.
When issuing a contract for nursing home care, a contracting
officer may exempt a contractor from certain requirements of the
Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708)
regarding the payment of overtime (see 29 CFR 5.15(d)(2) and 852.222-
70).
822.305 Contract clause.
The contracting officer shall insert the clause at 852.222-70,
Contract Work Hours and Safety Standards Act--nursing home care
contract supplement, in solicitations and contracts for nursing home
care when the FAR clause at 52.222-4, Contract Work Hours and Safety
Standards Act--Overtime Compensation, is included.
Subpart 822.4--Labor Standards for Contracts Involving Construction
822.406 Administration and enforcement.
822.406-11 Contract terminations.
(a) Contracting officers must submit any proposed termination of a
contract based on violations of the labor standard provisions of the
contract to OGC for review and comment prior to taking final action.
The submittal must include a detailed explanation of the facts and
circumstances involved. Contracting officers, except those in the
Office of Construction and Facilities Management, shall forward the
submittal to OGC through the DSPE. Contracting officers in the Office
of Construction and Facilities Management shall forward the submittal
to OGC through the Director, Office of Construction and Facilities
Management.
(b) If the contract is to be terminated, the DSPE or the Director,
Office of Construction and Facilities Management, must submit the
reports required by 29 CFR 5.7(d) over the signature of the SPE.
PART 824--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
Subpart 824.1--Protection of Individual Privacy
Sec.
824.102 General.
Subpart 824.2--Freedom of Information Act
824.203 Policy.
Authority: 38 CFR 1.550-1.559 and 1.575-1.584; 40 U.S.C. 121(c),
and 48 CFR 1.301-1.304.
Subpart 824.1--Protection of Individual Privacy
824.102 General.
VA rules implementing the Privacy Act of 1974 are in 38 CFR 1.575
through 1.584.
Subpart 824.2--Freedom of Information Act
824.203 Policy.
VA rules implementing the Freedom of Information Act are in 38 CFR
1.550 through 1.559.
PART 825--FOREIGN ACQUISITION
Subpart 825.1--Buy American Act--Supplies
Sec.
825.103 Exceptions.
825.104 Nonavailable articles.
Subpart 825.2--Buy American Act--Construction Materials
825.202 Exceptions.
825.205 Post-award determinations.
Subpart 825.6--Trade Sanctions
825.602 Exceptions.
Subpart 825.8--Other International Agreements and Coordination
825.870 Technical assistance.
[[Page 2751]]
Subpart 825.9--Customs and Duties
825.902 Procedures.
825.902-70 Technical assistance.
Subpart 825.10--Additional Foreign Acquisition Regulations
825.1001 Waiver of right to examination of records.
Subpart 825.11--Solicitation Provisions and Contract Clauses
825.1102 Acquisition of construction.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 825.1--Buy American Act--Supplies
825.103 Exceptions.
(a) Public Interest. When a contracting officer believes that a
determination that domestic preference would be inconsistent with the
public interest is necessary under FAR 25.103(a), the contracting
officer must submit the request for determination to the DSPE for
submission to the SPE, who will forward the request to the Secretary
for approval. The request for determination must contain all the facts
and other pertinent information upon which a determination may be made.
(b) Non-availability. (1) For each determination of non-
availability made in accordance with FAR 25.103(b)(2)(i), the HCA must
do the following:
(i) Factually support the determination and include the supporting
facts in the contract file.
(ii) Forward a copy of the determination, along with supporting
documentation, to the DSPE.
(2) If the HCA believes that the non-availability of an article is
likely to affect future acquisitions, include a recommendation that a
copy of the determination and supporting documentation be forwarded to
the Civilian Agency Acquisition Council (CAAC) for possible addition to
the list of non-available articles in FAR 25.104. The DSPE will decide
whether to submit the material to the CAAC.
825.104 Nonavailable articles.
The following items are added to the list of nonavailable articles
contained in FAR 25.104:
Glass, lead
Insulin, human
Subpart 825.2--Buy American Act--Construction Materials
825.202 Exceptions.
(a) When a determination is required under FAR 25.202(a)(1), the
contracting officer must submit the request for determination to the
DSPE for submission to the SPE, who will forward the request to the
Secretary. The submission must contain all the facts and other
pertinent information necessary for the Secretary to make a
determination.
(b) For each determination of non-availability that the HCA makes
in accordance with FAR 25.202(a)(2), the HCA must do the following:
(1) Factually support the determination in writing and include the
determination in the contract file.
(2) Forward a copy of the determination, along with supporting
documentation, to the Director, Office of Construction and Facilities
Management, through the DSPE.
(3) If the HCA believes that the non-availability of an article is
likely to affect future acquisitions, include a recommendation that a
copy of the determination and supporting documentation be forwarded to
the Civilian Agency Acquisition Council (CAAC) for possible addition to
the list of non-available articles in FAR 25.104. The DSPE will decide
whether to submit the material to the CAAC.
825.205 Post-award determinations.
A post-award determination that an exception to the Buy American
Act applies, as provided in FAR 25.205(c), will be made in accordance
with FAR 25.202 and 825.202.
Subpart 825.6--Trade Sanctions
825.602 Exceptions.
When the contracting officer determines it to be in the best
interest of the Government, the contracting officer may request an
exception to the requirements of FAR 25.601 from the Secretary through
the DSPE and the SPE. Each such request must be fully justified and
include all pertinent facts, as provided in FAR 25.602(b). The SPE is
responsible for notifying the U.S. Trade Representative of approved
requests, as required by FAR 25.602(b)(2).
Subpart 825.8--Other International Agreements and Coordination
825.870 Technical assistance.
Contracting officers may obtain technical information or guidance
on international agreements and treaties for procurements outside of
the United States by contacting the Executive Director and Chief
Operating Officer, VA National Acquisition Center.
Subpart 825.9--Customs and Duties
825.902 Procedures.
825.902-70 Technical assistance.
Should the regulations contained in FAR Subpart 25.9 be inadequate
to meet the particular needs of the contracting officer in clearing
items through customs and/or obtaining duty-free entry of goods, the
contracting officer should contact the nearest U.S. Customs and Boarder
Protection office for technical assistance. The location of the nearest
office can be found at http://www.customs.gov/xp/cgov/toolbox/contacts/cmcs/.
Subpart 825.10--Additional Foreign Acquisition Regulations
825.1001 Waiver of right to examination of records.
(a) The contracting officer must prepare proposed determinations
and findings to use either of the following:
(1) Alternate I of the FAR clause at 52.212-5, Contract Terms and
Conditions Required to Implement Statutes or Executive Orders--
Commercial Items.
(2) Alternate III of the FAR clause at 52.215-2, Audit and
Records--Negotiation.
(b) The contracting officer must submit the determinations and
findings to the DSPE for submission to the SPE, who will forward the
request to the Secretary for the signature, as provided in FAR
25.1001(a)(2)(iii). The submission must include all appropriate
documentation.
(c) The Secretary, upon concurring with the contracting officer's
proposed determination and findings, will, if required by FAR
25.1001(a)(2)(iii), forward the document to the Comptroller General for
concurrence.
(d) The completed determination and findings will be made part of
the contract file.
Subpart 825.11--Solicitation Provisions and Contract Clauses
825.1102 Acquisition of construction.
The Buy American Act (41 U.S.C. 10a-d), except as modified by
various trade agreements (see FAR Part 25), requires that only domestic
construction material be used in the performance of contracts for
construction. For solicitations and contracts for construction that
contain a FAR clause related to the Buy American Act, the contracting
officer shall insert the applicable VAAR clause, with or without an
alternate, as shown in Table 825.1102:
[[Page 2752]]
Table 825.1102
------------------------------------------------------------------------
FAR clause VAAR clause to be used
------------------------------------------------------------------------
FAR 52.225-9, Buy American Act-- 852.236-89, Buy American
Construction Materials. Act.
FAR clause 52.225-11, Buy American Act-- 852.236-89, Buy American
Construction Materials under Trade Act, with its Alternate I.
Agreements, without its Alternate I (see
FAR 25.1102(c)).
FAR clause 52.225-11, Buy American Act-- 852.236-89, Buy American
Construction Materials under Trade Act, with its Alternate II.
Agreements, with its Alternate I (see FAR
25.1102(c)(3)).
------------------------------------------------------------------------
Subchapter E--General Contracting Requirements
PART 828--BONDS AND INSURANCE
Subpart 828.1--Bonds and Other Financial Protections
Sec.
828.101 Bid guarantees.
828.101-2 Solicitation provision or contract clause.
828.101-70 Safekeeping and return of bid guarantee.
828.106 Administration.
828.106-6 Furnishing information.
828.106-70 Bond premium adjustment.
Subpart 828.2--Sureties and Other Security for Bonds
828.203 Acceptability of individual sureties.
828.203-7 Exclusion of individual sureties.
Subpart 828.3--Insurance
828.306 Insurance under fixed-price contracts.
Subpart 828.71--Indemnification of Contractors, Medical Research or
Development Contracts
828.7100 Scope of subpart.
828.7101 Approval for indemnification.
828.7102 Extent of indemnification.
828.7103 Financial protection.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
Subpart 828.1--Bonds and Other Financial Protections
828.101 Bid guarantees.
828.101-2 Solicitation provision or contract clause.
When a bid bond is required for supplies or services, the phrase
``any cost of acquiring the work'' in paragraph (e) of the Bid
Guarantee clause in FAR 52.228-1 may be modified to refer to the cost
of ``supplies,'' ``services,'' etc.
828.101-70 Safekeeping and return of bid guarantee.
(a) The contracting officer must retain, in a safe, certified
checks or other negotiable security provided as bid security for the
three lowest acceptable bids. After the contract and contract bonds
have been signed and approved, the contracting officer must return the
certified checks or other negotiable securities either:
(1) In person to the bidder who provides a proper receipt; or
(2) By any method that will provide evidence that the bidder
received the security.
(b) The contracting officer should promptly return certified checks
or other negotiable security furnished in support of bids, other than
those determined to be the three lowest acceptable bids, to the
respective bidders either:
(1) In person to the bidder who provides a proper receipt; or
(2) By any method that will provide evidence that the bidder
received the security.
(c) The contracting officer will not return commercial bid bonds
unless specifically requested to do so by the bidders. If any of the
three low bidders request the return of a commercial bid bond, the
contracting officer will not return those bid bonds until the contract
and contract bonds have been executed by the successful bidder and
approved by the contracting officer or all bids have been rejected.
828.106 Administration.
828.106-6 Furnishing information.
The contracting officer for the applicable contract will furnish
copies of payment bonds to a requestor under the provisions of FAR
28.106-6(c).
828.106-70 Bond premium adjustment.
When performance and payment bonds or payment protection are
required, the contract must contain the clause in 852.228-70, Bond
premium adjustment.
Subpart 828.2--Sureties and Other Security for Bonds
828.203 Acceptability of individual sureties.
828.203-7 Exclusion of individual sureties.
The DSPE may make the determinations referenced in FAR 28.203-7:
(a) To exclude individuals from acting as surety on bonds; and
(b) To accept bonds from individuals named on the Excluded Parties
List System.
Subpart 828.3--Insurance
828.306 Insurance under fixed-price contracts.
(a) Term contracts, or contracts of a continuing nature, for
ambulance, automobile and aircraft service, must contain the provision
in 852.228-71, Indemnification and insurance.
(b) Paragraph (a) of this section does not apply to emergency or
sporadic ambulance service authorized by VA Manual MP-1, Part II,
Chapter 3, or other emergency or sporadic vehicle or aircraft services
if both of the following conditions exist:
(1) The service is not used solely for the purpose of avoiding
entering into a continuing contract.
(2) The services will be obtained from firms known to carry
insurance coverage in accordance with State or local requirements.
Subpart 828.71--Indemnification of Contractors, Medical Research or
Development Contracts
828.7100 Scope of subpart.
(a) This subpart sets forth the policies and procedures concerning
indemnification of contractors performing contracts covering medical
research or development that involve risks of an unusually hazardous
nature, as authorized by 38 U.S.C. 7317.
(b) The authority to indemnify the contractor under this subpart
does not create any rights to third parties that would not otherwise
exist by law.
(c) As used in this subpart, the term ``contractor'' includes
subcontractors of any tier under a contract containing an
indemnification provision under 38 U.S.C. 7317. (38 U.S.C. 7317)
828.7101 Approval for indemnification.
(a) The Secretary of Veterans Affairs will make the approval
determinations for the indemnification of contractors.
(b) Contracting officers must submit requests for approval,
together with all available information, to the DSPE for submission to
the SPE, who will forward the request to the Secretary for approval.
(38 U.S.C. 7317)
[[Page 2753]]
828.7102 Extent of indemnification.
(a) A contract for medical research or development authorized by 38
U.S.C. 7303, may provide that the Government will indemnify the
contractor against losses or liability specified in paragraphs (b) and
(c) of this section if all of the following apply:
(1) The contract work involves a risk of an unusually hazardous
nature.
(2) The losses or liability arise out of the direct performance of
the contract.
(3) The losses or liability are not covered by the financial
protection required under 828.7103.
(b) The Government may indemnify a contractor for liability
(including reasonable expenses of litigation or settlement) to third
persons for death, bodily injury, or loss of or damage to property from
a risk that the contract defines as unusually hazardous. The
indemnification will not cover liability under State or Federal
worker's injury compensation laws to employees of the contractor who
are both:
(1) Employed at the site of the contract work; and
(2) Working on the contract for which indemnification is granted.
(c) The Government may indemnify the contractor for loss of or
damage to property of the contractor from a risk that the contract
defines as unusually hazardous.
(d) A contract that provides for indemnification in accordance with
this subpart must also require that:
(1) The contractor must notify the contracting officer of any claim
or suit against the contractor for death, bodily injury, or loss of or
damage to property; and
(2) The Government may choose to control or assist in the defense
of any suit or claim for which indemnification is provided in the
contract. (38 U.S.C. 7317)
828.7103 Financial protection.
(a) A contractor must have and maintain an amount of financial
protection to cover liability to third persons and loss of or damage to
the contractor's property that meets one of the following:
(1) The maximum amount of insurance available from private sources.
(2) A lesser amount that the Secretary establishes after taking
into consideration the cost and terms of private insurance.
(b) Financial protection may include private insurance, private
contractual indemnities, self-insurance, other proof of financial
responsibility, or a combination that provides the maximum amount
required. If a contractor elects to self-insure, the contractor must
provide the contracting officer, before award, proof of financial
responsibility up to the maximum amount required. (38 U.S.C. 7317)
PART 829--TAXES
Sec.
829.000 Scope of part.
Subpart 829.2--Federal Excise Taxes
829.202 General exemptions.
829.202-70 Tax exemptions for alcohol products.
Subpart 829.3--State and Local Taxes
829.302 Application of State and local taxes to the Government.
829.302-70 Purchases made from patients' funds.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
829.000 Scope of part.
This part states the policies and procedures for the following:
(a) Exemptions of alcohol products purchased for use by the VA
medical care program from Federal excise taxes.
(b) Specified refund procedures for State and local taxes.
Subpart 829.2--Federal Excise Taxes
829.202 General exemptions.
829.202-70 Tax exemptions for alcohol products.
(a) General.
(1) VA is permitted to procure spirits to be used for non-beverage
purposes free of tax under the Alcohol and Tobacco Tax and Trade Bureau
(TTB) regulations (see 27 CFR 19.538 and 19.539, 20.241 through 20.246,
22.161 and 22.162, 22.171 through 22.176, 24.293, and 25.181 through
25.185). The use of tax-free alcohol, whiskey, beer, wine, and
denatured spirits for non-beverage purposes shall include, but is not
limited to, medicinal and scientific purposes.
(2) The Executive Director and Chief Operating Officer, National
Acquisition Center, and the Head of the Contracting Activity may sign
application permits on Department of Treasury-TTB Form 5150.33, Spirits
for Use of The United States. This authority may not be delegated.
(b) Whiskey, alcohol, and denatured alcohol.
(1) The contracting officer may obtain application forms for tax-
free purchases from the TTB Distribution Center, P.O. Box 5950,
Springfield, VA 22150-5950. The completed forms must be submitted to
the Associate Director (Compliance Operations), Alcohol and Tobacco Tax
and Trade Bureau, Washington, DC 20226.
(2) Permits previously issued on Alcohol, Tobacco, and Firearms
(ATF) Form 1444, Tax-Free Spirits for Use of United States, remain
valid until surrendered or cancelled. A copy of the current ATF Form
1444 or TTB Form 5150.33 must be made available to the supplier with
the initial order. The permit number only needs to be referenced on any
future orders with the same supplier.
(3) Contracting officers may make purchases of excise tax-free
whiskey and alcohol only from qualified distillery plants or bonded
dealers. The accountable officer must ensure that accurate records of
all receipts, usage, and destruction of tax-free distilled spirits are
maintained at each medical center and must conduct a semi-annual
physical inventory of the tax-free alcohol in the possession of the
medical center (see 27 CFR 22.161 and 22.162).
(c) Wine. No tax exemption form or ATF/TTB permit is required for
the tax-free procurement of wine from bonded wine premises. The
purchase order must show the kind, quantity, and alcohol content of the
wine and must state the purpose for which wine is to be used (see 27
CFR 24.293). An extra copy of a properly executed purchase order may be
furnished to the bonded wine premises from which wine is purchased to
facilitate record keeping.
(d) Beer. The contracting officer may procure tax-free beer only
from licensed breweries and only when such product is prescribed for
patients' therapeutic use.
(1) The contracting officer must submit an application for a TTB
permit to purchase tax-free beer in letter form to the Director of the
nearest TTB Regional Office or to the Director, Alcohol and Tobacco Tax
and Trade Bureau, Washington, DC 20226. The following information must
be included:
(i) Name and address of facility.
(ii) Specific purpose for which the beer will be used.
(iii) Quantity proposed to buy each month, year, etc.
(iv) Name and address of brewery.
(v) Copy of document authorizing the head of the contracting
activity to sign the request (i.e., paragraph (a)(2) of this section).
(2) The contracting officer must obtain a separate permit for each
brewery from which beer is to be purchased.
Subpart 829.3--State and Local Taxes
829.302 Application of State and local taxes to the Government.
(a) If a vendor refuses to sell at a price exclusive of the State
and local tax, the contracting officer must use Standard
[[Page 2754]]
Form (SF) 1094, U.S. Tax Exemption Certificate, as a basis for billing
taxing authorities for a refund of taxes paid.
(b) A contracting officer may not furnish an SF 1094 to a vendor or
use SF 1094 to claim reimbursement from the taxing authority when the
total amount of State and local tax on any one purchase is $10 or less.
829.302-70 Purchases made from patients' funds.
The contracting officer shall insert the clause at 852.229-70,
Sales or use taxes, in solicitations and contracts when items are to be
purchased solely from the personal funds of patients.
PART 831--CONTRACT COST PRINCIPLES AND PROCEDURES
Subpart 831.70--Contract Cost Principles and Procedures
Sec.
831.7000 Scope of subpart.
831.7001 Allowable costs under cost reimbursement vocational
rehabilitation and education contracts or agreements.
831.7001-1 Tuition.
831.7001-2 Special services or courses.
831.7001-3 Books, supplies, and equipment required to be personally
owned.
831.7001-4 Medical services and hospital care.
831.7001-6 Consumable instructional supplies.
831.7001-7 Reimbursement for other supplies and services.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
Subpart 831.70--Contract Cost Principles and Procedures
831.7000 Scope of subpart.
This subpart contains general cost principles and procedures for
the determination and allowance of costs in connection with the
negotiation and administration of cost reimbursement type contracts for
providing vocational rehabilitation, education, and training to
eligible veterans under 38 U.S.C. Chapter 31, (referred to as a
``Chapter 31 program'').
831.7001 Allowable costs under cost reimbursement vocational
rehabilitation and education contracts or agreements.
831.7001-1 Tuition.
(a) Except as provided in this section, when the contractor has a
customary cost of tuition, the charge to VA may not exceed that charged
to similarly circumstanced nonveteran students. If the contractor has
more than one standard charge for the same service, the charge to VA
must be the lowest price that is offered or published for the entire
course, semester, quarter, or term.
(b) VA will not normally pay tuition or incidental fees to
institutions or establishments furnishing apprentice or other on-the-
job training. VA may elect to pay charges or expenses that fall into
either of the following categories:
(1) Charges customarily made by a nonprofit workshop or similar
establishment for providing work adjustment training to similarly
circumstanced nonveterans even if the trainee receives an incentive
wage as part of the training.
(2) Training expenses incurred by an employer who provides on-the-
job training following rehabilitation to the point of employability
when VA determines that the additional training is necessary.
(c) When Federal funds pay the total cost of instruction, or grants
from the Federal Government pay a portion of the cost (e.g., Smith-
Hughes or other laws, excluding Federal Land Grant Funds), that subsidy
will be taken into consideration in determining the charge to VA. The
term ``Federal Land Grant Funds'' refers to those funds received under
the Morrill-Nelson Act (Morrill Acts of 1862 and 1890 and the Nelson
amendment of 1907) and section 22 of the Bankhead-Jones Act of 1935.
(d) A veteran who is participating in a Chapter 31 program and
receives an award of a fellowship, scholarship, grant-in-aid,
assistantship, or similar award will have that award treated according
to the following requirements:
(1) If the award limits its use to payment of tuition, fees, or any
charge that VA normally pays as part of a Chapter 31 program, VA will
pay the portion of the charges remaining after applying the award.
(2) In all other cases, VA will pay the full amount of the tuition,
fees, or other charges.
(e) If a State or other Government authority waives a veteran's
tuition and fees, VA will reduce its payment of those charges by the
amount of the waiver.
(f) VA will pay enrollment fees for registration if both of the
following conditions exist:
(1) The institution or training establishment usually makes this
charge.
(2) The charge is not more than other students or trainees pay.
831.7001-2 Special services or courses.
Special services or courses are those services or courses that VA
requests that are over and above those the institution customarily
provides for similarly circumstanced nonveterans and that the
contracting officer considers to be necessary for the rehabilitation of
the trainee. VA will negotiate the costs of special services or courses
before paying them.
831.7001-3 Books, supplies, and equipment required to be personally
owned.
(a) Reimbursement for supplies (including books, equipment, or
other supplies) will be made as provided in this section.
(b) VA will provide reimbursement for those supplies that all
students taking the same course or courses are customarily required to
own personally. In addition, VA may provide reimbursement for items
that the school does not specifically require for pursuit of the
course, but that VA determines are needed because of the demands of the
course, general possession by other students, and the disadvantage
imposed on a veteran by not having the item. In no instance will VA
provide reimbursement for supplies in a greater variety, quality, or
amount than required of nonveteran students. In this instance, an item
is not considered to be required if it is ``requested'' or ``desirable
to have'' or ``necessary for a future profession or job but not
required by the institution of all students in the course''.
(c) When supplies are available in several prices, grades, or
qualities, VA will provide reimbursement only for that quality or grade
that will meet the requirements.
(d) Partial payment agreements, in which VA shares payment with the
veterans, are not allowed.
(e) The institution's costs in connection with a veteran's thesis
are considered supplies and are therefore authorized for reimbursement
if the veteran's committee chairman, major professor, department head,
or appropriate dean certifies that the thesis is a course requirement
and the expenses are required to complete the thesis. These expenses
may include research expenses, typing, printing, microfilming, or
otherwise reproducing the required number of copies.
(f) When the institution operates a bookstore or supply store for
all students, reimbursement to the bookstore or supply store for
supplies issued to trainees will be no greater than charges made to
nonveteran students.
(g) When the institution, training establishment, or employer
arranges for stores or other non-institutionally owned establishments
to issue supplies to all students and a veteran is to pay the store or
establishment for supplies issued to trainees, VA will provide
reimbursement for those charges if they are no greater than those
nonveterans
[[Page 2755]]
pay or paid to the institutions, whichever is the lesser.
(h) Supplies that the institution purchases specifically for
trainees will be reimbursed at the net cost to the institution.
(i) When the institution does not provide or arrange for issuance
of generally required books, tools and supplies for students attending
the facility, the institution, in cooperation with VA, may designate
certain stores and establishments to provide generally required books,
tools and supplies for veterans pursuing a vocational rehabilitation
program. The vendor will be reimbursed in the same manner as for
supplies provided or arranged for by the institutions.
(j) When it is customary in a survey class to permit each student
to rent books for the subject (commonly referred to as a rental set),
and the student is not required to own the books/materials,
reimbursement is authorized for the rental charge as long as it does
not exceed the charge made to nonveteran students.
(k) Educational and training institutions that furnish supplies to
trainees that all students pursuing the same or similar course are
required to own personally or obtain may be compensated for furnishing
the supplies in an amount not exceeding 10 percent of the allowable
charge for the supplies furnished or rented subject to the following
conditions:
(1) When the tuition covers the charges for supplies or rentals or
a stipulated fee is assessed to all students, handling charges are not
allowable.
(2) The handling charge is not allowable for Government-owned books
that the institution procures from the Library of Congress.
831.7001-4 Medical services and hospital care.
(a) VA may pay the customary student health fee when payment of the
fee is required for similarly circumstanced nonveterans. If payment of
the fee is not required for similarly circumstanced nonveterans,
payment may be made if it is determined by the Veterans Health
Administration that payment is in the best interest of the veteran and
the Government.
(b) When the customary student's health fee does not cover medical
services or hospital care, but these medical services are available in
a school-operated facility or with doctors and hospitals in the
immediate area through a prior arrangement, the Veterans Benefits
Administration may provide reimbursement for these services in a
contract for the services if:
(1) An arrangement is necessary to provide timely medical services
for veterans attending the facility under provisions of Chapter 31; and
(2) The general rates established for medical services do not
exceed the rates established by the Under Secretary for Health.
(c) VA may reimburse a rehabilitation facility for incidental
medical services provided during a veteran's program at the facility.
831.7001-6 Consumable instructional supplies.
(a) VA will provide reimbursement for consumable instructional
supplies that the institution requires for the instruction of all
students, veteran or nonveteran, pursuing the same or comparable course
or courses when:
(1) The supplies are entirely consumed in the fabrication of a
required project; or
(2) The supplies are not consumed but are of such a nature that
they cannot be salvaged from the end product for reuse by disassembling
or dismantling the end product.
(b) VA will not provide reimbursement for consumable instructional
supplies if any of the following apply:
(1) The supplies can be salvaged for reuse.
(2) The supplies are used in a project that the student has elected
as an alternate class project to produce an end product of greater
value than that normally required to learn the skills of the
occupation, and the end product will become the veteran's property upon
completion.
(3) The supplies are used in a project that the institution has
selected to provide the student with a more elaborate end product than
is required to provide adequate instruction as an inducement to the
veteran to elect a particular course of study.
(4) The sale value of the end product is equal to or greater than
the cost of supplies plus assembly, and the supplies have not been
reasonably used so that the supplies are not readily salvaged from the
end product to be reused for instructional purposes.
(5) The end product is of permanent value and retained by the
institution.
(6) A third party loans the articles or equipment for repair or
improvement and the third party would otherwise pay a commercial price
for the repair or improvement.
(7) The number of projects resulting in end products exceeds the
number normally required to teach the recognized job operations and
processes of the occupation stipulated in the approved course of study.
(8) The cost of supplies is included in the charge for tuition or
as a fee designated for such purpose.
831.7001-7 Reimbursement for other supplies and services.
VA will provide reimbursement for other services and assistance
that may be authorized under provisions of applicable Chapter 31
regulations, including, but not limited to, employment and self-
employment services, initial and extended evaluation services, and
independent living services.
PART 832--CONTRACT FINANCING
Sec.
832.006 Reduction or suspension of contract payments upon finding of
fraud.
832.006-1 General.
832.006-2 Definitions.
832.006-3 Responsibilities.
832.006-4 Procedures.
Subpart 832.1--Non-Commercial Item Purchase Financing
832.111 Contract clauses for non-commercial purchases.
Subpart 832.2--Commercial Item Purchase Financing
832.201 Statutory authority.
832.202 General.
832.202-1 Policy.
832.202-4 Security for Government financing.
Subpart 832.4--Advance Payments for Non-Commercial Items
832.402 General.
832.404 Exclusions.
Subpart 832.5--Progress Payments Based on Costs
832.502 Preaward matters.
832.502-2 Contract finance office clearance.
Subpart 832.8--Assignment of Claims
832.805 Procedure.
832.805-70 Distribution/notification of assignment of claims.
Subpart 832.9--Prompt Payment
832.904 Determining payment due dates.
Subpart 832.11--Electronic Funds Transfer
832.1106 EFT mechanisms.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
832.006 Reduction or suspension of contract payments upon finding of
fraud.
832.006-1 General.
The SPE is authorized to make determinations that there is
substantial evidence that contractors' requests for advance, partial,
or progress payments are based on fraud and may direct that further
payments to the contractors be reduced or suspended, as provided in FAR
32.006. This authority may not be redelegated.
[[Page 2756]]
832.006-2 Definitions.
The remedy coordination official for VA is the DSPE.
832.006-3 Responsibilities.
VA personnel must report suspected fraud related to advance,
partial, or progress payments to the DSPE and VA Office of the
Inspector General. The report must include all available information
supporting the suspicion.
832.006-4 Procedures.
(a) Any recommendation from a VA employee through the DSPE to the
SPE to reduce or suspend payment to a contractor under FAR 32.006 must
address the considerations in FAR 32.006-4(d).
(b) The DSPE shall carry out the responsibilities of the Secretary
or designee in FAR 32.006-4(e) to notify the contractor of proposed
action under FAR 32.006. The notice of proposed action will be sent to
the last known address of the contractor, the contractor's counsel, or
agent for service of process, by certified mail, return receipt
requested, or any other method that provides signed evidence of
receipt. In the case of a business, the notice of proposed action may
be sent to any partner, principal, officer, director, owner or co-
owner, or joint venture. The contractor will be afforded an opportunity
to appear before the DSPE to present information or argument in person
or through a representative. The contractor may supplement the oral
presentation with written information and argument. The proceedings
will be conducted in an informal manner and without the requirement for
a transcript. If the DSPE does not receive a reply from the contractor
within 30 calendar days, the DSPE will base his or her recommendations
on the information available. Any recommendation of the DSPE under
paragraph (a) of this section must address the results of this
notification and the information, if any, provided by the contractor.
(c) The SPE must provide a copy of each final determination and the
supporting documentation to the contractor, the DSPE and the
contracting officer. The contracting officer will place a copy of the
determination and the supporting documentation in the contract file.
Subpart 832.1--Non-Commercial Item Purchase Financing
832.111 Contract clauses for non-commercial purchases.
In solicitations and contracts for construction that include the
FAR clause at 52.232-5, Payments under Fixed-Price Construction
Contracts, the contracting officer shall insert the following clauses:
(a) If the solicitation or contract does not contain a section
entitled ``Network Analysis System (NAS),'' the contracting officer
must insert the clause at 852.236-82, Payments under fixed-price
construction contracts (without NAS). When the solicitation or contract
includes guarantee period services, the contracting officer must use
the clause with its Alternate I.
(b) If the solicitation or contract contains a section entitled
``Network Analysis System (NAS),'' the contracting officer must insert
the clause at 852.236-83, Payments under fixed-price construction
contracts (including NAS). When the solicitation or contract includes
guarantee period services, the contracting officer must use the clause
with its Alternate I.
Subpart 832.2--Commercial Item Purchase Financing
832.201 Statutory authority.
The contracting officer may make the determination that terms and
conditions for payment for commercial items are appropriate and
customary in the commercial marketplace and are in the best interest of
the Government, provided the terms and conditions for payment do not
conflict with FAR Subpart 32.2.
832.202 General.
832.202-1 Policy.
As provided in FAR 32.202-1(d), contracting officers must obtain
the approval of the DSPE before awarding a contract that includes
unusual contract financing. The contracting officer must fully support
the request with the reasons why the proposed unusual contract
financing is in the best interest of the Government. In addition,
contracting officers must not use commercial interim payment or
commercial advance payment terms in solicitations or contracts without
the approval of the DSPE.
832.202-4 Security for Government financing.
An offeror's financial condition may be considered adequate
security to protect the Government's interest when the Government
provides contract financing. In assessing the offeror's financial
condition, the contracting officer may obtain, to the extent required,
the following information to establish the offeror's financial
capability and to determine the offeror's financial condition:
(a) A current year interim balance sheet and income statement and
balance sheets and income statements for the two preceding fiscal
years. The statements should be prepared in accordance with generally
accepted accounting principles and must be audited and certified by an
independent public accountant or an appropriate officer of the firm.
(b) A cash flow forecast for the remainder of the contract term
showing the planned origin and use of cash within the firm or branch
performing the contract.
(c) Information on financing arrangements disclosing the
availability of cash to finance contract performance, the contractor's
exposure to financial crisis, and credit arrangements.
(d) A statement of the status of all State, local, and Federal tax
accounts, including any special mandatory contributions.
(e) A description and explanation of the financial effects of any
leases, deferred purchase arrangements, patent or royalty arrangements,
insurance, planned capital expenditures, pending claims, contingent
liabilities, and other financial aspects of the business.
(f) Any other financial information deemed necessary.
(g) A Dun and Bradstreet Report on the company.
Subpart 832.4--Advance Payments for Non-Commercial Items
832.402 General.
Authority to make the determination required by FAR
32.402(c)(1)(iii) and to approve contract terms, as provided by FAR
32.402(e)(1), is delegated to the SPE and is further delegated to the
DSPE. Before award, contracting officers must submit a request for
approval to use advance payment to the DSPE. The request must include
the information required by FAR 32.409-1 and must address the standards
for advance payment in FAR 32.402(c)(2).
832.404 Exclusions.
(a) Under 31 U.S.C. 3324(d)(2), VA allows advance payment for
subscriptions or other charges for newspapers, magazines, periodicals,
and other publications for official use, notwithstanding the provisions
of 31 U.S.C. 3324(a). The term ``other publications'' includes any
publication printed, microfilmed, photocopied or magnetically or
otherwise recorded for auditory or visual use.
(b) Under 31 U.S.C. 1535, VA allows advance payment for services
and supplies obtained from another Government agency.
[[Page 2757]]
(c) Under 5 U.S.C. 4109, VA allows advance payment for all or any
part of the necessary expenses for training Government employees in
Government or non-Government facilities, including the purchase or
rental of books, materials, and supplies or services directly related
to the training of a Government employee.
Subpart 832.5--Progress Payments Based on Costs
832.502 Pre-award matters.
832.502-2 Contract finance office clearance.
Contracting officers must obtain approval from the DSPE before
taking the actions listed in FAR 32.502-2. Full justification and the
recommendations of the contracting officer must accompany requests for
approval.
Subpart 832.8--Assignment of Claims
832.805 Procedure.
832.805-70 Distribution/notification of assignment of claims.
(a) Prior to acknowledgement of receipt, in addition to the
requirements of FAR 32.805(d), the contracting officer shall obtain
legal review of the assignment (see 801.602-75(a)(7)). Upon
acknowledgement of receipt, the contracting officer shall:
(1) File the retained copy of the notice of assignment and the
certified copy of the original instrument of assignment with the
Government Accountability Office copy of the contract; and
(2) Forward a copy of the notice of assignment and instrument of
assignment to the local finance office and to the payment office cited
in the contract.
(b) Contracting officers must notify field facilities of any
recognized assignment of payments for contracts under which payment for
articles and services is certified and approved for payment in the
field.
Subpart 832.9--Prompt Payment
832.904 Determining payment due dates.
(a) When preparing specification packages, contracting officers
must give full consideration to the time reasonably required for
constructive acceptance or approval of the goods or services and for
making invoice payments. Based on this analysis, contracting officers
may, when authorized by FAR 32.904, modify the number of days allowed
for notifying contractors of defects in invoices or, for construction
solicitations, the number of days allowed for payment of invoices
specified in the applicable prompt payment clause. Changes, if any,
should be made before issuing the solicitation.
(b)(1) For construction solicitations, the analysis specified in
paragraph (a) of this section may routinely take more than the 7 days
provided in paragraph (a)(2) of the FAR clause at 52.232-27, Prompt
Payment for Construction Contracts, to evaluate and return defective
progress payment invoices.
(2) It also may take more than the 14 days provided in paragraph
(a)(1)(i)(A) of the prompt payment clause to adequately inspect the
work, determine the adequacy of the contractor's performance, approve,
and pay progress payment invoices.
(3) Contracting officers should consider the following and, if
necessary, revise the number of days stated in paragraphs (a)(2) and
(a)(1)(i)(A) of the prompt payment clause before issuing construction
solicitations (see FAR 32.904(d)(1)(i)):
(i) Recent interest payment history.
(ii) The complexity of the project.
(iii) Workload.
(iv) Work site location.
(4) In no event may the number of days be set in excess of 14 days
for return of a defective progress payment invoice or 30 days for
payment of the invoice.
Subpart 832.11--Electronic Funds Transfer
832.1106 EFT mechanisms.
(a) The Assistant Secretary for Management may, with the
concurrence of the Department of the Treasury office responsible for
making payment, authorize the use of EFT mechanisms other than those
authorized under FAR 32.1106(a).
(b) The Assistant Secretary for Management may, with the
concurrence of the Department of the Treasury office responsible for
making payment, authorize the use of EFT for payments to be received by
or on behalf of a contractor outside the United States or Puerto Rico
or for contracts paid in other than United States currency, as provided
in FAR 32.1106(b).
PART 833--PROTESTS, DISPUTES, AND APPEALS
Subpart 833.1--Protests
Sec.
833.102 General.
833.103 Protests to VA.
833.104 Protests to GAO.
833.106 Solicitation provision and contract clause.
Subpart 833.2--Disputes and Appeals
833.209 Suspected fraudulent claims.
833.211 Contracting officer's decision.
833.212 Contracting officer's duties upon appeal.
833.213 Obligation to continue performance.
833.214 Alternative dispute resolution (ADR).
833.215 Contract clause.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 833.1--Protests
833.102 General.
Solicitations must instruct interested parties (see FAR provision
52.233-2) to send a copy of any protest filed with the Government
Accountability Office (GAO) to the contracting officer and the
appropriate VA Central Office activity as follows:
(a) For contracts to be awarded by the Office of Construction and
Facilities Management: Director, Office of Construction and Facilities
Management, Department of Veterans Affairs, 810 Vermont Avenue, NW.,
Washington, DC 20420.
(b) For all other contracts: Deputy Assistant Secretary for
Acquisition and Materiel Management, Department of Veterans Affairs,
810 Vermont Avenue, NW., Washington, DC 20420.
833.103 Protests to VA.
(a) Filing of protests. (1) An interested party may protest to the
contracting officer or, as an alternative, may request an independent
review by filing a protest with the Deputy Assistant Secretary for
Acquisition and Materiel Management (DAS for A&MM), or for
solicitations issued by the Director, Office of Construction and
Facilities Management. A protest filed with the DAS for A&MM or the
Director, Office of Construction and Facilities Management, will not be
considered if the interested party has a protest on the same or similar
issues pending with the contracting officer.
(2) Protests to the contracting officer must be in writing and
addressed where the offer/bid is to be submitted.
(3) Protests requesting an independent review must be in writing
and addressed to the Deputy Assistant Secretary for Acquisition and
Materiel Management, Department of Veterans Affairs, 810 Vermont
Avenue, NW., Washington, DC 20420; or, for solicitations issued by the
Office of Construction and Facilities Management, to the Director,
Office of Construction and Facilities Management, Department of
Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420.
(4) The following types of protests may be dismissed by VA without
[[Page 2758]]
consideration of the merits or forwarded to another agency for
appropriate action:
(i) Contract administration. Disputes between a contractor and VA
are resolved under the disputes clause of the contract and the Contract
Disputes Act of 1978. (41 U.S.C. 601-613).
(ii) Small business size standards and standard industrial
classification. Challenges of established size standards or the size
status of particular firms, and challenges of the selected standard
industrial classification are for review solely by the Small Business
Administration (SBA). (15 U.S.C. 637(b)(6); 13 CFR 121.1002).
(iii) Small business certificate of competency program. A protest
made under section 8(b)(7) of the Small Business Act, or in regard to
any issuance of a certificate of competency or refusal to issue a
certificate under that section, is not reviewed in accordance with bid
protest procedures unless there is a showing of possible fraud or bad
faith on the part of Government officials.
(iv) Protests under section 8(a) of the Small Business Act. The
decision to place or not to place a procurement under the 8(a) program
is not subject to review unless there is a showing of possible fraud or
bad faith on the part of Government officials or that regulations may
have been violated. (15 U.S.C. 637(a)).
(v) Affirmative determination of responsibility by the Contracting
Officer. An affirmative determination of responsibility will not be
reviewed unless there is a showing that such determination was made
fraudulently or in bad faith or that definitive responsibility criteria
in the solicitation were not met.
(vi) Walsh-Healey Public Contract Act. Challenges of the legal
status of a firm as a regular dealer or manufacturer within the meaning
of the Walsh-Healey Act is determined solely by the procuring agency,
the SBA (if a small business is involved), and the Secretary of Labor.
(41 U.S.C. 35-45).
(vii) Subcontractor protests. The contracting agency will not
consider subcontractor protests except where the subcontract is by or
for the Government.
(viii) Judicial proceedings. The contracting agency will not
consider protests where the matter involved is the subject of
litigation before a court of competent jurisdiction.
(b) Alternative dispute resolution. Bidders/offerors and VA
contracting officers are encouraged to use alternative dispute
resolution (ADR) procedures to resolve protests at any stage in the
protest process. If ADR is used, VA will not furnish any documentation
in an ADR proceeding beyond what is allowed by the FAR.
(c) Action upon receipt of protest. For protests filed with the
contracting officer, the HCA will be the approving official for the
determinations identified in FAR 33.103(f)(1) and (f)(3). If the HCA is
also the contracting officer, the approving official will be the DAS
for A&MM. For protests filed with the DAS for A&MM or the Director,
Office of Construction and Facilities Management, those individuals
will be the approving officials for the determinations identified in
FAR 33.103(f)(1) and (f)(3).
(d) Requests for GAO advance decisions. When a written protest has
been filed with the contracting officer and the contracting officer
considers it desirable to do so, the contracting officer may request an
advance decision from the Comptroller General. The contracting officer
must send the submission to the Comptroller General through the DAS for
A&MM or the Director, Office of Construction and Facilities Management,
as appropriate, and must include the material listed in FAR 33.104(a).
The contracting officer must promptly notify the protesting individual
or firm in writing of the decision of the Comptroller General.
(e) Protest after award. When a written protest is filed with the
contracting officer after contract award, the following requirements
apply:
(1) If FAR 33.103(f)(3) requires suspension of contract
performance, the contracting officer must seek to obtain a mutual
agreement with the contractor to suspend performance on a no-cost
basis. If unsuccessful, the contracting officer must issue a stop-work
order in accordance with contract clause FAR 52.233-3, Protest after
Award.
(2) If suspension of contract performance is not required by FAR
33.103(f)(3) and if the contracting officer determines that the award
was proper, the contracting officer must furnish the protester a
written explanation of the basis for the award that is responsive to
the allegations of the protest. The contracting officer will advise the
protester that the protester may appeal the determination to one of the
following:
(i) The DAS for A&MM.
(ii) The Director, Office of Construction and Facilities
Management, in the case of a contract awarded by the Office of
Construction and Facilities Management.
(iii) The Comptroller General.
(3) If suspension of contract performance is not required by FAR
33.103(f)(3) but the contracting officer determines that the award is
questionable, the contracting officer, after consulting with OGC, will
advise the contractor of the protest and invite the contractor to
submit comments and relevant information. The contracting officer must
submit the case promptly to the DAS for A&MM for advice. The DAS for
A&MM may consult with OGC and will either advise the contracting
officer of the appropriate action to take, or submit the case to the
Comptroller General, through the Assistant Secretary for Management,
for a decision. The contracting officer will provide interested parties
with a copy of the final decision.
(f) Agency appellate review of the contracting officer's protest
decision. An interested party may request an independent review of a
contracting officer's protest decision by filing an appeal with the DAS
for A&MM or, for solicitations issued by the Office of Construction and
Facilities Management, with the Director, Office of Construction and
Facilities Management. To be considered timely, the appeal must be
received by the appropriate official named in this paragraph within 10
calendar days of the date the interested party knew, or should have
known, whichever is earlier, of the basis for the appeal. Appeals must
be addressed as provided in paragraph (a)(3) of this section. Appeals
do not extend GAO's timeliness requirements for appeals to GAO. By
filing an appeal as provided in this paragraph, an interested party may
waive its rights to further appeal to the Comptroller General at a
later date. Agency responses to appeals submitted to the agency shall
be reviewed and concurred in by OGC (025).
833.104 Protests to GAO.
(a) General procedures. (1) Procedures for protests to GAO are at 4
CFR Part 21 (GAO Bid Protest Regulations). If guidance concerning GAO
procedure in this section differs from 4 CFR Part 21, 4 CFR Part 21
applies.
(2) When a protest before or after award has been filed with GAO,
the contracting officer must submit a report to the DAS for A&MM, or
the Director, Office Construction and Facilities Management, as
appropriate, within 5 workdays after receipt of verbal or written
notice of the protest, whichever occurs first. The report must include
a copy of the documentation indicated in FAR 33.104(a)(3).
(3) Contracting officers are responsible for the notification
procedures outlined in FAR 33.104(a)(4).
(b) Protests before award. When VA receives notice from GAO of a
pre-
[[Page 2759]]
award protest filed directly with GAO, award will normally not be made
until the matter is resolved. However, award may be made despite the
protest if the DAS for A&MM, or the Director, Office of Construction
and Facilities Management, as appropriate, approves the findings of the
HCA required by FAR 33.104(b)(1) and GAO has been notified as provided
by FAR 33.104(b)(2). The Director, Acquisition Resources Service, or
the Director, Office of Construction and Facilities Management, as
appropriate, is responsible for notifying GAO.
(c) Protests after award. When, after award of a contract, VA
receives notice from GAO of a protest filed directly with GAO, the
contracting officer must, if required to do so by FAR 33.104(c)(1),
immediately suspend performance. However, contract performance need not
be suspended, despite the protest, if the SPE approves the HCA's
findings required by FAR 33.104(c)(2) and GAO has been notified under
FAR 33.104(c)(3). Authority to approve the HCA's findings is further
delegated to the DSPE and, for solicitations issued by the Officer of
Construction and Facilities Management, the Director, Office of
Construction and Facilities Management. The Director, Acquisition
Resources Service, or the Director, Office of Construction and
Facilities Management, as appropriate, is responsible for notifying
GAO.
833.106 Solicitation provisions.
(a) The contracting officer shall insert the provision at 852.233-
70, Protest content/alternative dispute resolution, in each
solicitation expected to exceed the simplified acquisition threshold.
(b) The contracting officer shall insert the provision at 852.233-
71, Alternative protest procedure, in solicitations expected to exceed
the simplified acquisition threshold.
Subpart 833.2--Disputes and Appeals
833.209 Suspected fraudulent claims.
The contracting officer must refer matters relating to suspected
fraudulent claims to the Office of Inspector General for investigation
and referral to the Department of Justice. The contracting officer may
not initiate any collection, recovery, or other settlement action while
the matter is in the hands of the Department of Justice without first
obtaining the concurrence of the U.S. Attorney concerned, through the
Office of the Inspector General.
833.211 Contracting officer's decision.
(a) When a dispute cannot be settled by agreement and a final
decision under the Disputes clause of the contract is necessary, the
contracting officer must furnish the contractor the contracting
officer's final decision in the matter.
(b) The contracting officer must identify the decision, in writing,
as a final decision and include a statement of facts in sufficient
detail to enable the contractor to fully understand the decision and
the basis on which it was made. The decision must set forth those facts
relevant to the dispute with which the contractor and the contracting
officer are in agreement, and as clearly as possible, the area of
disagreement.
(c) For VA contracts, the Board of Contract Appeals noted in FAR
33.211 is the Civilian Board of Contract Appeals (CBCA), 1800 F Street,
NW., Washington, DC 20405.
833.212 Contracting officer's duties upon appeal.
(a) When a contracting officer receives notice of appeal in any
form, the contracting officer must do the following:
(1) Annotate the appeal with the date of mailing (or date of
receipt, if otherwise conveyed).
(2) Within 10 days, forward the original notice of appeal and a
copy of the contracting officer's final decision letter to the OGC.
(3) Concurrently transmit copies of the notice of appeal and the
final decision letter to the DAS for A&MM. (In cases of construction
contracts administered by the Office of Construction and Facilities
Management, copies of the appeal and the final decision letter need not
be transmitted to the DAS for A&MM but instead should be sent to the
Director, Office of Construction and Facilities Management.)
(b) Within 20 days of receipt of an appeal, or advice that an
appeal has been filed, the contracting officer must assemble and
transmit to the OGC, an appeal file consisting of all documents
pertinent to the appeal, including all of the following:
(1) The decision and findings of fact that are being appealed.
(2) The contract, including specifications and pertinent
amendments, plans and drawings.
(3) All correspondence between the parties pertinent to the appeal,
including the letter or letters of claim in response to which the
decision was issued.
(4) Transcripts of any testimony taken during the course of
proceedings and affidavits or statements of any witnesses on the matter
in dispute made prior to the filing of the notice of appeal.
(5) Any additional information considered pertinent.
833.213 Obligation to continue performance.
(a) As provided in FAR 33.213, contracting officers shall use FAR
clause 52.233-1, Disputes, with its Alternate I. Clause 52.233-1
requires the contractor to continue performance in accordance with the
contracting officer's decision in the event of a claim arising under a
contract. Alternate I expands this authority, adding a requirement for
the contractor to continue performance in the event of a claim relating
to the contract.
(b) In the event of a dispute not arising under, but relating to,
the contract, if the contracting officer directs continued performance,
the contracting officer may consider providing financing for the
continued performance, provided that the Government's interests are
properly secured. The contracting officer will contact the DAS for A&MM
and OGC for advice prior to authorizing such financing.
833.214 Alternative dispute resolution (ADR).
Contracting officers and contractors are encouraged to use
alternative dispute resolution (ADR) procedures. CBCA guidance on ADR
may be obtained at http://www.cbca.gsa.gov.
833.215 Contract clause.
The contracting officer must use the clause at 52.233-1, Disputes,
with its Alternate I (see 833.213).
Subchapter F--Special Categories of Contracting
PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
Subpart 836.2--Special Aspects of Contracting for Construction
Sec.
836.202 Specifications.
836.203 Government estimate of construction costs.
836.204 Disclosure of the magnitude of construction projects.
836.206 Liquidated damages.
836.209 Construction contracts with architect-engineer firms.
836.213 Special procedures for sealed bidding in construction
contracting.
836.213-4 Notice of award.
836.213-70 Notice to proceed.
Subpart 836.5--Contract Clauses
836.500 Scope of subpart.
836.501 Performance of work by the contractor.
836.513 Accident prevention.
836.521 Specifications and drawings for construction.
836.570 Correspondence.
836.571 Reference to ``standards.''
836.572 Government supervision.
[[Page 2760]]
836.573 Daily report of workers and materials.
836.574 Subcontracts and work coordination.
836.575 Schedule of work progress.
836.576 Supplementary labor standards provisions.
836.577 Worker's compensation.
836.578 Changes--supplement.
836.579 Special notes.
Subpart 836.6--Architect-Engineer Services
836.602 Selection of firms for architect-engineer contracts.
836.602-1 Selection criteria.
836.602-2 Evaluation boards.
836.602-4 Selection authority.
836.602-5 Short selection process for contracts not to exceed the
simplified acquisition threshold.
836.603 Collecting data on and appraising firms qualifications.
836.606 Negotiations.
836.606-70 General.
836.606-71 Architect-engineer's proposal.
836.606-72 Contract price.
836.606-73 Application of 6 percent architect-engineer fee
limitation.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 836.2--Special Aspects of Contracting for Construction
836.202 Specifications.
(a) The procedures described in Part 811 are applicable to
construction specifications.
(b) During the design stage, contract architect-engineers must not
use ``brand name or equal'' or other restrictive specifications without
the prior written approval of the contracting officer. The contracting
officer must inform prospective architect-engineers of this requirement
during the negotiation phase, prior to award of a contract for design.
(c) If VA has determined that only one product will meet the
Government's minimum needs and VA will not allow the submission of
``equal'' products, the contracting officer must include the clause
found at 852.236-90, Restriction on Submission and Use of Equal
Products, in the solicitation and complete the clause by listing the
items to which the clause applies. This clause places bidders on notice
that the ``brand name or equal'' provisions of the clause found at FAR
52.236-5, Materials and Workmanship, and any other provision that may
authorize the submission of an ``equal'' product, will not apply to the
specific items listed.
836.203 Government estimate of construction costs.
The overall amount of the Government estimate must not be disclosed
until after award of the contract. After award, the contracting officer
may disclose the overall amount upon request.
836.204 Disclosure of the magnitude of construction projects.
In lieu of the estimated price ranges described in FAR 36.204, the
contracting officer must identify the magnitude of a VA project in
advance notices and solicitations in terms of one of the following
price ranges:
(a) Less than $25,000.
(b) Between $25,000 and $100,000.
(c) Between $100,000 and $250,000.
(d) Between $250,000 and $500,000.
(e) Between $500,000 and $1,000,000.
(f) Between $1,000,000 and $2,000,000.
(g) Between $2,000,000 and $5,000,000.
(h) Between $5,000,000 and $10,000,000.
(i) Between $10,000,000 and $20,000,000.
(j) Between $20,000,000 and $50,000,000.
(k) Between $50,000,000 and $100,000,000.
(l) More than $100,000,000.
836.206 Liquidated damages.
The contracting officer may include a liquidated damages provision
in a construction contract when the criteria of FAR 11.501 and 811.501
are met. If partial performance may be accepted and used to the
advantage of the Government, the contracting officer must include the
clause substantially as set forth in 852.211-74, Liquidated Damages, in
addition to the clause set forth in FAR 52.211-12.
836.209 Construction contracts with architect-engineer firms.
(a) When the contracting officer considers it necessary or
advantageous to award a contract for construction of a design-bid-build
project, as defined at FAR 36.102, to a firm or person that designed
the project, the contracting officer must request prior approval from
one of the following:
(1) The facility or VISN director, as appropriate, or, for National
Cemetery Administration contracts, the Director, Technical Support
Service, for contracts involving nonrecurring maintenance (NRM) funds.
(2) The Director, Office of Construction and Facilities Management,
for contracts involving construction funds.
(b) The contracting officer must furnish complete justification in
the request.
(c) This section does not apply to design-build contracts, as
defined at FAR 36.102.
836.213 Special procedures for sealed bidding in construction
contracting.
836.213-4 Notice of award.
The contracting officer must provide to the contractor a notice of
award (letter of acceptance) for any contract award in excess of
$25,000.
836.213-70 Notice to proceed.
(a) The contracting officer must provide construction contractors
with a written notice to proceed for the work. A notice to proceed will
normally be sent only after the contractor has provided performance and
payment bonds or payment protection and the completed contract forms,
where applicable, and the contracting officer has accepted them. If the
urgency of the work or other proper reason requires the contractor to
begin work immediately, the contracting officer may include in the
award letter a notice to proceed, with the reservation that payments
are contingent upon receipt and approval of the required bonds or
payment protection.
(b) If the contract provides for liquidated damages, the
contracting officer must send the notice to proceed by certified mail,
return receipt requested, or any other method that provides signed
evidence of receipt. The notice to proceed will advise the contractor
that the work must be completed within ---- (insert contract time for
completion) calendar days from the date of receipt shown on the
certified mail receipt card returned by the post office or on the proof
of delivery provided by the delivery service.
(c) If the contract does not provide for liquidated damages,
certified mail is not required. In notices to proceed for these
contracts, the contracting officer must establish a date for completion
that takes into consideration the time required for the notice to
arrive by regular mail.
(d) At the time the notice to proceed is sent to the contractor,
the contracting officer must furnish a copy to the resident engineer or
the Chief, Engineering Service.
(e) The contracting officer must file a copy of the notice to
proceed with copy A of the contract. When certified mail or other
method of certified delivery is used, the contracting officer must
attach the certified mail receipt card returned by the post office or
the proof of delivery provided by the delivery service to the copy of
the notice to proceed. The contracting officer must file copies of the
notice to proceed with copies C and D of the contract after the
[[Page 2761]]
date of receipt has been established and indicated on the notice to
proceed.
Subpart 836.5--Contract Clauses
836.500 Scope of subpart.
(a) The clauses and provisions prescribed in this subpart are set
forth for use in fixed-price construction contracts in addition to
those in FAR Subpart 52.2.
(b) Additional clauses and provisions not inconsistent with those
in FAR Subparts 36.5 and 52.2 and those prescribed in this subpart are
authorized when determined necessary or desirable by the contracting
officer, and when approved as provided in Subpart 801.4.
(c) Clauses and provisions that differ from those contained in FAR
Subparts 36.5 and 52.2 and this subpart, but considered essential to
the procurement of VA requirements, shall not be used unless the
deviation procedure set forth in Subpart 801.4 has been complied with.
836.501 Performance of work by the contractor.
The contracting officer shall insert the clause at 852.236-72,
Performance of work by the contractor, in solicitations and contracts
for construction that contain the FAR clause at 52.236-1, Performance
of Work by the Contractor. When the solicitations or contracts include
a section entitled ``Network Analysis System (NAS),'' the contracting
officer must use the clause with its Alternate I.
836.513 Accident prevention.
The contracting officer must insert the clause at 852.236-87,
Accident Prevention, in solicitations and contracts for construction
that contain the clause at FAR 52.236-13, Accident Prevention.
836.521 Specifications and drawings for construction.
The contracting officer shall insert the clause at 852.236-71,
Specifications and drawings for construction, in solicitations and
contracts for construction that include the FAR clause at 52.236-21,
Specifications and Drawings for Construction.
836.570 Correspondence.
The contracting officer shall insert the clause at 852.236-76,
Correspondence, in solicitations and contracts for construction
expected to exceed the micro-purchase threshold for construction
(currently $2,000).
836.571 Reference to ``standards.''
The contracting officer shall insert the clause at 852.236-77,
Reference to ``standards,'' in solicitations and contracts for
construction expected to exceed the micro-purchase threshold for
construction.
836.572 Government supervision.
The contracting officer shall insert the clause at 852.236-78,
Government supervision, in solicitations and contracts for construction
expected to exceed the micro-purchase threshold for construction.
836.573 Daily report of workers and materials.
The contracting officer shall insert the clause at 852.236-79,
Daily report of workers and materials, in solicitations and contracts
for construction expected to exceed the simplified acquisition
threshold. The contracting officer may, when in the best interest of
the Government, insert the clause in solicitations and contracts for
construction when the contract amount is expected to be at or below the
simplified acquisition threshold.
836.574 Subcontracts and work coordination.
The contracting officer shall insert the clause at 852.236-80,
Subcontracts and work coordination, in solicitations and contracts for
construction expected to exceed the micro-purchase threshold for
construction. When the solicitations or contracts are for new
construction work with complex mechanical-electrical work, the
contracting officer may use the clause with its Alternate I.
836.575 Schedule of work progress.
The contracting officer shall insert the clause at 852.236-84,
Schedule of work progress, in solicitations and contracts for
construction that are expected to exceed the micro-purchase threshold
for construction and that do not contain a section entitled ``Network
Analysis System (NAS).''
836.576 Supplementary labor standards provisions.
The contracting officer shall insert the clause at 852.236-85,
Supplementary labor standards provisions, in solicitations and
contracts for construction that are expected to exceed the micro-
purchase threshold for construction.
836.577 Workers' compensation.
The contracting officer shall insert the clause at 852.236-86,
Workers' compensation, in solicitations and contracts for construction
that are expected to exceed the micro-purchase threshold for
construction.
836.578 Changes--supplement.
(a) The contracting officer shall insert the clause at 852.236-88,
Contract changes--supplement, in solicitations and contracts for
construction that are expected to exceed the micro-purchase threshold
for construction. (This section has been promulgated as a deviation
from the FAR as provided in 801.4.)
(b) When negotiated changes exceed $500,000, paragraph (a) of the
clause at 852.236-88 will apply. Because paragraph (a) does not provide
ceiling rates for indirect expenses, the contractor must furnish cost
breakdowns and other supporting data on its rates for indirect expenses
as part of its price proposal. The contracting officer must negotiate
the rates for indirect expenses with the contractor and may request an
audit in accordance with FAR 15.404-2.
(c) When the negotiated change will be $500,000 or less, paragraph
(b) of the clause at 852.236-88 will apply. Because the indirect cost
rates in paragraph (b) of the clause at 852.236-88 are ceiling rates,
the contracting officer must negotiate indirect expense rates within
the ceiling limitations.
836.579 Special notes.
The contracting officer shall insert the clause at 852.236-91,
Special notes, in solicitations and contracts for construction that are
expected to exceed the micro-purchase threshold for construction.
Subpart 836.6--Architect-Engineer Services
836.602 Selection of firms for architect-engineer contracts.
836.602-1 Selection criteria.
(a) In addition to the evaluation criteria set forth in FAR 36.602-
1, the evaluation board must consider the factors set forth in
paragraph (b) of this section as they apply to the project or purpose
of the selection. Values must be assigned to each factor in determining
the relative qualifications of the firms identified as qualified
through the pre-selection process. The board may adjust the assigned
values after its discussions.
(b) The following factors must be considered:
(1) Reputation and standing of the firm and its principal officials
with respect to professional performance, general management, and
cooperativeness.
(2) Record of significant claims against the firm because of
improper or incomplete architectural and engineering services.
(3) Specific experience and qualifications of personnel proposed
for
[[Page 2762]]
assignment to the project and their record of working together as a
team.
836.602-2 Evaluation boards.
(a) The Director, Office of Construction and Facilities Management,
shall appoint an evaluation board to select architect-engineer
contractors for Office of Construction and Facilities Management
projects. The Director, Office of Construction and Facilities
Management, shall appoint an evaluation board to select architect-
engineer contractors for National Cemetery Administration projects. The
facility or VISN director, as appropriate, shall appoint an evaluation
board to select architect-engineer contractors for field facility
projects.
(b) The Director, A/E Evaluation and Program Support Service, will
chair the evaluation board for Office of Construction and Facilities
Management architect-engineer contracts. The Chair may designate the
Project Director or Project Manager to act as Chair when necessary.
When appointing the board's members, the Director, Office of
Construction and Facilities Management, must include the appropriate
Project Manager and as many qualified professional architects or
engineers from the Office of Construction and Facilities Management
technical services as may be considered appropriate for the particular
project. The Director, Office of Construction and Facilities Management
may designate additional members from the Office of Construction and
Facilities Management or from other Department administrations and
staff offices when appropriate.
(c) The Director, Office of Construction and Facilities Management,
shall ensure that the board consists of no fewer than three members,
one of whom must be a National Cemetery Administration senior level
contracting officer. The Director shall designate one of the board
members as the Chair.
(d) The evaluation board for a VA field facility must consist of no
fewer than two members, one of whom will be the HCA (or the senior
contracting officer at the facility if there is no HCA on site) and the
other will be the Chief, Engineering Service, or their alternates.
Where a facility has two or more engineers on its staff, the facility
or VISN director must appoint an additional engineer to the board. The
Chair of the board will be the senior engineer.
836.602-4 Selection authority.
The Director, Office of Construction and Facilities Management (for
Central Office contracts), the Director, Office of Construction
Management (for National Cemetery Administration contracts), and the
facility or VISN director (for field facility contracts), as
appropriate, or persons acting in those capacities, are designated as
the approving officials for the recommendations of the respective
evaluation boards.
836.602-5 Short selection process for contracts not to exceed the
simplified acquisition threshold.
Either of the procedures provided in FAR 36.602-5 may be used to
select firms for architect-engineer contracts that are not expected to
exceed the simplified acquisition threshold.
836.603 Collecting data on and appraising firms qualifications.
The Director, Office of Construction and Facilities Management, for
Central Office; the Director, Office of Construction Management, for
National Cemetery Administration; and the Chief, Engineering Service,
for field facilities, are responsible for collecting Standard Forms 330
and maintaining a data file on architect-engineer qualifications.
836.606 Negotiations.
836.606-70 General.
To assure that the fee limitation is not violated, the contracting
officer must maintain suitable records to be able to isolate the amount
in the total fee to which the 6-percent limitation applies.
836.606-71 Architect-engineer's proposal.
(a) When the contract price is estimated to be $50,000 or more, the
contracting officer must use VA Form 10-6298, Architect-Engineer Fee
Proposal, to obtain the proposal and supporting cost data from the
proposed contractor and subcontractor in the negotiation of an
architect-engineer contract for design services.
(b) In obtaining architect-engineer services for research study,
seismic study, master planning study, construction management and other
related services contracts, the contracting officer must use VA Form
10-6298 supplemented or modified as needed for the particular project
type.
836.606-72 Contract price.
(a) Where negotiations with the top-rated firm are unsuccessful,
the contracting officer shall, after authorization by the Director,
Office of Construction and Facilities Management, the Director, Office
of Construction Management, or the facility or VISN director, as
appropriate, terminate the negotiations and undertake negotiations with
the firm next in order of preference.
(b) The contracting officer shall submit a recommendation for award
of the contract at the negotiated fee to the Director, Office of
Construction and Facilities Management, the Director, Office of
Construction Management, or the facility or VISN director, as
appropriate. A copy of the negotiation memorandum prepared in
accordance with FAR 15.406-3 and, whenever a field pricing report has
been received, a copy of the report must accompany the recommendation.
836.606-73 Application of 6 percent architect-engineer fee limitation.
(a) The total cost of the architect or engineer services contracted
for must not exceed 6 percent of the estimated cost of the construction
project plus any fees for related services and activities such as those
shown in paragraph (c) of this section.
(b) To support project submissions, the engineering officer or
project engineer must use VA Form 10-1193, Application for Health Care
Facility Project, and Form 10-6238, EMIS Construction Program Estimate
Worksheet, and must show the proposed technical services where
necessary and applicable.
(c) The 6 percent fee limitation does not apply to the following
architect or engineer services:
(1) Investigative services including but not limited to:
(i) Determination of program requirements, including schematic or
preliminary plans and estimates;
(ii) Determination of feasibility of proposed project;
(iii) Preparation of measured drawings of existing facility;
(iv) Subsurface investigation;
(v) Structural, electrical, and mechanical investigation of
existing facility; and
(vi) Surveys: topographic, boundary, utilities, etc.
(2) Special consultant services that are not normally available in
organizations of architects or engineers and that are not specifically
applied to the actual preparation of working drawings or specifications
of the project for which the service are required.
(3) Other:
(i) Reproduction of approved designs through models, color
renderings, photographs, or other presentation media;
(ii) Travel and per diem allowances other than those required for
the development and review of working drawings and specifications;
[[Page 2763]]
(iii) Supervision or inspection of construction, review of shop
drawings or samples, and other services performed during the
construction phase; and
(iv) All other services that are not an integral part of the
production and delivery of plans, designs, and specifications.
(4) The cost of reproducing drawings and specifications for bidding
and their distribution to prospective bidders and plan file rooms.
PART 837--SERVICE CONTRACTING
Subpart 837.1--Service Contracts--General
Sec.
837.103 Contracting officer responsibility.
837.110 Solicitation provisions and contract clauses.
837.110-70 Services provided to eligible beneficiaries.
Subpart 837.2--Advisory and Assistance Services
837.203 Policy.
Subpart 837.4--Nonpersonal Health Care Services
837.403 Contract clause.
Subpart 837.70--Mortuary Services
837.7001 General.
837.7002 List of qualified funeral directors.
837.7003 Funeral authorization.
837.7004 Administrative necessity.
837.7005 Unclaimed remains--all other cases.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
Subpart 837.1--Service Contracts--General
837.103 Contracting officer responsibility.
When the contracting officer determines that legal assistance is
necessary in determining whether a proposed service contract is for
personal or non-personal services, the contracting officer will request
a legal opinion from the appropriate Regional Counsel.
837.110 Solicitation provisions and contract clauses.
The contracting officer shall insert the clause at 852.237-70
Contractor responsibilities, in solicitations and contracts for
services.
837.110-70 Services provided to eligible beneficiaries.
Contracting officers shall include the clause at 852.271-70,
Nondiscrimination in services provided to beneficiaries, in all
solicitations and contracts covering services provided to eligible
beneficiaries.
Subpart 837.2--Advisory and Assistance Services
837.203 Policy.
The definition of advisory and assistance services includes, in
addition to examples listed in FAR 37.203, services to obtain peer
review of research proposals.
Subpart 837.4--Nonpersonal Health Care Services
837.403 Contract clause.
The contracting officer shall insert the clause at 852.237-7,
Indemnification and medical liability insurance, in lieu of FAR Clause
52.237-7, in solicitations and contracts for nonpersonal health-care
services, including contracts awarded under the authority of 38 U.S.C.
7409, 38 U.S.C. 8151-8153, and part 873. The contracting officer may
include the clause in bilateral purchase orders for nonpersonal health-
care services awarded under the procedures in FAR Part 13 and Part 813.
Subpart 837.70--Mortuary Services
837.7001 General.
This subpart establishes the policies and procedures governing the
procurement of funeral and burial services for deceased beneficiaries
of VA, as provided in 38 U.S.C. 2302, 2303, and 2308.
837.7002 List of qualified funeral directors.
Contracting officers will establish, in coordination with cognizant
Chief, Medical Administration Service (MAS) personnel or other
personnel designated by the facility director to perform these
functions, a list of funeral directors capable of performing the burial
services specified in 837.7003. The contracting officer will attempt to
establish a commitment to perform these services within the statutory
limitation of $300 (see 38 U.S.C. 2302). Each funeral director must be
fully licensed in the jurisdiction in which the business operates. If
there has been no prior experience with the funeral director that would
ensure the adequacy of the funeral director's services and casket,
arrangements will be made before contract negotiation to inspect the
premises and the casket to be provided, as well as to check with the
local business bureau and/or Chamber of Commerce. (38 U.S.C. 2302)
837.7003 Funeral authorization.
(a) When a veteran dies while receiving care in a VA health care
facility or in a non-VA institution at VA's expense, and the decedent's
remains are unclaimed, the Chief, MAS, or the person designated by the
facility director to perform these functions, will forward to the HCA a
properly executed VA form 10-2065, Funeral Arrangements, requesting
that funeral and burial services for the deceased be procured.
(b) The contracting officer will enter into negotiations with local
funeral directors to procure a complete funeral and burial service
within the statutory allowance of $300. The purchase order must list
the specific services to be provided. The services must consist of the
following:
(1) Preparation of the body, embalming.
(2) Clothing.
(3) Casket. (The casket, at a minimum, must be constructed from
thick, strong particle board and must be of sufficient strength to
support the weight of an adult human body. Cardboard or press paper or
similar materials are not acceptable.)
(4) The securing of all necessary permits.
(5) Ensuring that a United States flag (provided the funeral
director in accordance with M-1, Part I, paragraph 14.40) accompanies
the casket to the place of burial.
(c) An additional allowance for transportation of the body to the
place of burial is provided in 38 U.S.C. 2308. This allowance will
cover the transportation cost of shipment of the body by common carrier
or by hearse from the VA facility to the funeral home and to the place
of burial, any charges for an outside shipping box, and the charges for
securing all necessary permits for removal or shipment of the body.
These costs are not chargeable against the $300 allowance.
(d) In accordance with M-1, Part I, paragraph 14.37, the
contracting officer will designate the Chief, MAS, or the person
designated by the facility director to perform these functions, to be
responsible for the medical inspection of the mortuary services
performed and inspection of the merchandise furnished. This designee
will also be responsible for certifying receipt on the receiving
report.
(e) The HCA will assist the Chief, MAS, or the person designated by
the facility director to perform these functions, in developing the
local procedures specified in M-1, Part I, paragraph 14.37c. (38 U.S.C.
2302, 2303, and 2308)
837.7004 Administrative necessity.
(a) VA may make arrangements and assume expenses for local burial
under separate contractual agreement when:
[[Page 2764]]
(1) A person dies under VA care who is not legally entitled to such
care at VA's expense;
(2) No relatives or friends claim the remains; and
(3) The municipal, county, or State officials refuse to provide for
final disposition.
(b) When the contracting officer cannot obtain a full and complete
funeral and burial service as prescribed in 837.7003 within the
statutory allowance, before taking any further action, the contracting
officer will secure from the facility or VISN director, as appropriate,
a written determination that VA must accomplish the disposition of the
remains as an administrative necessity. The facility director will also
authorize in writing the expenditure of such additional funds as may be
necessary for this purpose.
(c) The contracting officer will make the facility director's
determination and authorization a part of the contract file. (38 U.S.C.
2302)
837.7005 Unclaimed remains--all other cases.
Requests for information on the disposition of the unclaimed
remains of a veteran whose death occurs while not under the direct care
or treatment of VA will be referred to the Veterans Services Officer
for processing in accordance with M27-1, Part II.
PART 841--ACQUISITION OF UTILITY SERVICES
Subpart 841.1--General
Sec.
841.100 Scope of part.
841.103 Statutory and delegated authority.
Subpart 841.2--Acquiring Utility Services
841.201 Policy.
Authority: 40 U.S.C. 121(c) and (d); and 48 CFR 1.301-1.304.
Subpart 841.1--General
841.100 Scope of part.
This part prescribes procedures for obtaining delegations of
authority to award contracts for utility connection charges and
provides guidance on review requirements for such proposed contracts.
841.103 Statutory and delegated authority.
(a) The Assistant Commissioner for Procurement, General Services
Administration (GSA), has delegated the Secretary of Veterans Affairs
authority to enter into public utility contracts for connection charges
for utility services.
(b) Except as provided in paragraph (a) of this section, the
authority to award all other contracts for utility services, as defined
in FAR 41.101, is vested in GSA (see FAR 41.103). VA contracting
officers who wish to award local contracts for utility services, other
than for connection charges, must first obtain a delegation of
authority to award such contracts from GSA. Contracting officers shall
submit requests for delegation of authority directly to GSA.
(c) Any authority described in paragraphs (a) or (b) of this
section delegated to the Secretary is further delegated to the SPE and
is further delegated to the DSPE and to VA contracting officers within
the limits of their warrants.
Subpart 841.2--Acquiring Utility Services
841.201 Policy.
As required by 801.602-71, contracting officers must submit
solicitations and proposed agreements for utility services exceeding
$50,000 in total costs to the appropriate Acquisition Resources Service
office for technical and legal review.
SUBCHAPTER G--CONTRACT MANAGEMENT
PART 842--CONTRACT ADMINISTRATION AND AUDIT SERVICES
Sec.
842.000 Scope of part.
842.070 Definitions.
Subpart 842.1--Contract Audit Services
842.101 Contract audit responsibilities.
842.102 Assignment of contract audit services.
Subpart 842.7--Indirect Cost Rates
842.705 Final indirect cost rates.
Subpart 842.8--Disallowance of Costs
842.801 Notice of intent to disallow costs.
842.801-70 Audit assistance prior to disallowing costs.
842.803 Disallowing costs after incurrence.
Subpart 842.12--Novation and Change-of-Name Agreements
842.1203 Processing agreements.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
842.000 Scope of part.
This part applies to all contracts, whether awarded through sealed
bidding or negotiation.
842.070 Definitions.
Contract administration is the coordination of actions required for
the performance of a contract. This includes the contracting officer's
guidance and supervision necessary to assure that the contractor
fulfills all contractual obligations.
Subpart 842.1--Contract Audit Services
842.101 Contract audit responsibilities.
(a) Contracting officers may use the support services of other
agencies to the extent feasible. Examples of such services include:
pre-award surveys; quality assurance and technical inspection of
contract items; and review of contractors' procurement systems.
Contracting officers obtaining support services from any other
Government department or agency must do so on the basis of an approved
negotiated interagency support agreement.
(b) An interagency support agreement is a written instrument of
understanding between the parties to the agreement. The agreement
should clearly state the following:
(1) The accord reached between the two parties involved, especially
the obligations assumed and the rights granted each party.
(2) The resources that both the supplying and receiving parties
will provide.
(3) The funding and reimbursement arrangements.
(4) Clauses permitting revisions, modifications, or cancellation of
the agreement.
842.102 Assignment of contract audit services.
(a) When required, contracting officers shall request the
assistance of the VA Office of the Inspector General (OIG), Office of
Contract Review, to provide pre- and post-award audit, review, and
advisory services associated with the award or modification of:
(1) Federal Supply Schedule and other contracts awarded by the VA
National Acquisition Center;
(2) Scarce medical specialist or sharing contracts awarded under
the authority of 38 U.S.C. 7409 or 8153, and;
(3) Claims involving such contracts.
(b) Contracting officers may request the assistance of either the
VA OIG Office of Contract Review or the Defense Contract Audit Agency
(DCAA) to provide pre- and post-award audit, review, and advisory
services associated with other types of contracts or claims.
Subpart 842.7--Indirect Cost Rates
842.705 Final indirect cost rates.
(a) Except when the quick-closeout procedures described in FAR
42.708 are used, contracting officers must request audits on proposed
final indirect cost rates and billing rates for use in cost
[[Page 2765]]
reimbursement, fixed-price incentive, and fixed-price redeterminable
contracts as prescribed in FAR Subpart 42.7.
(b) When the quick closeout procedures are used, the contracting
officers must perform a review and validation of the contractor's data
for accuracy and reasonableness of the proposed rates for negotiating
the settlement of indirect costs for a specific contract.
Subpart 842.8--Disallowance of Costs
842.801 Notice of intent to disallow costs.
842.801-70 Audit assistance prior to disallowing costs.
If a contracting officer determines that costs should be disallowed
during the performance of a cost reimbursement, fixed-price incentive,
or fixed-price redetermination contract exceeding the thresholds
specified in FAR 15.403-4, the contracting officer must request audit
assistance. The VA OIG shall conduct audits of contracts for health
care resources and contracting officers shall request such audits
directly from that office. For all other types of contracts, the
contracting officer must obtain an audit control number from
Acquisition Resources Service and send a formal request to conduct the
audit directly to the nearest Defense Contract Audit Agency (DCAA)
office, referencing the audit control number and the project number (if
any).
842.803 Disallowing costs after incurrence.
Contracting officers may approve or disapprove contractors'
vouchers for payment and process them to the servicing fiscal office.
Such approval or disapproval must be within the limitations of the
contracting officer's warrant and the contract for which the voucher is
submitted must be within the contracting officer's delegation of
contracting authority.
Subpart 842.12--Novation and Change-of-Name Agreements
842.1203 Processing agreements.
Before execution of novation and change-of-name agreements,
contracting officers must submit all supporting agreements and
documentation to the OGC for review as to legal sufficiency.
PART 846--QUALITY ASSURANCE
Subpart 846.3--Contract Clauses
Sec.
846.302 Fixed-price supply contracts.
846.302-70 Guarantee clause.
846.302-71 Inspection.
846.302-72 Frozen processed foods.
846.302-73 Noncompliance with packaging, packing and/or marking
requirements.
846.312 Construction contracts.
Subpart 846.4--Government Contract Quality Assurance
846.408 Single-agency assignments of Government contract quality
assurance.
846.408-70 Inspection of subsistence.
846.408-71 Waiver of USDA inspection and specifications.
846.470 Use of commercial organizations for inspections and grading
services.
846.471 Determination authority.
846.472 Inspection of repairs for properties under the Loan Guaranty
and Direct Loan Programs.
846.472-1 Repairs of $1,000 or less.
846.472-2 Repairs in excess of $1,000.
Subpart 846.7--Warranties
846.710 Contract clauses.
846.710-70 Special warranties.
846.710-71 Warranty for construction--guarantee period services.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
Subpart 846.3--Contract Clauses
846.302 Fixed-price supply contracts.
846.302-70 Guarantee clause.
(a) The contracting officer shall insert the clause at 852.246-70,
Guarantee, in solicitations for the acquisition of equipment.
(b) If it is industry policy to furnish, but not install,
replacement material and parts at the contractor's expense, the last
sentence of the clause at 852.248-70 will be changed to indicate that
cost of installation shall be borne by the Government. Where it is
industry policy to guarantee components for the life of the equipment
(e.g., crystals in transmitters and receivers in radio communications
systems) or to require that highly technical equipment be returned to
the factory (at the contractor's or the Government's expense) for
replacement of defective materials or parts, then the clause will be
revised to be compatible with such policy.
846.302-71 Inspection.
The contracting officer shall include a ``Rejected Goods'' contract
clause in solicitations and contracts as follows:
(a) Except as provided in paragraph (b) of this section, insert the
clause at 852.246-71, Inspection, in solicitations and contracts for
the acquisition of supplies or equipment.
(b) In solicitations and contracts for packing house and dairy
products, bread and bakery products, and for fresh and frozen fruits
and vegetables, insert the Alternate I clause at 852.246-71,
Inspection.
846.302-72 Frozen processed foods.
The contracting officer shall insert the clause at 852.246-72,
Frozen processed foods, in solicitations and contracts for frozen
processed foods.
846.302-73 Noncompliance with packaging, packing and/or marking
requirements.
The contracting officer shall insert the clause at 852.246-73,
Noncompliance with packaging, packing, and/or marking requirements, in
non-commercial item solicitations and contracts for supplies or
equipment where there are special packaging, packing and/or marking
requirements. The clause may be used in commercial item acquisitions if
a waiver is approved in accordance with FAR 12.302(c) and 812.302.
846.312 Construction contracts.
The contracting officer shall insert the clause at 852.236-74,
852.236-74, Inspection of construction, in solicitations and contracts
for construction that include the FAR clause at 52.246-12, Inspection
of Construction.
Subpart 846.4--Government Contract Quality Assurance
846.408 Single-agency assignments of Government contract quality
assurance.
846.408-70 Inspection of subsistence.
(a) Before issuing a solicitation for subsistence, the contracting
officer must determine whether:
(1) Representatives of the U.S. Department of Agriculture (USDA) or
the Department of Commerce will inspect for specification compliance
before shipment; or
(2) Personnel of the purchasing activity will inspect for
specification compliance at the time of delivery.
(b) The contracting officer must indicate the time and place of
inspection in the solicitation.
(c) Because the requirement for USDA or Department of Commerce
inspections and certifications result in additional contractor costs
that may be ultimately reflected in bid prices, the contracting
officer, in consultation with the Chief, Nutrition and Food Service,
must evaluate the need for such inspections. The evaluation must
include the following:
(1) The quality assurance already provided by other mandatory
inspection systems.
(2) The proposed suppliers' own quality control system.
(3) Experience with the proposed suppliers.
(4) The pre-qualifying of the suppliers' quality assurance systems
[[Page 2766]]
and subsequently waiving inspections and certifications for future
solicitations.
(5) The cost of the inspections.
(d) When the contracting officer indicates that either the USDA or
the Department of Commerce will conduct the inspection, the contracting
officer must also provide in the solicitation that the contractor is
responsible for all of the following:
(1) Arranging and paying for inspection services.
(2) Obtaining from the inspectors a certificate indicating that the
product complies with specifications.
(3) Assuring that the certificate, or copy, accompanies the
shipment or is furnished to the receiving installation before shipment,
or notifying the installation when the certificate is not immediately
available.
(4) Seeing that acceptable products are covered by an inspection
agency checkloading certificate or stamped by the inspector as
prescribed by the contracting officer.
(5) Furnishing samples for inspection at the contractor's expense.
(6) Indicating the address where inspection will occur.
(e) The contracting officer must furnish a copy of the purchase
document to the inspecting activity.
846.408-71 Waiver of USDA inspection and specifications.
(a) When the amount of an item to be purchased will not exceed 500
pounds per delivery, the contracting officer may purchase the following
without reference to the specifications in Part IV of the Federal
Supply Catalog, Stock List, FSC Group 89, Subsistence, Publication No.
C8900-SL, and the USDA inspection requirements:
(1) Butter.
(2) Cheese (except cottage cheese).
(3) Sausage.
(4) Meat food products*.
(5) Bacon, smoked.
(6) Bacon, Canadian style.
(b) When the items listed in paragraph (a) of this section are
procured together with items that are not exempt, the contracting
officer must include the following in the solicitation:
Items * * * are not required to be in accordance with the
specifications contained in Part IV of the Federal Supply Catalog,
Stock List, FSC Group 89, Subsistence, Publication No. C8900-SL, and
the special USDA inspection is not required. VA will inspect for
quality and condition upon delivery at destination. These items are,
however, subject to the quality controls stated herein.
(c) As appropriate, the contracting officer must include the
following statements in each invitation for bid, request for proposal,
quotation, or purchase order:
(1) Butter. This product must be graded by the USDA and labeled
``Grade A'' or the grade specified herein.
(2) Sausage and meat food products.*
(i) This product must be a high commercial product and must have
been prepared in a federally inspected plant and bear the USDA
establishment number stamp evidencing that it is sound, healthful,
wholesome, and fit for human consumption; and
(ii) This product must bear a label complying with the Federal
Food, Drug and Cosmetic Act that requires the listing of all
ingredients in the order of their predominance.
(3) Bacon, smoked; and bacon, Canadian style. This product must be
a high commercial product and must have been prepared in a federally
inspected plant and bear the USDA establishment number stamp evidencing
that it is sound, healthful, wholesome, and fit for human consumption.
(d) When using a ``brand name or equal'' purchase description, the
contracting officer must list every brand name item that is known to be
acceptable and available in the area.
* ``Meat food products'' means processed foods containing meat
in substantial proportion and other listed ingredients including
seasoning, e.g., frankfurters, coldcuts. Whole or prefabricated
meats, e.g., pork chops, hamburger, are considered meats, not meat
food products.
846.470 Use of commercial organizations for inspections and grading
services.
The contracting officer may use a commercial organization for
inspection and grading services when the contracting officer determines
that all of the following conditions exist:
(a) The results of a technical inspection or grading are dependent
upon the application of scientific principles or specialized
techniques.
(b) VA is unable to employ the personnel qualified to properly
perform the services and is unable to locate another Federal agency
capable of providing the service.
(c) The inspection or grading results issued by a private
organization are essential to verify the acceptance or rejection of a
special commodity.
(d) The services may be performed without direct Government
supervision.
846.471 Determination authority.
The following officials must make the determinations required in
846.470:
(a) The Director, Office of Construction and Facilities Management,
for those items and services for which purchase authority has been
assigned to the Office of Construction and Facilities Management.
(b) The Director, Veterans Canteen Service, for those items and
services purchased, or contracted for, by the Veterans Canteen Service
(except those items purchased from VA supply sources).
(c) The DSPE for all other supplies, equipment, and services.
846.472 Inspection of repairs for properties under the Loan Guaranty
and Direct Loan Programs.
As provided in 846.472-1 and 846.472-2, management brokers or
qualified fee or staff inspectors must conduct a final inspection of
all repair programs upon completion. In addition, the broker or
inspector must conduct intermediate or progress inspections on
extensive or technical jobs as specified in the contract.
846.472-1 Repairs of $1,000 or less.
(a) Generally, the management broker must make any required
inspections for repairs of $1,000 or less. A qualified fee or staff
inspector must make any required inspection for repairs of $1,000 or
less if the contracting officer:
(1) Has not assigned the property to a management broker; or,
(2) Has determined that the nature of the repairs requires
supervision by a technician.
(b) There is no form prescribed for inspection of repairs of $1,000
or less, but the inspector may use VA Form 26-1839, Compliance
Inspection Report. Regardless of the form in which the report is
submitted, the inspector must identify the contractor, property, and
the repair program and provide sufficient detail to enable the
contracting officer to make a determination that the work is being
performed satisfactorily or completed in accordance with the terms of
the contract.
846.472-2 Repairs in excess of $1,000.
(a) A qualified fee or staff inspector must make the final
inspection and any intermediate or progress inspections on repairs
exceeding $1,000.
(b) The inspector must make the report of inspection on VA Form 26-
1839, Compliance Inspection Report. The inspector must identify the
property, contractor, and repair program and provide sufficient
detailed information to enable the contracting officer to make a
determination that the work is being performed satisfactorily or that
it has been completed in accordance with the terms of the
[[Page 2767]]
contract. The inspector must itemize any deficiencies and explain the
deficiencies in detail.
Subpart 846.7--Warranties
846.710 Contract clauses.
The contracting officer shall insert the clause at FAR 52.246-21,
Warranty of Construction, in solicitations and contracts for
construction that are expected to exceed the micro-purchase threshold.
846.710-70 Special warranties.
The contracting officer shall insert the clause at 852.246-74,
Special warranties, in solicitations and contracts for construction
that include the FAR clause at 52.246-21, Warranty of Construction.
846.710-71 Warranty for construction--guarantee period services.
The contracting officer shall insert the clause at 852.246-75,
Warranty of construction--guarantee period services, in solicitations
and contracts for construction that include the FAR clause at 52.246-
21, Warranty of Construction, and that also include guarantee period
services.
PART 847--TRANSPORTATION
Subpart 847.3--Transportation in Supply Contracts
Sec.
847.303 Standard delivery terms and contract clauses.
847.303-1 F.o.b. origin.
847.303-70 F.o.b. origin, freight prepaid, transportation charges to
be included on the invoice.
847.305 Solicitation provisions, contract clauses, and
transportation factors.
847.305-70 Potential destinations known but quantities unknown.
847.306 Transportation factors in the evaluation of offers.
847.306-70 Transportation payment and audit.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 847.3--Transportation in Supply Contracts
847.303 Standard delivery terms and contract clauses.
847.303-1 F.o.b. origin.
Shipments falling within this category must be shipped on a bill of
lading, except as provided in 41 CFR 102-118.40. Contracting officers
must comply with 41 CFR Parts 102-117 and 102-118. Contact the Traffic
Manager for assistance in determining when to issue the applicable bill
of lading (VA Commercial Bill of Lading for domestic use or Government
Bill of Lading for international shipments and domestic off-shore
shipments) and for all freight estimates.
847.303-70 F.o.b. origin, freight prepaid, transportation charges to
be included on the invoice.
(a) The delivery terms will be stated as ``f.o.b. origin,
transportation prepaid, with transportation charges to be included on
the invoice,'' under any of the following circumstances:
(1) When it is determined that an f.o.b. origin purchase or
delivery order will have transportation charges that do not exceed $250
and the occasional exception does not exceed that amount by more than
$50.
(2) Single parcel shipments via express, courier, small package, or
similar carriers, regardless of shipping cost, if the shipped parcel
weighs 70 pounds or less and does not exceed 108 inches in length and
girth combined.
(3) Multi-parcel shipments via express, courier small package, or
similar carriers for which transportation charges do not exceed $250
per shipment.
(b) Orders issued on VA Form & 90-2138, Orders for Supplies or
Services, must identify shipping instructions on the reverse side of
the form. When VA Form 90-2138 is not used, the vendor must do the
following:
(1) Consistent with the terms of the contract, pack, mark, and
prepare shipment in conformance with carrier requirements to protect
the personal property and assure the lowest applicable transportation
charge. Follow package specifications found in the National Motor
Freight Classification 100 Series.
(2) Add transportation charges as a separate item on the invoice.
The invoice must include the following certification: ``The invoiced
transportation charges have been paid and evidence of such payment will
be furnished upon the Government's request.''
(3) Not include charges for insurance or valuation on the invoice
unless the order specifically requires that the shipment be insured or
the value be declared.
(4) Not prepay transportation charges on the order if such charges
are expected to exceed $250. Ship collect and annotate the commercial
bill of lading, ``To be converted to VA Commercial Bill of Lading.''
Contact the VA Traffic Manager for routing instructions and freight
estimate.
(c) Each contracting officer is responsible for:
(1) Obtaining the most accurate estimate possible of transportation
charges.
(2) Using the authority in paragraph (a) of this section only when
consistent with the circumstances in that paragraph.
(d) When, in accordance with FAR Subpart 28.3 and FAR 47.102, a
shipment must be insured or the value declared, the contracting officer
will specifically instruct the vendor to do so on the order when a
written order is used. If the order is oral, the vendor must annotate
all copies of the purchase request to show that the insurance/declared
value was specifically requested.
847.305 Solicitation provisions, contract clauses, and transportation
factors.
847.305-70 Potential destinations known but quantities unknown.
When the VA National Acquisition Center contracts with multiple
bidders to provide items directly to VA field installations on an
f.o.b. origin basis, the evaluation of bids must follow specific
procedures. To place each bid on an equal basis, even though specific
quantities required by each facility cannot be predetermined, the
contracting officer must use an anticipated demand factor in proportion
to the number of hospital beds or patient workload. The clause
prescribed in 852.247-70 must be used in these instances.
847.306 Transportation factors in the evaluation of offers.
847.306-70 Transportation payment and audit.
Transportation payments are audited by the Traffic Manager to
ensure that payment and payment mechanisms for agency transportation
are uniform and appropriate in accordance with 41 CFR part 102-118.
PART 849--TERMINATION OF CONTRACTS
Subpart 849.1--General Principles
Sec.
849.101 Authorities and responsibilities.
849.106 Fraud or other criminal conduct.
849.111 Review of proposed settlements.
849.111-70 Required review.
849.111-71 Submission of information.
Authority: 40 U.S.C. 121(c) and 48 CFR 1.301-1.304.
Subpart 849.1--General Principles
849.101 Authorities and responsibilities.
(a) While legal review and concurrence of the General Counsel is
required prior to a default termination, in some cases where a quick
response is necessary, this review can be expedited by express mailing
or faxing the default
[[Page 2768]]
letter and related documents which are required to make an evaluation
directly to General Counsel (025). The default termination letter
should contain, at a minimum, the following:
(1) The proposed termination (FAR 49.102);
(2) An explanation of what necessitated the default, including the
reasons why the contracting officer considers the contractor to be in
default;
(3) A statement that the factors set forth in FAR 49.402-3(f) have
been fully considered; and
(4) Final decision language and appeal rights.
(b) Contracts containing a mutual termination clause may be
terminated without reference to the General Counsel.
849.106 Fraud or other criminal conduct.
(a) If the contracting officer suspects fraud or other criminal
conduct related to the settlement of a terminated contract, the
contracting officer must do the following:
(1) Immediately discontinue all negotiations.
(2) Submit all of the pertinent facts necessary to support the
suspicions to either of the following:
(i) The DSPE.
(ii) The Director, Office of Construction and Facilities
Management, in the case of contracting officers from the Office of
Construction and Facilities Management.
(3) Follow procedures as provided in 809.406-3 and 809.407-3.
(b) The DSPE or the Director, Office of Construction and Facilities
Management, must review the submission and fully develop the facts.
(c) If the evidence indicates fraud or other criminal conduct, the
DSPE or the Director, Office of Construction and Facilities Management,
must forward the submission with recommendations through channels (to
include OGC, if appropriate), to the Office of the Inspector General
(OIG) for referral to the Department of Justice.
(d) The DSPE or the Director, Office of Construction and Facilities
Management, will advise the contracting officer as to any further
action to be taken. Pending receipt of this advice, no VA employee may
discuss the matter with the contractor.
(e) VA will not initiate a collection, recovery or other settlement
action while the matter is in the hands of the Department of Justice
without first obtaining the concurrence of the U.S. Attorney concerned,
through OIG.
(f) If the contractor makes an inquiry, the contracting officer
will advise only that the proposal has been forwarded to higher
authority.
849.111 Review of proposed settlements.
849.111-70 Required review.
(a) FAR 49.111 requires each agency to establish procedures, when
necessary, for the administrative review of proposed termination
settlements. Contracting officers shall submit proposed termination
settlements or determinations of amounts due the contractor under a
terminated contract that involve the expenditure of $100,000 or more of
Government funds to the Director, Acquisition Program Management
Division, or the Director, Acquisition Assistance Team, as appropriate,
for technical and legal review (see 801.602-72(i)). Contracting
officers shall not execute the settlement agreement or determination
prior to receipt of the technical and legal review. The legal review of
contracts awarded by or on behalf of the VA OIG will be conducted by
the Counselor to the Inspector General.
(b) If the contracting officer declines to implement one or more of
the recommendations or comments contained in the review memorandum, the
contracting officer shall submit a written response to the Director,
Acquisition Program Management Division, or the Director, Acquisition
Assistance Team, as appropriate, explaining why the recommendations or
comments were not followed. For contracts awarded by or on behalf of
the VA OIG, the response shall be submitted to the Counselor to the
Inspector General.
849.111-71 Submission of information.
(a) The contracting officer shall submit to the appropriate
Acquisition Program Management Division or Acquisition Assistance Team
office a copy of the proposed settlement agreement or determination,
supported by such detailed information as is required for an adequate
review. This information should normally include copies of:
(1) The contractor's or subcontractor's settlement proposal.
(2) The audit report.
(3) The property disposed report and any required approvals in
connection therewith,
(4) The contracting officer's memorandum explaining the settlement,
and
(5) Any other relevant material that will assist the procurement
analyst in the review. The procurement analyst may, at his or her
discretion, require the submission of additional information.
(b) The Director, Acquisition Program Management Division, or the
Director, Acquisition Assistance Team, will obtain the concurrence or
comments of OGC prior to forwarding the review to the contracting
officer, except that the concurrence or comments will be obtained from
the Counselor to the Inspector General for contracts awarded by or on
behalf of the VA Office of Inspector General.
SUBCHAPTER H--CLAUSES AND FORMS
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 852.1--Instructions for Using Provisions and Clauses
Sec.
852.101 Using part 852.
852.102 Incorporating provisions and clauses.
Subpart 852.2--Text of Provisions and Clauses
852.203-70 Commercial advertising.
852.203-71 Display of Department of Veterans Affairs hotline poster.
852.207-70 Report of employment under commercial activities.
852.209-70 Organizational conflicts of interest.
852.211-70 Service data manuals.
852.211-71 Special notice.
852.211-72 Technical industry standards.
852.211-73 Brand name or equal.
852.211-74 Liquidated damages.
852.211-75 Product specifications.
852.214-70 Caution to bidders--bid envelopes.
852.214-71 Restrictions on alternate item(s).
852.214-72 Alternate item(s).
852.214-73 Alternate packaging and packing.
852.214-74 Bid samples.
852.216-70 Estimated quantities.
852.222-70 Contract Work Hours and Safety Standards Act--nursing
home care contract supplement.
852.228-70 Bond premium adjustment.
852.228-71 Indemnification and insurance.
852.229-70 Sales or use taxes.
852.229-71 [Reserved].
852.233-70 Protest content/alternative dispute resolution.
852.233-71 Alternate protest procedure.
852.236-70 [Reserved].
852.236-71 Specifications and drawings for construction.
852.236-72 Performance of work by the contractor.
852.236-73 [Reserved].
852.236-74 Inspection of construction.
852.236-75 [Reserved].
852.236-76 Correspondence.
852.236-77 Reference to ``standards.''
852.236-78 Government supervision.
852.236-79 Daily report of workers and material.
852.236-80 Subcontracts and work coordination.
852.236-81 [Reserved].
852.236-82 Payments under fixed-price construction contracts
(without NAS).
852.236-83 Payments under fixed-price construction contracts
(including NAS).
[[Page 2769]]
852.236-84 Schedule of work progress.
852.236-85 Supplementary labor standards provisions.
852.236-86 Worker's compensation.
852.236-87 Accident prevention.
852.236-88 Contract changes--supplement.
852.236-89 Buy American Act.
852.236-90 Restriction on submission and use of equal products.
852.236-91 Special notes.
852.237-7 Indemnification and medical liability insurance.
852.237-70 Contractor responsibilities.
852.246-70 Guarantee.
852.246-71 Inspection.
852.246-72 Frozen processed foods.
852.246-73 Noncompliance with packaging, packing and/or marking
requirements.
852.246-74 Special warranties.
852.246-75 Warranties for construction--guarantee period services.
852.247-70 Determining transportation costs for bid evaluation.
852.252-70 Solicitation provisions or clauses incorporated by
reference.
852.270-1 Representatives of contracting officers.
852.270-2 Bread and bakery products--quantities.
852.270-3 Purchase of shellfish.
852.271-70 Nondiscrimination in services provided to beneficiaries.
852.271-71 [Reserved].
852.271-72 Time spent by counselee in counseling process.
852.271-73 Use and publication of counseling results.
852.271-74 Inspection.
852.271-75 Extension of contract period.
852.273-70 Late offers.
852.273-71 Alternative negotiation techniques.
852.273-72 Alternative evaluation.
852.273-73 Evaluation--health-care resources.
852.273-74 Award without exchanges.
Authority: 38 U.S.C. 501 and 8151-8153; 40 U.S.C. 121(c); and 48
CFR 1.301-1.304.
Subpart 852.1--Instructions for Using Provisions and Clauses
852.101 Using Part 852.
Part 852 prescribes supplemental provisions and clauses to the FAR.
Provision and clause numbering are as prescribed in FAR 52.101 (e.g.,
supplementary construction clauses under Part 836 are numbered 852.236-
71, 852.236-72, etc.).
852.102 Incorporating provisions and clauses.
(a) As authorized by FAR 52.102(c), any 48 CFR Chapter 8 (VAAR)
provision or clause may be incorporated in a quotation, solicitation,
or contract by reference, provided the contracting officer complies
with the requirements stated in FAR 52.102(c)(1), (c)(2), and (c)(3).
To ensure compliance with FAR 52.102(c)(1) and (c)(2), contracting
officers shall insert the provision found at 852.252-70, Solicitation
provisions or clauses incorporated by reference, in full text in a
quotation, solicitation, or contract if the quotation, solicitation, or
contract incorporates by reference a FAR or 48 CFR Chapter 8 (VAAR)
provision or clause that requires completion by the offeror or
prospective contractor and submittal with the quotation or offer.
(b) For any FAR or 48 CFR Chapter 8 (VAAR) provision or clause that
requires completion by the contracting officer, the contracting officer
shall, as a minimum, insert the title of the provision or clause and
the paragraph that requires completion in full text in the quotation,
solicitation, or contract. The balance of the provision or clause may
be incorporated by reference.
(c) When one or more FAR or 48 CFR Chapter 8 (VAAR) provisions, or
portions thereof, are incorporated in a quotation or solicitation by
reference, the contracting officer shall insert in the quotation or
solicitation the provision found at FAR 52.252-1, Solicitation
Provisions Incorporated by Reference.
(d) When one or more FAR or 48 CFR Chapter 8 (VAAR) clauses, or
portions thereof, are incorporated in a quotation, solicitation, or
contract by reference, the contracting officer shall insert in the
quotation, solicitation, or contract the clause found at FAR 52.252-2,
Clauses Incorporated by Reference.
(e) If one or more FAR provisions or clauses, or portions thereof,
are incorporated in a quotation, solicitation, or contract by
reference, the contracting officer shall insert in the FAR provision or
clause required by paragraph (c) or (d) of this section the following
Internet address: http://www.acquisition.gov/comp/far/index.html.
(f) If one or more 48 CFR Chapter 8 (VAAR) provisions or clauses,
or portions thereof, are incorporated in a quotation, solicitation, or
contract by reference, the contracting officer shall insert in the FAR
provision or clause required by paragraph (c) or (d) of this section
the following Internet address: http://www1.va.gov/oamm/acquisitions/ars/policyreg/vaar/index.htm.
Subpart 852.2--Texts of Provisions and Clauses
852.203-70 Commercial advertising.
As prescribed in 803.570-2, insert the following clause:
Commercial Advertising (JAN 2008)
The bidder or offeror agrees that if a contract is awarded to
him/her, as a result of this solicitation, he/she will not advertise
the award of the contract in his/her commercial advertising in such
a manner as to state or imply that the Department of Veterans
Affairs endorses a product, project or commercial line of endeavor.
(End of Clause)
852.203-71 Display of Department of Veterans Affairs hotline poster.
As prescribed in 803.7001, insert the following clause:
Display of Department of Veterans Affairs Hotline Poster (DEC 1992)
(a) Except as provided in paragraph (c) below, the Contractor
shall display prominently, in common work areas within business
segments performing work under VA contracts, Department of Veterans
Affairs Hotline posters prepared by the VA Office of Inspector
General.
(b) Department of Veterans Affairs Hotline posters may be
obtained from the VA Office of Inspector General (53E), P.O. Box
34647, Washington, DC 20043-4647.
(c) The Contractor need not comply with paragraph (a) above if
the Contractor has established a mechanism, such as a hotline, by
which employees may report suspected instances of improper conduct,
and instructions that encourage employees to make such reports.
(End of Clause)
852.207-70 Report of employment under commercial activities.
As prescribed in 807.304-77 and 873.110, the following clause will
be included in A-76 cost comparison solicitations and solicitations
issued under the authority of 38 U.S.C. 8151-8153 that may result in
conversion from in-house to contract performance of work:
Report of Employment Under Commercial Activities (JAN 2008)
(a) Consistent with the Government post-employment conflict of
interest regulations, the contractor shall give adversely affected
Federal personnel the right of first refusal for all employment
openings under this contract for which they are qualified.
(b) Definitions.
(1) Adversely affected Federal personnel means:
(i) Permanent Federal personnel who are assigned to the
government commercial activity, or
(ii) Federal personnel who are identified for release from their
competitive levels or separated as a result of the contract.
(2) Employment openings means position vacancies created by this
contract that the contractor is unable to fill with personnel in the
contractor's employ at the time of the contract award. The term
includes positions within a 50-mile radius of the commercial
activity that indirectly arise in the contractor's organization as a
result of the contractor's reassignment of employees due to the
award of this contract.
(3) Contract start date means the first day of contractor
performance.
(c) Filling employment openings. (1) For a period beginning with
contract award and
[[Page 2770]]
ending 90 calendar days after the contract start date, no person
other than adversely affected Federal personnel on the current
listing provided by the contracting officer shall be offered an
employment opening until all adversely affected and qualified
Federal personnel identified by the contracting officer have been
offered the job and refused it.
(2) The contractor may select any person for an employment
opening when there are no qualified adversely affected Federal
personnel on the latest current listing provided by the contracting
officer.
(d) Contracting reporting requirements. (1) No later than 5
working days after contract award, the contractor shall furnish the
contracting officer with the following:
(i) A list of employment openings including salaries and
benefits, and
(ii) Sufficient job application forms for adversely affected
Federal personnel.
(2) By the contract start date, the contractor shall provide the
contracting officer with the following:
(i) The names of adversely affected Federal personnel offered an
employment opening;
(ii) The date the offer was made;
(iii) A brief description of the position;
(iv) The date of acceptance of the offer and the effective date
of employment;
(v) The date of rejection of the offer, if applicable, and the
salary and benefits contained in the rejected offer; and
(vi) The names of any adversely affected Federal personnel who
applied but were not offered employment and the reason(s) for
withholding an offer.
(3) For the first 90 calendar days after the contract start
date, the contractor shall provide the contracting officer with the
names of all persons hired or terminated under the contract within 5
working days of such hiring or termination.
(e) Information provided to the contractor. (1) No later than 10
calendar days after the contract award, the contracting officer
shall furnish the contractor a current list of adversely affected
Federal personnel exercising the right of first refusal, along with
their completed job application forms.
(2) Between the contract award and start dates, the contracting
officer shall inform the contractor of any reassignment or transfer
of adversely affected Federal personnel to other Federal positions.
(3) For a period of up to 90 calendar days after the contract
start date, the contracting officer will periodically provide the
contractor with an updated listing of adversely affected Federal
personnel reflecting personnel who were recently released from their
competitive levels or separated as a result of the contract award.
(f) Qualifications determination. The contractor has a right
under this clause to determine adequacy of the qualifications of
adversely affected Federal personnel for any employment openings.
However, adversely affected Federal personnel who held jobs in the
Government commercial activity that directly correspond to an
employment opening shall be considered qualified for the job.
Questions concerning the qualifications of adversely affected
Federal personnel for specific employment openings shall be referred
to the contracting officer for determination. The contracting
officer's determination shall be final and binding on all parties.
(g) Relating to other statutes, regulations and employment
policies. The requirements of this clause shall not modify or alter
the contractor's responsibilities under statutes, regulations or
other contract clauses pertaining to the hiring of veterans,
minorities, or persons with disabilities.
(h) Penalty for noncompliance. Failure of the contractor to
comply with any provision of the clause may be grounds for
termination for default.
(End of Clause)
852.209-70 Organizational conflicts of interest.
As prescribed in 809.507-1(b), insert the following provision:
Organizational Conflicts of Interest (JAN 2008)
(a) It is in the best interest of the Government to avoid
situations which might create an organizational conflict of interest
or where the offeror's performance of work under the contract may
provide the contractor with an unfair competitive advantage. The
term ``organizational conflict of interest'' means that because of
other activities or relationships with other persons, a person is
unable to render impartial assistance or advice to the Government,
or the person's objectivity in performing the contract work is or
might be otherwise impaired, or the person has an unfair competitive
advantage.
(b) The offeror shall provide a statement with its offer which
describes, in a concise manner, all relevant facts concerning any
past, present, or currently planned interest (financial,
contractual, organizational, or otherwise) or actual or potential
organizational conflicts of interest relating to the services to be
provided under this solicitation. The offeror shall also provide
statements with its offer containing the same information for any
consultants and subcontractors identified in its proposal and which
will provide services under the solicitation. The offeror may also
provide relevant facts that show how its organizational and/or
management system or other actions would avoid or mitigate any
actual or potential organizational conflicts of interest.
(c) Based on this information and any other information
solicited or obtained by the contracting officer, the contracting
officer may determine that an organizational conflict of interest
exists which would warrant disqualifying the contractor for award of
the contract unless the organizational conflict of interest can be
mitigated to the contracting officer's satisfaction by negotiating
terms and conditions of the contract to that effect. If the conflict
of interest cannot be mitigated and if the contracting officer finds
that it is in the best interest of the United States to award the
contract, the contracting officer shall request a waiver in
accordance with FAR 9.503 and 48 CFR 809.503.
(d) Nondisclosure or misrepresentation of actual or potential
organizational conflicts of interest at the time of the offer, or
arising as a result of a modification to the contract, may result in
the termination of the contract at no expense to the Government.
(End of Provision)
852.211-70 Service data manuals.
(a) As prescribed in 811.107(a), insert the following clause:
Service Data Manuals (NOV 1984)
(a) The successful bidder will supply operation/maintenance
(service data) manuals with each piece of equipment in the quantity
specified in the solicitation and resulting purchase order. As a
minimum, the manual(s) shall be bound and equivalent to the
manual(s) provided the manufacturer's designated field service
representative as well as comply with all the requirements in
paragraphs (b) through (i) of this clause. Sections, headings and
section sequence identified in (b) through (i) of this clause are
typical and may vary between manufacturers. Variances in the
sections, headings and section sequence, however, do not relieve the
manufacturer of his/her responsibility in supplying the technical
data called for therein.
(b) Title Page and Front Matter. The title page shall include
the equipment nomenclature, model number, effective date of the
manual and the manufacturer's name and address. If the manual
applies to a particular version of the equipment only, the title
page shall also list that equipment's serial number. Front matter
shall consist of the Table of Contents, List of Tables, List of
Illustrations and a frontispiece (photograph or line drawing)
depicting the equipment.
(c) Section I, General Description. This section shall provide a
generalized description of the equipment or devices and shall
describe its purpose or intended use. Included in this section will
be a table listing all pertinent equipment specifications, power
requirements, environmental limitations and physical dimensions.
(d) Section II, Installation. Section II shall provide pertinent
installation information. It shall list all input and output
connectors using applicable reference designators and functional
names as they appear on the equipment. Included in this listing will
be a brief description of the function of each connector along with
the connector type. Instructions shall be provided as to the
recommended method of repacking the equipment for shipment (packing
material, labeling, etc.).
(e) Section III, Operation. Section III will fully describe the
operation of the equipment and shall include a listing of each
control with a brief description of its function and step-by-step
procedures for each operating mode. Procedures will use the
control(s) nomenclature as it appears on the equipment and will be
keyed to one or more illustrations of the equipment. Operating
procedures will include any preoperational checks, calibration
adjustments and operation tests. Notes, cautions and warnings shall
be set off from the text body so they may easily be recognizable and
will draw the attention of the reader. Illustrations should be used
[[Page 2771]]
wherever possible depicting equipment connections for test,
calibration, patient monitoring and measurements. For large, complex
and/or highly versatile equipment capable of many operating modes
and in other instances where the Operation Section is quite large,
operational information may be bound separately in the form of an
Operators Manual. The providing of a separate Operators manual does
not relieve the supplier of his responsibility for providing the
minimum acceptable maintenance data specified herein. When
applicable, flow charts and narrative descriptions of software shall
be provided. If programming is either built-in and/or user
modifiable, a complete software listing shall be supplied. Equipment
items with software packages shall also include diagnostic routines
and sample outputs. Submission information shall be given in the
Maintenance Section to identify equipment malfunctions that are
software related.
(f) Section IV, Principles of Operation. This section shall
describe in narrative form the principles of operation of the
equipment. Circuitry shall be discussed in sufficient detail to be
understood by technicians and engineers who possess a working
knowledge of electronics and a general familiarity with the overall
application of the devices. The circuit descriptions should start at
the overall equipment level and proceed to more detailed circuit
descriptions. The overall description shall be keyed to a functional
block diagram of the equipment. Circuit descriptions shall be keyed
to schematic diagrams discussed in paragraph (i) below. It is
recommended that for complex or special circuits, simplified
schematics should be included in this section.
(g) Section V, Maintenance. The maintenance section shall
contain a list of recommended test equipment, special tools,
preventive maintenance instructions and corrective information. The
list of test equipment shall be that recommended by the manufacturer
and shall be designated by manufacturer and model number. Special
tools are those items not commercially available or those that are
designed specifically for the equipment being supplied. Sufficient
data will be provided to enable their purchase by the Department of
Veterans Affairs. Preventive maintenance instructions shall consist
of those recommended by the manufacturer to preclude unnecessary
failures. Procedures and the recommended frequency of performance
shall be included for visual inspection, cleaning, lubricating,
mechanical adjustments and circuit calibration. Corrective
maintenance shall consist of the data necessary to troubleshoot and
rectify a problem and shall include procedures for realigning and
testing the equipment. Troubleshooting shall include either a list
of test points with the applicable voltage levels or waveforms that
would be present under a certain prescribed set of conditions, a
troubleshooting chart listing the symptom, probable cause and
remedy, or a narrative containing sufficient data to enable a test
technician or electronics engineer to determine and locate the
probable cause of malfunction. Data shall also be provided
describing the preferred method of repairing or replacing discrete
components mounted on printed circuit boards or located in areas
where special steps must be followed to disassemble the equipment.
Procedures shall be included to realign and test the equipment at
the completion of repairs and to restore it to its original
operating condition. These procedures shall be supported by the
necessary waveforms and voltage levels, and data for selecting
matched components. Diagrams, either photographic or line, shall
show the location of printed circuit board mounted components.
(h) Section VI, Replacement Parts List. The replacement parts
list shall list, in alphanumeric order, all electrical/electronic,
mechanical and pneumatic components, their description, value and
tolerance, true manufacturer and manufacturers' part number.
(i) Section VII, Drawings. Wiring and schematic diagrams shall
be included. The drawings will depict the circuitry using standard
symbols and shall include the reference designations and component
values or type designators. Drawings shall be clear and legible and
shall not be engineering or productions sketches.
(End of Clause)
Alternate I (JAN 2008). If the bid or proposal will result in the
initial purchase (including each make and model) of a centrally
procured item, insert the following paragraph:
(j) Initial purchase. The contractor agrees, when requested by
the contracting officer, to furnish not more than three copies of
the technical documentation required by paragraph 852.211-70(a) to
the Service and Reclamation Division, Hines, IL. In addition, the
contractor agrees to furnish two additional copies of the technical
documentation required by 852.211-70(a) with each piece of equipment
sold as a result of the invitation for bid or request for proposal.
(b) As prescribed in 811.107(b), insert the following clause:
Service Data Manuals, Mechanical Equipment (JAN 2008)
The contractor agrees to furnish two hard copies of a manual,
handbook or brochure containing operating, installation, and
maintenance instructions (including pictures or illustrations,
schematics, and complete repair/test guides as necessary). Where
applicable, it will include electrical data and connection diagrams
for all utilities. The instructions shall also contain a complete
list of all replaceable parts showing part number, name, and
quantity required.
(End of Clause)
852.211-71 Special notice.
As prescribed in 870.112, insert the following provision:
Special Notice (JAN 2008)
Descriptive literature. The submission of descriptive literature
with offers is not required and voluntarily submitted descriptive
literature that qualifies the offer will require rejection of the
offer. However, within 5 days after award of the contract, the
contractor will submit to the contracting officer literature
describing the equipment he/she intends to furnish and indicating
strict compliance with the specification requirements. The
contracting officer will, by written notice to the contractor within
20 calendar days after receipt of the literature, approve,
conditionally approve, or disapprove the equipment being proposed.
The notice of approval or conditional approval will not relieve the
contractor from complying with all requirements of the
specifications and all other terms and conditions of this contract.
A notice of conditional approval will state any further action
required of the contractor. A notice of disapproval will cite
reasons therefore. If the equipment is disapproved by the
Government, the contractor will be subject to action under the
Default or Termination for Cause provision of this contract.
However, prior to default or termination for cause action the
contractor will be permitted a period (at least 10 days) under that
clause to submit additional descriptive literature on equipment
originally offered or descriptive literature on other equipment. The
Government reserves the right to require an equitable adjustment of
the contract price for any extension of the delivery schedule
necessitated by additional descriptive literature evaluations.
(End of Provision)
852.211-72 Technical industry standards.
As prescribed in 811.103-70, insert the following provision:
Technical Industry Standards (JAN 2008)
The supplies or equipment required by this invitation for bid or
request for proposal must conform to the standards of the [ ]* and [
]* as to [ ]**. The successful bidder or offeror will be required to
submit proof that the item(s) he/she furnishes conforms to this
requirement. This proof may be in the form of a label or seal
affixed to the equipment or supplies, warranting that they have been
tested in accordance with and conform to the specified standards.
Proof may also be furnished in the form of a certificate from one of
the above listed organizations certifying that the item(s) furnished
have been tested in accordance with and conform to the specified
standards.
(End of Provision)
*Insert name(s) of organization(s), the standards of which are
pertinent to the Government's needs.
**Insert pertinent standards, e.g., fire and casualty, safety and
fire protection.
852.211-73 Brand name or equal.
As prescribed in 811.104-71, insert the following clause:
Brand Name or Equal (JAN 2008)
(Note: As used in this clause, the term ``brand name'' includes
identification of products by make and model.)
[[Page 2772]]
(a) If items called for by this invitation for bids have been
identified in the schedule by a ``brand name or equal'' description,
such identification is intended to be descriptive, but not
restrictive, and is to indicate the quality and characteristics of
products that will be satisfactory. Bids offering ``equal'' products
(including products of the brand name manufacturer other than the
one described by brand name) will be considered for award if such
products are clearly identified in the bids and are determined by
the Government to meet fully the salient characteristics
requirements listed in the invitation.
(b) Unless the bidder clearly indicates in the bid that the
bidder is offering an ``equal'' product, the bid shall be considered
as offering a brand name product referenced in the invitation for
bids.
(c)(1) If the bidder proposes to furnish an ``equal'' product,
the brand name, if any, of the product to be furnished shall be
inserted in the space provided in the invitation for bids, or such
product shall be otherwise clearly identified in the bid. The
evaluation of bids and the determination as to equality of the
product offered shall be the responsibility of the Government and
will be based on information furnished by the bidder or identified
in his/her bid as well as other information reasonably available to
the purchasing activity. CAUTION TO BIDDERS. The purchasing activity
is not responsible for locating or securing any information that is
not identified in the bid and reasonably available to the purchasing
activity. Accordingly, to insure that sufficient information is
available, the bidder must furnish as a part of his/her bid all
descriptive material (such as cuts, illustrations, drawings or other
information) necessary for the purchasing activity to:
(i) Determine whether the product offered meets the salient
characteristics requirement of the Invitation for Bids, and
(ii) Establish exactly what the bidder proposes to furnish and
what the Government would be binding itself to purchase by making an
award. The information furnished may include specific references to
information previously furnished or to information otherwise
available to the purchasing activity.
(2) If the bidder proposes to modify a product so as to make it
conform to the requirements of the Invitation for Bids, he/she
shall:
(i) Include in his/her bid a clear description of such proposed
modifications, and
(ii) Clearly mark any descriptive material to show the proposed
modifications.
(3) Modifications proposed after bid opening to make a product
conform to a brand name product referenced in the Invitation for
Bids will not be considered.
(End of Clause)
852.211-74 Liquidated damages.
As prescribed in 811.503 and 836.206, the contracting officer may
insert the following clause when appropriate:
Liquidated Damages (JAN 2008)
If any unit of the work contracted for is accepted in advance of
the whole, the rate of liquidated damages assessed will be in the
ratio that the value of the unaccepted work bears to the total
amount of the contract. If a separate price for unaccepted work has
not been stated in the contractor's bid, determination of the value
thereof will be made from schedules of costs furnished by the
contractor and approved by the contracting officer, as specified
elsewhere in the contract.
(End of Clause)
852.211-75 Product specifications.
As prescribed in 811.204, insert the following clause:
Product Specifications (JAN 2008)
The products offered under this solicitation shall be type ----
------------, grade ----------------, in accordance with [type of
specification] No. ----------------, dated ---------------- and
amendment ---------------- dated --------, except for paragraphs --
-------------- and ---------------- which are amended as follows:
[List any amendments to the specifications]
(End of Clause)
852.214-70 Caution to bidders--bid envelopes.
As provided in 814.201-6(a), the following provision will be
included in all invitations for bid:
Caution to Bidders--Bid Envelopes (JAN 2008)
It is the responsibility of each bidder to take all necessary
precautions, including the use of proper mailing cover, to insure
that the bid price cannot be ascertained by anyone prior to bid
opening. If a bid envelope is furnished with this invitation, the
bidder is requested to use this envelope in submitting the bid. The
bidder may, however, use any suitable envelope, identified by the
invitation number and bid opening time and date. If an Optional Form
(OF) 17, Sealed Bid Label, is furnished with this invitation in lieu
of a bid envelope, the bidder is advised to complete and affix the
OF 17 to the lower left corner of the envelope used in submitting
the bid.
(End of Provision)
852.214-71 Restrictions on alternate item(s).
As prescribed in 814.201-6(b)(1), insert the following provision:
Restrictions on Alternate Item(s) (JAN 2008)
Bids on [ ]* will be considered only if acceptable bids on [ ]**
are not received or do not satisfy the total requirement.
(End of Provision)
*Contracting officer will insert an alternate item that is
considered acceptable.
**Contracting officer will insert the required item and item
number.
852.214-72 Alternate item(s).
As prescribed in 814.201-6(b)(2), insert the following provision:
Alternate Item(s) (JAN 2008)
Bids on [ ]* will be given equal consideration along with bids
on [ ]** and any such bids received may be accepted if to the
advantage of the Government. Tie bids will be decided in favor of [
].**
(End of Provision)
*Contracting officer will insert an alternate item that is
considered acceptable.
**Contracting officer will insert the required item and item
number.
852.214-73 Alternate packaging and packing.
As prescribed in 814.201-6(b)(3), insert the following provision:
Alternate Packaging and Packing (JAN 2008)
The bidder's offer must clearly indicate the quantity, package
size, unit, or other different feature upon which the quote is made.
Evaluation of the alternate or multiple alternates will be made on a
common denominator such as per ounce, per pound, etc., basis.
(End of Provision)
852.214-74 Bid samples.
As prescribed in 814.201-6(c), insert the following provision:
Bid Samples (JAN 2008)
Any bid sample(s) furnished must be in the quantities specified
in the solicitation and plainly marked with the complete lettering/
numbering and description of the related bid item(s); the number of
the Invitation for Bids; and the name of the bidder submitting the
bid sample(s). Cases or packages containing any bid sample(s) must
be plainly marked ``Bid Sample(s)'' and all changes pertaining to
the preparation and transportation of bid sample(s) must be prepaid
by the bidder. Bid sample(s) must be received at the location
specified in the solicitation by the time and date for receipt of
bids.
(End of Provision)
852.216-70 Estimated quantities.
As prescribed in 816.504(a), insert the following clause:
Estimated Quantities (APR 1984)
As it is impossible to determine the exact quantities that will
be required during the contract term, each bidder whose bid is
accepted wholly or in part will be required to deliver all articles
or services that may be ordered during the contract term, except as
he/she otherwise indicates in his/her bid and except as otherwise
provided herein. Bids will be considered if made with the proviso
[[Page 2773]]
that the total quantities delivered shall not exceed a certain
specified quantity. Bids offering less than 75 percent of the
estimated requirement or which provide that the Government shall
guarantee any definite quantity, will not be considered. The fact
that quantities are estimated shall not relieve the contractor from
filling all orders placed under this contract to the extent of his/
her obligation. Also, the Department of Veterans Affairs shall not
be relieved of its obligation to order from the contractor all
articles or services that may, in the judgment of the ordering
officer, be needed except that in the public exigency procurement
may be made without regard to this contract.
(End of Clause)
Alternate I (APR 1984). As prescribed in 816.504(b), insert the
following clause:
Estimated Quantities (APR 1984)
The estimated requirements shown in this invitation for bids
cover the requirements for the entire contract period. It is
understood and agreed that during the period of this contract the
Government may order and the contractor will haul such coal as may,
in the opinion of the Government, be required, except that in the
public exigency procurement may be made without regard to this
contract.
(End of Clause)
Alternate II (APR 1984). As prescribed in 816.504(c), insert the
following clause:
Estimated Quantities (APR 1984)
The supplies and/or services listed in the attached schedule
will be furnished at such time and in such quantities as they are
required.
(End of Clause)
Alternate III (JUL 1989). As prescribed in 816.504(d), insert the
following clause:
Estimated Quantities (JUL 1989)
As it is impossible to determine the exact quantities that will
be required during the contract term, each bidder whose bid is
accepted wholly or in part will be required to deliver all articles
that may be ordered during the contract term, except as he or she
otherwise indicates in his or her bid and except as otherwise
provided herein. Bids will be considered if made with the proviso
that the total quantities delivered shall not exceed a certain
specified quantity. The fact that quantities are estimated shall not
relieve the contractor from filling all orders placed under this
contract to the extent of his/her obligation. Also, the Department
of Veterans Affairs shall not be relieved of its obligation to order
from the contractor all articles that may, in the judgment of the
ordering officer, be needed except that in the public exigency
procurement may be made without regard to this contract.
(End of Clause)
Sec. 852.222-70 Contract Work Hours and Safety Standards Act--nursing
home care contract supplement.
As prescribed in 822.305, for nursing home care requirements,
insert the following clause:
Contract Work Hours and Safety Standards Act--Nursing Home Care
Contract Supplement (JAN 2008)
The following exemption to FAR clause 52.222-4, Contract Work
Hours and Safety Standards Act--Overtime Compensation, applies to
this contract: A contractor and subcontractor under this contract
will not be required to pay overtime wages to their employees for
work in excess of 40 hours in any workweek, which would otherwise be
a violation of the Contract Work Hours and Safety Standards Act (40
U.S.C. 3701-3708), provided:
(a) The contractor or subcontractor is primarily engaged in the
care of nursing home patients residing on the contractor's or
subcontractor's premises;
(b) There is an agreement or understanding between the
contractor or subcontractor and their employees, before performance
of work, that a work period of 14 consecutive days is acceptable in
lieu of a work period of 7 consecutive days for the purpose of
overtime compensation;
(c) Employees receive overtime compensation at a rate no less
than 1\1/2\ times the employees' regular hourly rate of pay for work
in excess of 80 hours in any 14 day period; and
(d) Pay is otherwise computed in accordance with the
requirements of the Fair Labor Standards Act of 1938, as amended.
(End of Clause)
Sec. 852.228-70 Bond premium adjustment.
As prescribed in 828.106-70, insert the following clause:
Bond Premium Adjustment (JAN 2008)
When net changes in original contract price affect the premium
of a Corporate Surety Bond by $5 or more, the Government, in
determining the basis for final settlement, will provide for bond
premium adjustment computed at the rate shown in the bond.
(End of Clause)
Sec. 852.228-71 Indemnification and insurance.
As prescribed in 828.306, insert the following clause:
Indemnification and Insurance (JAN 2008)
(a) Indemnification. The contractor expressly agrees to
indemnify and save the Government, its officers, agents, servants,
and employees harmless from and against any and all claims, loss,
damage, injury, and liability, however caused, resulting from,
arising out of, or in any way connected with the performance of work
under this agreement. Further, it is agreed that any negligence or
alleged negligence of the Government, its officers, agents,
servants, and employees, shall not be a bar to a claim for
indemnification unless the act or omission of the Government, its
officers, agents, servants, and employees is the sole, competent,
and producing cause of such claims, loss, damage, injury, and
liability. At the option of the contractor, and subject to the
approval by the contracting officer of the sources, insurance
coverage may be employed as guaranty of indemnification.
(b) Insurance. Satisfactory insurance coverage is a condition
precedent to award of a contract. In general, a successful bidder
must present satisfactory evidence of full compliance with State and
local requirements, or those below stipulated, whichever are the
greater. More specifically, workers' compensation and employer's
liability coverage will conform to applicable State law requirements
for the service contemplated, whereas general liability and
automobile liability of comprehensive type shall, in the absence of
higher statutory minimums, be required in the amounts per vehicle
used of not less than $200,000 per person and $500,000 per
occurrence for bodily injury and $20,000 per occurrence for property
damage. State-approved sources of insurance coverage ordinarily will
be deemed acceptable to the Department of Veterans Affairs
installation, subject to timely certifications by such sources of
the types and limits of the coverages afforded by the sources to the
bidder. [Contracting Officer's Note: In those instances where
airplane service is to be used, substitute the word ``aircraft'' for
``automobile'' and ``vehicle'' and modify coverage to require
aircraft public and passenger liability insurance of at least
$200,000 per passenger and $500,000 per occurrence for bodily
injury, other than passenger liability, and $200,000 per occurrence
for property damage. Coverage for passenger liability bodily injury
shall be at least $200,000 multiplied by the number of seats or
passengers, whichever is greater.]
(End of Clause)
Sec. 852.229-70 Sales or use taxes.
As prescribed in 829.302-70, insert the following provision:
Sales or Use Taxes (JAN 2008)
This provision replaces paragraph (k) of Federal Acquisition
Regulation clause 52.212-4, Contract Terms and Conditions--
Commercial Items. The articles listed in this solicitation will be
purchased from the personal funds of patients and prices submitted
herein include any sales or use tax heretofore imposed by any State,
or by any duly constituted taxing authority therein, having
jurisdiction to levy such a tax, applicable to the material in this
solicitation.
(End of Clause)
Sec. 852.229-71 [Reserved].
Sec. 852.233-70 Protest content/alternative dispute resolution.
As prescribed in 833.106, insert the following provision:
[[Page 2774]]
Protest Content/Alternative Dispute Resolution (JAN 2008)
(a) Any protest filed by an interested party shall:
(1) Include the name, address, fax number, and telephone number
of the protester;
(2) Identify the solicitation and/or contract number;
(3) Include an original signed by the protester or the
protester's representative and at least one copy;
(4) Set forth a detailed statement of the legal and factual
grounds of the protest, including a description of resulting
prejudice to the protester, and provide copies of relevant
documents;
(5) Specifically request a ruling of the individual upon whom
the protest is served;
(6) State the form of relief requested; and
(7) Provide all information establishing the timeliness of the
protest.
(b) Failure to comply with the above may result in dismissal of
the protest without further consideration.
(c) Bidders/offerors and contracting officers are encouraged to
use alternative dispute resolution (ADR) procedures to resolve
protests at any stage in the protest process. If ADR is used, the
Department of Veterans Affairs will not furnish any documentation in
an ADR proceeding beyond what is allowed by the Federal Acquisition
Regulation.
(End of Provision)
Sec. 852.233-71 Alternate protest procedure.
As prescribed in 833.106, insert the following provision:
Alternate Protest Procedure (JAN 1998)
As an alternative to filing a protest with the contracting
officer, an interested party may file a protest with the Deputy
Assistant Secretary for Acquisition and Materiel Management,
Acquisition Administration Team, Department of Veterans Affairs, 810
Vermont Avenue, NW., Washington, DC 20420, or for solicitations
issued by the Office of Construction and Facilities Management, the
Director, Office of Construction and Facilities Management, 810
Vermont Avenue, NW., Washington, DC 20420. The protest will not be
considered if the interested party has a protest on the same or
similar issues pending with the contracting officer.
(End of Provision)
Sec. 852.236-70 [Reserved].
Sec. 852.236-71 Specifications and drawings for construction.
As prescribed in 836.521, insert the following clause:
Specifications and Drawings for Construction (JUL 2002)
The clause entitled ``Specifications and Drawings for
Construction'' in FAR 52.236-21 is supplemented as follows:
(a) The contracting officer's interpretation of the drawings and
specifications will be final, subject to the disputes clause.
(b) Large scale drawings supersede small scale drawings.
(c) Dimensions govern in all cases. Scaling of drawings may be
done only for general location and general size of items.
(d) Dimensions shown of existing work and all dimensions
required for work that is to connect with existing work shall be
verified by the contractor by actual measurement of the existing
work. Any work at variance with that specified or shown in the
drawings shall not be performed by the contractor until approved in
writing by the contracting officer.
(End of Clause)
852.236-72 Performance of work by the contractor.
As prescribed in 836.501, insert the following clause:
Performance of Work by the Contractor (JUL 2002)
The clause entitled ``Performance of Work by the Contractor'' in
FAR 52.236-1 is supplemented as follows:
(a) Contract work accomplished on the site by laborers,
mechanics, and foremen/forewomen on the contractor's payroll and
under his/her direct supervision shall be included in establishing
the percent of work to be performed by the contractor. Cost of
material and equipment installed by such labor may be included. The
work by the contractor's executive, supervisory and clerical forces
shall be excluded in establishing compliance with the requirements
of this clause.
(b) The contractor shall submit, simultaneously with the
schedule of costs required by the Payments Under Fixed-Price
Construction Contracts clause of the contract, a statement
designating the branch or branches of contract work to be performed
with his/her forces. The approved schedule of costs will be used in
determining the value of a branch or branches, or portions thereof,
of the work for the purpose of this article.
(c) If, during the progress of work hereunder, the contractor
requests a change in the branch or branches of the work to be
performed by his/her forces and the contracting officer determines
it to be in the best interest of the Government, the contracting
officer may, at his/her discretion, authorize a change in such
branch or branches of said work. Nothing contained herein shall
permit a reduction in the percentage of work to be performed by the
contractor with his/her forces, it being expressly understood that
this is a contract requirement without right or privilege of
reduction.
(d) In the event the contractor fails or refuses to meet the
requirement of the FAR clause at 52.236-1, it is expressly agreed
that the contract price will be reduced by 15 percent of the value
of that portion of the percentage requirement that is accomplished
by others. For the purpose of this clause, it is agreed that 15
percent is an acceptable estimate of the contractor's overhead and
profit, or mark-up, on that portion of the work which the contractor
fails or refuses to perform, with his/her own forces, in accordance
with the FAR clause at 52.236-1.
(End of Clause)
Alternate I (Date). For requirements which include Network Analysis
System (NAS), substitute the following paragraphs (b) and (c) for
paragraphs (b) and (c) of the basic clause:
(b) The contractor shall submit, simultaneously with the cost per
activity of the construction schedule required by Section 01310 or
01311, NETWORK ANALYSIS SYSTEM, a responsibility code for all
activities of the network for which the contractor's forces will
perform the work. The cost of these activities will be used in
determining the portions of the total contract work to be executed by
the contractor's forces for the purpose of this article.
(c) If, during progress of work hereunder, the contractor requests
a change in activities of work to be performed by the contractor's
forces and the contracting officer determines it to be in the best
interest of the Government, the contracting officer may, at his or her
discretion, authorize a change in such activities of said work.
852.236-73 [Reserved].
852.236-74 Inspection of construction.
As prescribed in 846.312, insert the following clause:
Inspection of Construction (JUL 2002)
The clause entitled ``Inspection of Construction'' in FAR
52.246-12 is supplemented as follows:
(a) Inspection of materials and articles furnished under this
contract will be made at the site by the resident engineer, unless
otherwise provided for in the specifications.
(b) Final inspection will not be made until the contract work is
ready for beneficial use or occupancy. The contractor shall notify
the contracting officer, through the resident engineer, fifteen (15)
days prior to the date on which the work will be ready for final
inspection.
(End of Clause)
852.236-75 [Reserved].
852.236-76 Correspondence.
As prescribed in 836.570, insert the following clause:
Correspondence (APR 1984)
All correspondence relative to this contract shall bear the
Specification Number, Project Number, Department of Veterans Affairs
Contract Number, title of project and name of facility.
(End of Clause)
852.236-77 Reference to ``standards''.
As prescribed in 836.571, insert the following clause:
[[Page 2775]]
Reference to ``Standards'' (JUL 2002)
Any materials, equipment, or workmanship specified by references
to number, symbol, or title of any specific Federal, Industry or
Government Agency Standard Specification shall comply with all
applicable provisions of such standard specifications, except as
limited to type, class or grade, or modified in contract
specifications. Reference to ``Standards'' referred to in the
contract specifications, except as modified, shall have full force
and effect as though printed in detail in the specifications.
(End of Clause)
852.236-78 Government supervision.
As prescribed in 836.572, insert the following clause:
Government Supervision (APR 1984)
(a) The work will be under the direction of the Department of
Veterans Affairs contracting officer, who may designate another VA
employee to act as resident engineer at the construction site.
(b) Except as provided below, the resident engineer's directions
will not conflict with or change contract requirements.
(c) Within the limits of any specific authority delegated by the
contracting officer, the resident engineer may, by written
direction, make changes in the work. The contractor shall be advised
of the extent of such authority prior to execution of any work under
the contract.
(End of Clause)
852.236-79 Daily report of workers and material.
As prescribed in 836.573, insert the following clause:
Daily Report of Workers and material (APR 1984)
The contractor shall furnish to the resident engineer each day a
consolidated report for the preceding work day in which is shown the
number of laborers, mechanics, foremen/forewomen and pieces of heavy
equipment used or employed by the contractor and subcontractors. The
report shall bear the name of the firm, the branch of work that they
perform, such as concrete, plastering, masonry, plumbing, sheet
metal work, etc. The report shall give a breakdown of employees by
crafts, location where employed, and work performed. The report
shall also list materials delivered to the site on the date covered
by the report.
(End of Clause)
852.236-80 Subcontracts and work coordination.
As prescribed in 836.574, insert the following clause:
Subcontracts and Work Coordination (APR 1984)
(a) Nothing contained in this contract shall be construed as
creating any contractual relationship between any subcontractor and
the Government. Divisions or sections of specifications are not
intended to control the contractor in dividing work among
subcontractors, or to limit work performed by any trade.
(b) The contractor shall be responsible to the Government for
acts and omissions of his/her own employees, and of the
subcontractors and their employees. The contractor shall also be
responsible for coordination of the work of the trades,
subcontractors, and material suppliers.
(c) The Government or its representatives will not undertake to
settle any differences between the contractor and subcontractors or
between subcontractors.
(d) The Government reserves the right to refuse to permit
employment on the work or require dismissal from the work of any
subcontractor who, by reason of previous unsatisfactory work on
Department of Veterans Affairs projects or for any other reason, is
considered by the contracting officer to be incompetent or otherwise
objectionable.
(End of Clause)
Alternate I (JUL 2002). For new construction work with complex
mechanical-electrical work, the following paragraph relating to work
coordination may be substituted for paragraph (b) of the basic clause:
(b) The contractor shall be responsible to the Government for acts
and omissions of his/her own employees, and subcontractors and their
employees. The contractor shall also be responsible for coordination of
the work of the trades, subcontractors, and material suppliers. The
contractor shall, in advance of the work, prepare coordination drawings
showing the location of openings through slabs, the pipe sleeves and
hanger inserts, as well as the location and elevation of utility lines,
including, but not limited to, conveyor systems, pneumatic tubes,
ducts, and conduits and pipes 2 inches and larger in diameter. These
drawings, including plans, elevations, and sections as appropriate,
shall clearly show the manner in which the utilities fit into the
available space and relate to each other and to existing building
elements. Drawings shall be of appropriate scale to satisfy the
previously stated purposes, but not smaller than \3/8\-inch scale.
Drawings may be composite (with distinctive colors for the various
trades) or may be separate but fully coordinated drawings (such as
sepias or photographic paper reproducibles) of the same scale. Separate
drawings shall depict identical building areas or sections and shall be
capable of being overlaid in any combination. The submitted drawings
for a given area of the project shall show the work of all trades that
will be involved in that particular area. Six complete composite
drawings or six complete sets of separate reproducible drawings shall
be received by the Government not less than 20 days prior to the
scheduled start of the work in the area illustrated by the drawings,
for the purpose of showing the contractor's planned methods of
installation. The objectives of such drawings are to promote carefully
planned work sequence and proper trade coordination, in order to assure
the expeditious solutions of problems and the installation of lines and
equipment as contemplated by the contract documents while avoiding or
minimizing additional costs to the contractor and to the Government. In
the event the contractor, in coordinating the various installations and
in planning the method of installation, finds a conflict in location or
elevation of any of the utilities with themselves, with structural
items or with other construction items, he/she shall bring this
conflict to the attention of the contracting officer immediately. In
doing so, the contractor shall explain the proposed method of solving
the problem or shall request instructions as to how to proceed if
adjustments beyond those of usual trades coordination are necessary.
Utilities installation work will not proceed in any area prior to the
submission and completion of the Government review of the coordinated
drawings for that area, nor in any area in which conflicts are
disclosed by the coordination drawings, until the conflicts have been
corrected to the satisfaction of the contracting officer. It is the
responsibility of the contractor to submit the required drawings in a
timely manner consistent with the requirements to complete the work
covered by this contract within the prescribed contract time.
852.236-81 [Reserved].
852.236-82 Payments under fixed-price construction contracts (without
NAS).
As prescribed in 832.111, insert the following clause in contracts
that do not contain a section entitled ``Network Analysis System
(NAS).''
Payments Under Fixed-Price Construction Contracts (APR 1984)
The clause entitled ``Payments Under Fixed-Price Construction
Contracts'' in FAR 52.232-5 is implemented as follows:
(a) Retainage:
(1) The contracting officer may retain funds:
(i) Where performance under the contract has been determined to
be deficient or the contractor has performed in an unsatisfactory
manner in the past; or
(ii) As the contract nears completion, to ensure that
deficiencies will be corrected and that completion is timely.
[[Page 2776]]
(2) Examples of deficient performance justifying a retention of
funds include, but are not restricted to, the following:
(i) Unsatisfactory progress as determined by the contracting
officer;
(ii) Failure to meet schedule in Schedule of Work Progress;
(iii) Failure to present submittals in a timely manner; or
(iv) Failure to comply in good faith with approved
subcontracting plans, certifications, or contract requirements.
(3) Any level of retention shall not exceed 10 percent either
where there is determined to be unsatisfactory performance, or when
the retainage is to ensure satisfactory completion. Retained amounts
shall be paid promptly upon completion of all contract requirements,
but nothing contained in this subparagraph shall be construed as
limiting the contracting officer's right to withhold funds under
other provisions of the contract or in accordance with the general
law and regulations regarding the administration of Government
contracts.
(b) The contractor shall submit a schedule of cost to the
contracting officer for approval within 30 calendar days after date
of receipt of notice to proceed. Such schedule will be signed and
submitted in triplicate. The approved cost schedule will be one of
the bases for determining progress payments to the contractor for
work completed. This schedule shall show cost by the branches of
work for each building or unit of the contract, as instructed by the
resident engineer.
(1) The branches shall be subdivided into as many sub-branches
as are necessary to cover all component parts of the contract work.
(2) Costs as shown on this schedule must be true costs and,
should the resident engineer so desire, he/she may require the
contractor to submit the original estimate sheets or other
information to substantiate the detailed makeup of the schedule.
(3) The sum of the sub-branches, as applied to each branch,
shall equal the total cost of such branch. The total cost of all
branches shall equal the contract price.
(4) Insurance and similar items shall be prorated and included
in the cost of each branch of the work.
(5) The cost schedule shall include separate cost information
for the systems listed in the table in this paragraph (b)(5). The
percentages listed below are proportions of the cost listed in the
contractor's cost schedule and identify, for payment purposes, the
value of the work to adjust, correct and test systems after the
material has been installed. Payment of the listed percentages will
be made only after the contractor has demonstrated that each of the
systems is substantially complete and operates as required by the
contract.
Value of Adjusting Correcting, and Testing System
------------------------------------------------------------------------
System Percent
------------------------------------------------------------------------
Pneumatic Tube System........................................ 10
Incinerators (medical waste and trash)....................... 5
Sewage treatment plant equipment............................. 5
Water treatment plant equipment.............................. 5
Washers (dish, cage, glass, etc.)............................ 5
Sterilizing equipment........................................ 5
Water distilling equipment................................... 5
Prefab temperature rooms (cold, constant temperature)........ 5
Entire air-conditioning system (Specified under 600 Sections) 5
Entire boiler plant system (Specified under 700 Sections).... 5
General supply conveyors..................................... 10
Food service conveyors....................................... 10
Pneumatic soiled linen and trash system...................... 10
Elevators and dumbwaiters.................................... 10
Materials transport system................................... 10
Engine-generator system...................................... 5
Primary switchgear........................................... 5
Secondary switchgear......................................... 5
Fire alarm system............................................ 5
Nurse call system............................................ 5
Intercom system.............................................. 5
Radio system................................................. 5
TV (entertainment) system.................................... 5
------------------------------------------------------------------------
(c) In addition to this cost schedule, the contractor shall
submit such unit costs as may be specifically requested. The unit
costs shall be those used by the contractor in preparing his/her bid
and will not be binding as pertaining to any contract changes.
(d) The contracting officer will consider for monthly progress
payments material and/or equipment procured by the contractor and
stored on the construction site, as space is available, or at a
local approved location off the site, under such terms and
conditions as such officer approves, including but not limited to
the following:
(1) The material or equipment is in accordance with the contract
requirements and/or approved samples and shop drawings.
(2) Only those materials and/or equipment as are approved by the
resident engineer for storage will be included.
(3) Such materials and/or equipment will be stored separately
and will be readily available for inspection and inventory by the
resident engineer.
(4) Such materials and/or equipment will be protected against
weather, theft and other hazards and will not be subjected to
deterioration.
(5) All of the other terms, provisions, conditions and covenants
contained in the contract shall be and remain in full force and
effect as therein provided.
(6) A supplemental agreement will be executed between the
Government and the contractor with the consent of the contractor's
surety for off-site storage.
(e) The contractor, prior to receiving a progress or final
payment under this contract, shall submit to the contracting officer
a certification that the contractor has made payment from proceeds
of prior payments, or that timely payment will be made from the
proceeds of the progress or final payment then due, to
subcontractors and suppliers in accordance with the contractual
arrangements with them.
(f) The Government reserves the right to withhold payment until
samples, shop drawings, engineer's certificates, additional bonds,
payrolls, weekly statements of compliance, proof of title,
nondiscrimination compliance reports, or any other things required
by this contract, have been submitted to the satisfaction of the
contracting officer.
(End of Clause)
Alternate I (JUL 2002). If the specifications include guarantee
period services, the contracting officer shall include the following
paragraphs as additions to paragraph (b) of the basic clause:
(6)(i) The contractor shall at the time of contract award furnish
the total cost of the guarantee period services in accordance with
specification section(s) covering guarantee period services. The
contractor shall submit, within 15 calendar days of receipt of the
notice to proceed, a guarantee period performance program that shall
include an itemized accounting of the number of work-hours required to
perform the guarantee period service on each piece of equipment. The
contractor shall also submit the established salary costs, including
employee fringe benefits, and what the contractor reasonably expects to
pay over the guarantee period, all of which will be subject to the
contracting officer's approval.
(ii) The cost of the guarantee period service shall be prorated on
an annual basis and paid in equal monthly payments by VA during the
period of guarantee. In the event the installer does not perform
satisfactorily during this period, all payments may be withheld and the
contracting officer shall inform the contractor of the unsatisfactory
performance, allowing the contractor 10 days to correct deficiencies
and comply with the contract. The guarantee period service is subject
to those provisions as set forth in the Payments and Default clauses.
852.236-83 Payments under fixed-price construction contracts
(including NAS).
As prescribed in 832.111, insert the following clause in contracts
that contain a section entitled ``Network Analysis System (NAS).''
Payments Under Fixed-Price Construction Contracts (JUL 2002)
The clause entitled ``Payments Under Fixed-Price Construction
Contracts'' in FAR 52.232-5 is implemented as follows:
(a) Retainage:
(1) The contracting officer may retain funds:
(i) Where the performance under the contract has been determined
to be deficient
[[Page 2777]]
or the contractor has performed in an unsatisfactory manner in the
past; or
(ii) As the contract nears completion, to ensure that
deficiencies will be corrected and that completion is timely.
(2) Examples of deficient performance justifying a retention of
funds include, but are not restricted to, the following:
(i) Unsatisfactory progress as determined by the contracting
officer;
(ii) Failure either to meet schedules in Section Network
Analysis System (NAS), or to process the Interim Arrow Diagram/
Complete Project Arrow Diagram;
(iii) Failure to present submittals in a timely manner; or
(iv) Failure to comply in good faith with approved
subcontracting plans, certifications, or contract requirements.
(3) Any level of retention shall not exceed 10 percent either
where there is determined to be unsatisfactory performance, or when
the retainage is to ensure satisfactory completion. Retained amounts
shall be paid promptly upon completion of all contract requirements,
but nothing contained in this subparagraph shall be construed as
limiting the contracting officer's right to withhold funds under
other provisions of the contract or in accordance with the general
law and regulations regarding the administration of Government
contracts.
(b) The contractor shall submit a schedule of costs in
accordance with the requirements of Section Network Analysis System
(NAS) to the contracting officer for approval within 90 calendar
days after date of receipt of notice to proceed. The approved cost
schedule will be one of the bases for determining progress payments
to the contractor for work completed.
(1) Costs as shown on this schedule must be true costs and,
should the resident engineer so desire, he/she may require the
contractor to submit his/her original estimate sheets or other
information to substantiate the detailed makeup of the cost
schedule.
(2) The total costs of all activities shall equal the contract
price.
(3) Insurance and similar items shall be prorated and included
in each activity cost of the critical path method (CPM) network.
(4) The CPM network shall include a separate cost loaded
activity for adjusting and testing of the systems listed in the
table in paragraph (b)(5) of this section. The percentages listed
below will be used to determine the cost of adjust and test
activities and identify, for payment purposes, the value of the work
to adjust, correct and test systems after the material has been
installed.
(5) Payment for adjust and test activities will be made only
after the contractor has demonstrated that each of the systems is
substantially complete and operates as required by the contract.
Value of Adjusting, Correcting, and Testing System
------------------------------------------------------------------------
System Percent
------------------------------------------------------------------------
Pneumatic tube system........................................ 10
Incinerators (medical waste and trash)....................... 5
Sewage treatment plant equipment............................. 5
Water treatment plant equipment.............................. 5
Washers (dish, cage, glass, etc.)............................ 5
Sterilizing equipment........................................ 5
Water distilling equipment................................... 5
Prefab temperature rooms (cold, constant temperature)........ 5
Entire air-conditioning system (Specified under 600 Sections) 5
Entire boiler plant system (Specified under 700 Sections).... 5
General supply conveyors..................................... 10
Food service conveyors....................................... 10
Pneumatic soiled linen and trash system...................... 10
Elevators and dumbwaiters.................................... 10
Materials transport system................................... 10
Engine-generator system...................................... 5
Primary switchgear........................................... 5
Secondary switchgear......................................... 5
Fire alarm system............................................ 5
Nurse call system............................................ 5
Intercom system.............................................. 5
Radio system................................................. 5
TV (entertainment) system.................................... 5
------------------------------------------------------------------------
(c) In addition to this cost schedule, the contractor shall
submit such unit costs as may be specifically requested. The unit
costs shall be those used by the contractor in preparing his/her bid
and will not be binding as pertaining to any contract changes.
(d) The contracting officer will consider for monthly progress
payments material and/or equipment procured by the contractor and
stored on the construction site, as space is available, or at a
local approved location off the site, under such terms and
conditions as such officer approves, including but not limited to
the following:
(1) The material or equipment is in accordance with the contract
requirements and/or approved samples and shop drawings.
(2) Only those materials and/or equipment as are approved by the
resident engineer for storage will be included.
(3) Such materials and/or equipment will be stored separately
and will be readily available for inspection and inventory by the
resident engineer.
(4) Such materials and/or equipment will be protected against
weather, theft and other hazards and will not be subjected to
deterioration.
(5) All of the other terms, provisions, conditions and covenants
contained in the contract shall be and remain in full force and
effect as therein provided.
(6) A supplemental agreement will be executed between the
Government and the contractor with the consent of the contractor's
surety for off-site storage.
(e) The contractor, prior to receiving a progress or final
payment under this contract, shall submit to the contracting officer
a certification that the contractor has made payment from proceeds
of prior payments, or that timely payment will be made from the
proceeds of the progress or final payment then due, to
subcontractors and suppliers in accordance with the contractual
arrangements with them.
(f) The Government reserves the right to withhold payment until
samples, shop drawings, engineer's certificates, additional bonds,
payrolls, weekly statements of compliance, proof of title,
nondiscrimination compliance reports, or any other things required
by this contract, have been submitted to the satisfaction of the
contracting officer.
(End of Clause)
Alternate I (JUL 2002). If the specifications include guarantee
period services, the contracting officer shall include the following
paragraphs as additions to paragraph (b) of the basic clause:
(6)(i) The contractor shall show on the critical path method (CPM)
network the total cost of the guarantee period services in accordance
with the guarantee period service section(s) of the specifications.
This cost shall be priced out when submitting the CMP cost loaded
network. The cost submitted shall be subject to the approval of the
contracting officer. The activity on the CPM shall have money only and
not activity time.
(ii) The contractor shall submit with the CPM a guarantee period
performance program which shall include an itemized accounting of the
number of work-hours required to perform the guarantee period service
on each piece of equipment. The contractor shall also submit the
established salary costs, including employee fringe benefits, and what
the contractor reasonably expects to pay over the guarantee period, all
of which will be subject to the contracting officer's approval.
(iii) The cost of the guarantee period service shall be prorated on
an annual basis and paid in equal monthly payments by VA during the
period of guarantee. In the event the installer does not perform
satisfactorily during this period, all payments may be withheld and the
contracting officer shall inform the contractor of the unsatisfactory
performance, allowing the contractor 10 days to correct and comply with
the contract. The guarantee period service is subject to those
provisions as set forth in the Payments and Default clauses.
852.236-84 Schedule of work progress.
As prescribed in 836.575, insert the following clause:
Schedule of Work Progress (NOV 1984)
(a) The contractor shall submit with the schedule of costs, a
progress schedule that indicates the anticipated installation of
work versus the elapsed contract time, for the approval of the
contracting officer. The
[[Page 2778]]
progress schedule time shall be represented in the form of a bar
graph with the contract time plotted along the horizontal axis. The
starting date of the schedule shall be the date the contractor
receives the ``Notice to Proceed.'' The ending date shall be the
original contract completion date. At a minimum, both dates shall be
indicated on the progress schedule. The specific item of work, i.e.,
``Excavation'', ``Floor Tile'', ``Finish Carpentry'', etc., should
be plotted along the vertical axis and indicated by a line or bar at
which time(s) during the contract this work is scheduled to take
place. The schedule shall be submitted in triplicate and signed by
the contractor.
(b) The actual percent completion will be based on the value of
installed work divided by the current contract amount. The actual
completion percentage will be indicated on the monthly progress
report.
(c) The progress schedule will be revised when individual or
cumulative time extensions of 15 calendar days or more are granted
for any reason. The revised schedule should indicate the new
contract completion date and should reflect any changes to the
installation time(s) of the items of work affected.
(d) The revised progress schedule will be used for reporting
future scheduled percentage completion.
(End of Clause)
852.236-85 Supplementary labor standards provisions.
As prescribed in 836.576, insert the following clause:
Supplementary Labor Standards Provisions (APR 1984)
(a) The wage determination decision of the Secretary of Labor is
set forth in section GR, General Requirements, of this contract. It
is the result of a study of wage conditions in the locality and
establishes the minimum hourly rates of wages and fringe benefits
for the described classes of labor in accordance with applicable
law. No increase in the contract price will be allowed or authorized
because of payment of wage rates in excess of those listed.
(b) The contractor shall submit the required copies of payrolls
to the contracting officer through the resident engineer or engineer
officer, when acting in that capacity. Department of Labor Form WH-
347, Payroll, available from the Superintendent of Documents,
Government Printing Office, Washington, DC 20402, may be used for
this purpose. If, however, the contractor or subcontractor elects to
use an individually composed payroll form, it shall contain the same
information shown on Form WH-347, and in addition be accompanied by
Department of Labor Form WH-348, Statement of Compliance, or any
other form containing the exact wording of this form.
(End of Clause)
852.236-86 Workers' compensation.
As prescribed in 836.577, insert the following clause:
Workers' Compensation (JAN 2008)
Public Law 107-217 (40 U.S.C. 3172) authorizes the constituted
authority of States to apply their workers compensation laws to all
lands and premises owned or held by the United States.
(End of Clause)
852.236-87 Accident prevention.
As prescribed in 836.513, insert the following clause:
Accident Prevention (SEP 1993)
The Resident Engineer on all assigned construction projects, or
other Department of Veterans Affairs employee if designated in
writing by the Contracting Officer, shall serve as Safety Officer
and as such has authority, on behalf of the Contracting Officer, to
monitor and enforce Contractor compliance with FAR 52.236-13,
Accident Prevention. However, only the Contracting Officer may issue
an order to stop all or part of the work while requiring
satisfactory or corrective action to be taken by the Contractor.
(End of Clause)
852.236-88 Contract changes--supplement.
As prescribed in 836.578, insert the following clause:
Contract Changes--Supplement (JUL 2002)
The clauses entitled ``Changes'' in FAR 52.243-4 and ``Differing
Site Conditions'' in FAR 52.236-2 are supplemented as follows:
(a) Paragraphs (a)(1) through (a)(4) apply to proposed contract
changes costing over $500,000.
(1) When requested by the contracting officer, the contractor
shall submit proposals for changes in work to the resident engineer.
Proposals, to be submitted as expeditiously as possible but within
30 calendar days after receipt of request, shall be in legible form,
original and two copies, with an itemized breakdown that will
include material, quantities, unit prices, labor costs (separated
into trades), construction equipment, etc. (Labor costs are to be
identified with specific material placed or operation performed.)
The contractor must obtain and furnish with a proposal an itemized
breakdown as described above, signed by each subcontractor
participating in the change regardless of tier. When certified cost
or pricing data are required under FAR Subpart 15.403, the cost or
pricing data shall be submitted in accordance with FAR 15.403-5.
(2) When the necessity to proceed with a change does not allow
sufficient time to negotiate a modification or because of failure to
reach an agreement, the contracting officer may issue a change order
instructing the contractor to proceed on the basis of a tentative
price based on the best estimate available at the time, with the
firm price to be determined later. Furthermore, when the change
order is issued, the contractor shall submit a proposal, which
includes the information required by paragraph (a)(1), for cost of
changes in work within 30 calendar days.
(3) The contracting officer will consider issuing a settlement
by determination to the contract if the contractor's proposal
required by paragraphs (a)(1) or (a)(2) of this clause is not
received within 30 calendar days or if agreement has not been
reached.
(4) Bond premium adjustment, consequent upon changes ordered,
will be made as elsewhere specified at the time of final settlement
under the contract and will not be included in the individual
change.
(b) Paragraphs (b)(1) through (b)(11) apply to proposed contract
changes costing $500,000 or less:
(1) When requested by the contracting officer, the contractor
shall submit proposals for changes in work to the resident engineer.
Proposals, to be submitted as expeditiously as possible but within
30 calendar days after receipt of request, shall be in legible form,
original and two copies, with an itemized breakdown that will
include material, quantities, unit prices, labor costs (separated
into trades), construction equipment, etc. (Labor costs are to be
identified with specific material placed or operation performed.)
The contractor must obtain and furnish with a proposal an itemized
breakdown as described above, signed by each subcontractor
participating in the change regardless of tier. When certified cost
or pricing data or information other than cost or pricing data are
required under FAR 15.403, the data shall be submitted in accordance
with FAR 15.403-5. No itemized breakdown will be required for
proposals amounting to less than $1,000.
(2) When the necessity to proceed with a change does not allow
sufficient time to negotiate a modification or because of failure to
reach an agreement, the contracting officer may issue a change order
instructing the contractor to proceed on the basis of a tentative
price based on the best estimate available at the time, with the
firm price to be determined later. Furthermore, when the change
order is issued, the contractor shall submit within 30 calendar
days, a proposal that includes the information required by paragraph
(b)(1) for the cost of the changes in work.
(3) The contracting officer will consider issuing a settlement
by determination to the contract if the contractor's proposal
required by paragraphs (b)(1) or (b)(2) of this clause is not
received within 30 calendar days, or if agreement has not been
reached.
(4) Allowances not to exceed 10 percent each for overhead and
profit for the party performing the work will be based on the value
of labor, material, and use of construction equipment required to
accomplish the change. As the value of the change increases, a
declining scale will be used in negotiating the percentage of
overhead and profit. Allowable percentages on changes will not
exceed the following: 10 percent overhead and 10 percent profit on
the first $20,000; 7-1/2 percent overhead and 7-1/2 percent profit
on the next $30,000; 5 percent overhead and 5 percent profit on
balance over $50,000. Profit shall be computed by multiplying the
profit percentage by the sum of the direct costs and computed
overhead costs.
(5) The prime contractor's or upper-tier subcontractor's fee on
work performed by
[[Page 2779]]
lower-tier subcontractors will be based on the net increased cost to
the prime contractor or upper-tier subcontractor, as applicable.
Allowable fee on changes will not exceed the following: 10 percent
fee on the first $20,000; 7-1/2 percent fee on the next $30,000; and
5 percent fee on balance over $50,000.
(6) Not more than four percentages, none of which exceed the
percentages shown above, will be allowed regardless of the number of
tiers of subcontractors.
(7) Where the contractor's or subcontractor's portion of a
change involves credit items, such items must be deducted prior to
adding overhead and profit for the party performing the work. The
contractor's fee is limited to the net increase to contractor of
subcontractors' portions cost computed in accordance herewith.
(8) Where a change involves credit items only, a proper measure
of the amount of downward adjustment in the contract price is the
reasonable cost to the contractor if he/she had performed the
deleted work. A reasonable allowance for overhead and profit are
properly includable as part of the downward adjustment for a
deductive change. The amount of such allowance is subject to
negotiation.
(9) Cost of Federal Old Age Benefit (Social Security) tax and of
Worker's Compensation and Public Liability insurance appertaining to
changes are allowable. While no percentage will be allowed thereon
for overhead or profit, prime contractor's fee will be allowed on
such items in subcontractors' proposals.
(10) Overhead and contractor's fee percentages shall be
considered to include insurance other than mentioned herein, field
and office supervisors and assistants, security police, use of small
tools, incidental job burdens, and general home office expenses and
no separate allowance will be made therefore. Assistants to office
supervisors include all clerical, stenographic and general office
help. Incidental job burdens include, but are not necessarily
limited to, office equipment and supplies, temporary toilets,
telephone and conformance to OSHA requirements. Items such as, but
not necessarily limited to, review and coordination, estimating and
expediting relative to contract changes are associated with field
and office supervision and are considered to be included in the
contractor's overhead and/or fee percentage.
(11) Bond premium adjustment, consequent upon changes ordered,
will be made as elsewhere specified at the time of final settlement
under the contract and will not be included in the individual
change.
(End of Clause)
852.236-89 Buy American Act.
As prescribed in Table 825.1102, insert the following clause:
Buy American Act (JAN 2008)
(a) Reference is made to the clause entitled ``Buy American
Act--Construction Materials,'' FAR 52.225-9.
(b) Notwithstanding a bidder's right to offer identifiable
foreign construction material in its bid pursuant to FAR 52.225-9,
VA does not anticipate accepting an offer that includes foreign
construction material.
(c) If a bidder chooses to submit a bid that includes foreign
construction material, that bidder must provide a listing of the
specific foreign construction material he/she intends to use and a
price for said material. Bidders must include bid prices for
comparable domestic construction material. If VA determines not to
accept foreign construction material and no comparable domestic
construction material is provided, the entire bid will be rejected.
(d) Any foreign construction material proposed after award will
be rejected unless the bidder proves to VA's satisfaction: (1) it
was impossible to request the exemption prior to award, and (2) said
domestic construction material is no longer available, or (3) where
the price has escalated so dramatically after the contract has been
awarded that it would be unconscionable to require performance at
that price. The determinations required by (1), (2), and (3) of this
paragraph shall be made in accordance with Subpart 825.2 and FAR
25.2.
(e) By signing this bid, the bidder declares that all articles,
materials and supplies for use on the project shall be domestic
unless specifically set forth on the Bid Form or addendum thereto.
(End of Cause)
Alternate I (JAN 2008). As prescribed in Table 825.1102,
substitute the following paragraphs for paragraphs (a) and (b) of
the basic clause:
(a) Reference is made to the clause entitled ``Buy American
Act--Construction Materials under Trade Agreements,'' FAR 52.225-11.
(b) The restrictions contained in this clause 852.236-89 are
waived for designated country construction material as defined in
FAR 52.225-11. Notwithstanding a bidder's right to offer
identifiable foreign construction material in its bid pursuant to
FAR 52.225-11, VA does not anticipate accepting an offer that
includes foreign construction material, other than designated
country construction material.
Alternate II (JAN 2008). As prescribed in Table 825.1102,
substitute the following paragraphs for paragraphs (a) and (b) of
the basic clause:
(a) Reference is made to the clause entitled ``Buy American
Act--Construction Materials under Trade Agreements,'' FAR 52.225-11
and its Alternate I.
(b) The restrictions contained in this clause 852.236-89 are
waived for World Trade Organization (WTO) Government Procurement
Agreement (GPA) country, Australian, Chilean, or Moroccan, least
developed country, or Caribbean Basin country construction material,
as defined in FAR 52.225-11 and its Alternate I. Notwithstanding a
bidder's right to offer identifiable foreign construction material
in its bid pursuant to FAR 52.225-11, VA does not anticipate
accepting an offer that includes foreign construction material,
other than WTO GPA country, Australian, Chilean, or Moroccan, least
developed country, or Caribbean Basin country construction material.
852.236-90 Restriction on submission and use of equal products.
As prescribed in 836.202(c), the following clause shall be included
in the solicitation if it is determined that only one product will meet
the Government's minimum needs and the Department of Veterans Affairs
will not allow the submission of ``equal'' products:
Restriction on Submission and Use of Equal Products (NOV 1986)
The clause applies to the following items:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Notwithstanding the ``Material and Workmanship'' clause of this
contract, FAR 52.236-5(a), nor any other contractual provision,
``equal'' products will not be considered by the Department of
Veterans Affairs and may not be used.
(End of Clause)
852.236-91 Special notes.
As prescribed in 836.579, insert the following clause:
Special Notes (JUL 2002)
(a) Signing of the bid shall be deemed to be a representation by
the bidder that:
(1) Bidder is a construction contractor who owns, operates, or
maintains a place of business, regularly engaged in construction,
alteration, or repair of buildings, structures, and communications
facilities, or other engineering projects, including furnishing and
installing of necessary equipment; or
(2) If newly entering into a construction activity, bidder has
made all necessary arrangements for personnel, construction
equipment, and required licenses to perform construction work; and
(3) Upon request, prior to award, bidder will promptly furnish
to the Government a statement of facts in detail as to bidder's
previous experience (including recent and current contracts),
organization (including company officers), technical qualifications,
financial resources and facilities available to perform the
contemplated work.
(b) Unless otherwise provided in this contract, where the use of
optional materials or construction is permitted, the same standard
of workmanship, fabrication and installation shall be required
irrespective of which option is selected. The contractor shall make
any change or adjustment in connecting work or otherwise
necessitated by the use of such optional material or construction,
without additional cost to the Government.
(c) When approval is given for a system component having
functional or physical characteristics different from those
indicated or specified, it is the responsibility of the contractor
to furnish and install related components with characteristics and
capacities compatible with the approved substitute component as
required for systems to function as noted on drawings and
[[Page 2780]]
specifications. There shall be no additional cost to the Government.
(d) In some instances it may have been impracticable to detail
all items in specifications or on drawings because of variances in
manufacturers' methods of achieving specified results. In such
instances the contractor will be required to furnish all labor,
materials, drawings, services and connections necessary to produce
systems or equipment which are completely installed, functional, and
ready for operation by facility personnel in accordance with their
intended use.
(e) Claims by the contractor for delay attributed to unusually
severe weather must be supported by climatological data covering the
period and the same period for the 10 preceding years. When the
weather in question exceeds in intensity or frequency the 10-year
average, the excess experienced shall be considered ``unusually
severe.'' Comparison shall be on a monthly basis. Whether or not
unusually severe weather in fact delays the work will depend upon
the effect of weather on the branches of work being performed during
the time under consideration.
(End of Clause)
852.237-7 Indemnification and Medical Liability Insurance.
As prescribed in 837.403, insert the following clause:
Indemnification and Medical Liability Insurance (JAN 2008)
(a) It is expressly agreed and understood that this is a non-
personal services contract, as defined in Federal Acquisition
Regulation (FAR) 37.101, under which the professional services
rendered by the Contractor or its health-care providers are rendered
in its capacity as an independent contractor. The Government may
evaluate the quality of professional and administrative services
provided but retains no control over professional aspects of the
services rendered, including by example, the Contractor's or its
health-care providers' professional medical judgment, diagnosis, or
specific medical treatments. The Contractor and its health-care
providers shall be liable for their liability-producing acts or
omissions. The Contractor shall maintain or require all health-care
providers performing under this contract to maintain, during the
term of this contract, professional liability insurance issued by a
responsible insurance carrier of not less than the following
amount(s) per specialty per occurrence: [Contracting Officer's Note:
Insert the dollar amount value(s) of standard coverage(s) prevailing
within the local community as to the specific medical specialty, or
specialties, concerned, or such higher amount as the Contracting
Officer deems necessary to protect the Government's interests.]
However, if the Contractor is an entity or a subdivision of a State
that either provides for self-insurance or limits the liability or
the amount of insurance purchased by State entities, then the
insurance requirement of this contract shall be fulfilled by
incorporating the provisions of the applicable State law.
(b) An apparently successful offeror, upon request of the
Contracting Officer, shall, prior to contract award, furnish
evidence of the insurability of the offeror and/or of all health-
care providers who will perform under this contract. The submission
shall provide evidence of insurability concerning the medical
liability insurance required by paragraph (a) of this clause or the
provisions of State law as to self-insurance, or limitations on
liability or insurance.
(c) The Contractor shall, prior to commencement of services
under the contract, provide to the Contracting Officer Certificates
of Insurance or insurance policies evidencing the required insurance
coverage and an endorsement stating that any cancellation or
material change adversely affecting the Government's interest shall
not be effective until 30 days after the insurer or the Contractor
gives written notice to the Contracting Officer. Certificates or
policies shall be provided for the Contractor and/or each health-
care provider who will perform under this contract.
(d) The Contractor shall notify the Contracting Officer if it,
or any of the health-care providers performing under this contract,
change insurance providers during the performance period of this
contract. The notification shall provide evidence that the
Contractor and/or health-care providers will meet all the
requirements of this clause, including those concerning liability
insurance and endorsements. These requirements may be met either
under the new policy, or a combination of old and new policies, if
applicable.
(e) The Contractor shall insert the substance of this clause,
including this paragraph (e), in all subcontracts for health-care
services under this contract. The Contractor shall be responsible
for compliance by any subcontractor or lower-tier subcontractor with
the provisions set forth in paragraph (a) of this clause.
(End of Clause)
852.237-70 Contractor responsibilities.
As prescribed in 837.110, insert the following clause:
Contractor Responsibilities (APR 1984)
The contractor shall obtain all necessary licenses and/or
permits required to perform this work. He/she shall take all
reasonable precautions necessary to protect persons and property
from injury or damage during the performance of this contract. He/
she shall be responsible for any injury to himself/herself, his/her
employees, as well as for any damage to personal or public property
that occurs during the performance of this contract that is caused
by his/her employees fault or negligence, and shall maintain
personal liability and property damage insurance having coverage for
a limit as required by the laws of the State of [ ]. Further, it is
agreed that any negligence of the Government, its officers, agents,
servants and employees, shall not be the responsibility of the
contractor hereunder with the regard to any claims, loss, damage,
injury, and liability resulting there from.
(End of Clause)
852.246-70 Guarantee.
As prescribed in 846.302-70, insert the following clause:
Guarantee (JAN 2008)
The contractor guarantees the equipment against defective
material, workmanship and performance for a period of [ ]\1\, said
guarantee to run from date of acceptance of the equipment by the
Government. The contractor agrees to furnish, without cost to the
Government, replacement of all parts and material that are found to
be defective during the guarantee period. Replacement of material
and parts will be furnished to the Government at the point of
installation, if installation is within the continental United
States, or f.o.b. the continental U.S. port to be designated by the
contracting officer if installation is outside of the continental
United States. Cost of installation of replacement material and
parts shall be borne by the contractor.\2\
(End of Clause)
\1\ Normally, insert one year. If industry policy covers a
shorter or longer period, i.e., 90 days or for the life of the
equipment, insert such period.
\2\ The above clause will be modified to conform to standards of
the industry involved.
852.246-71 Inspection.
As prescribed in 846.302-71(a), insert the following clause:
Inspection (JAN 2008)
Rejected goods will be held subject to contractors order for not
more than 15 days, after which the rejected merchandise will be
returned to the contractor's address at his/her risk and expense.
Expenses incident to the examination and testing of materials or
supplies that have been rejected will be charged to the contractor's
account.
(End of Clause)
Alternate I (JAN 2008). As provided in 846.302-71(b), insert the
following clause:
Inspection (JAN 2008)
The contractor shall remove rejected supplies within 48 hours
after notice of rejection. Supplies determined to be unfit for human
consumption will not be removed without permission of the local
health authorities. Supplies not removed within the allowed time may
be destroyed. The Department of Veterans Affairs will not be
responsible for nor pay for products rejected. The contractor will
be liable for costs incident to examination of rejected products.
(End of Clause)
852.246-72 Frozen processed foods.
As prescribed in 846.302-72, insert the following clause:
Frozen Processed Foods (JAN 2008)
The products delivered under this contract shall be in excellent
condition, shall not show evidence of defrosting, refreezing, or
[[Page 2781]]
freezer burn and shall be transported and delivered to the consignee
at a temperature of 0 degrees Fahrenheit or lower.
(End of Clause)
852.246-73 Noncompliance with packaging, packing, and/or marking
requirements.
As prescribed in 846.302-73, insert the following clause:
Noncompliance With Packaging, Packing and/or Marking Requirements (JAN
2008)
Failure to comply with the packaging, packing and/or marking
requirements indicated herein, or incorporated herein by reference,
may result in rejection of the merchandise and request for
replacement or repackaging, repacking, and/or marking. The
Government reserves the right, without obtaining authority from the
contractor, to perform the required repackaging, repacking, and/or
marking services and charge the contractor at the actual cost to the
Government for the same or have the required repackaging, repacking,
and/or marking services performed commercially under Government
order and charge the contractor at the invoice rate. In connection
with any discount offered, time will be computed from the date of
completion of such repackaging, repacking and/or marking services.
(End of Clause)
852.246-74 Special warranties.
As prescribed in 846.710-70, insert the following clause:
Special Warranties (JAN 2008)
The clause entitled ``Warranty of Construction'' in FAR 52.246-
21 is supplemented as follows:
Any special warranties that may be required under the contract
shall be subject to the elections set forth in the FAR clause at
52.246-21, Warranty of Construction, unless otherwise provided for
in such special warranties.
(End of Clause)
852.246-75 Warranty for construction--guarantee period services.
As prescribed in 846.710-71, insert the following clause:
Warranty for Construction--Guarantee Period Services (JAN 2008)
The clause entitled ``Warranty of Construction'' in FAR 52.246-
21 is supplemented as follows:
Should the contractor fail to prosecute the work or fail to
proceed promptly to provide guarantee period services after
notification by the contracting officer, the Government may, subject
to the default clause contained at FAR 52.249-10, Default (Fixed-
Price Construction), and after allowing the contractor 10 days to
correct and comply with the contract, terminate the right to proceed
with the work (or the separable part of the work) that has been
delayed or unsatisfactorily performed. In this event, the Government
may take over the work and complete it by contract or otherwise, and
may take possession of and use any materials, appliances, and plant
on the work site necessary for completing the work. The contractor
and its sureties shall be liable for any damages to the Government
resulting from the contractor's refusal or failure to complete the
work within this specified time, whether or not the contractor's
right to proceed with the work is terminated. This liability
includes any increased costs incurred by the Government in
completing the work.
(End of Clause)
852.247-70 Determining transportation costs for bid evaluation.
As prescribed in 847.305-70, insert the following provision:
Determining Transportation Costs for Bid Evaluation (APR 1984)
For the purpose of evaluating bids and for no other purpose, the
delivered price per unit will be determined by adding the nationwide
average transportation charge to the f.o.b. origin bid prices. The
nationwide average transportation charge will be determined by
applying the following formula: Multiply the guaranteed shipping
weight by the freight, parcel post, or express rate, whichever is
proper, to each destination shown below and then multiply the
resulting transportation charges by the anticipated demand factor
shown for each destination. Total the resulting weighted
transportation charges for all destinations and divide the total by
20 to give the nationwide average transportation charge.
Anticipated Demand
------------------------------------------------------------------------
Area destination Factor
------------------------------------------------------------------------
Oakland, California.......................................... 3
Dallas, Texas................................................ 2
Omaha, Nebraska.............................................. 3
Fort Wayne, Indiana.......................................... 4
Atlanta, Georgia............................................. 3
New York, New York........................................... 5
Total of factors......................................... 20
------------------------------------------------------------------------
(End of Provision)
852.252-70 Solicitation provisions or clauses incorporated by
reference.
As prescribed in 852.102(a), insert the following provision:
Solicitation Provisions or Clauses Incoporated by Reference (JAN 2008)
The following provisions or clauses incorporated by reference in
this solicitation must be completed by the offeror or prospective
contractor and submitted with the quotation or offer. Copies of
these provisions or clauses are available on the Internet at the Web
sites provided in the provision at FAR 52.252-1, Solicitation
Provisions Incorporated by Reference, or the clause at FAR 52.252-2,
Clauses Incorporated by Reference. Copies may also be obtained from
the contracting officer.
[Contracting officer shall list all FAR and 48 CFR Chapter 8
(VAAR) provisions and clauses incorporated by reference that must be
completed by the offeror or prospective contractor and submitted
with the quotation or offer.]
(End of Provision)
852.270-1 Representatives of contracting officers.
As prescribed in 801.603-70(d), insert the following provision:
Representatives of Contracting Officers (JAN 2008)
The contracting officer reserves the right to designate
representatives to act for him/her in furnishing technical guidance
and advice or generally monitor the work to be performed under this
contract. Such designation will be in writing and will define the
scope and limitation of the designee's authority. A copy of the
designation shall be furnished to the contractor.
(End of Provision)
852.270-2 Bread and bakery products--quantities.
As prescribed in 870.111-3, insert the following clause:
Bread and Bakery Products--Quantities (JAN 2008)
The bidder agrees to furnish up to 25 percent more or 25 percent
less than the quantities awarded when ordered by the Department of
Veterans Affairs.
(End of Clause)
852.270-3 Purchase of shellfish.
As prescribed in 870.111-3, insert the following clause:
Purchase of Shellfish (APR 1984)
The bidder certifies that oysters, clams, and mussels will be
furnished only from plants approved by and operated under the
supervision of shellfish authorities of States whose certifications
are endorsed currently by the U.S. Public Health Service, and the
names and certificate numbers of those shellfish dealers must appear
on current lists published by the U.S. Public Health Service. These
items shall be packed and delivered in approved containers, sealed
in such manner that tampering is easily discernible, and marked with
packer's certificate number impressed or embossed on the side of
such containers and preceded by the State abbreviation. Containers
shall be tagged or labeled to show the name and address of the
approved producer or shipper, the name of the State of origin, and
the certificate number of the approved producer or shipper.
(End of Clause)
852.271-70 Nondiscrimination in services provided to beneficiaries.
As prescribed in 837.110-70 and 871.212, insert the following
provision:
[[Page 2782]]
Nondiscrimination in Services Provided to Beneficiaries (JAN 2008)
The contractor agrees to provide all services specified in this
contract for any person determined eligible by the Department of
Veterans Affairs, regardless of the race, color, religion, sex, or
national origin of the person for whom such services are ordered.
The contractor further warrants that he/she will not resort to
subcontracting as a means of circumventing this provision.
(End of Provision)
852.271-71 [Reserved].
852.271-72 Time spent by counselee in counseling process.
As prescribed in 871.212, insert the following clause:
Time Spent by Counselee in Counseling Process (APR 1984)
The contractor agrees that no counselee referred under the
provisions of this agreement will be required to give any extra time
in connection with the counseling process to supply test results or
other information for purposes other than those specified in this
contract.
(End of Clause)
852.271-73 Use and publication of counseling results.
As prescribed in 871.212, insert the following clause:
Use and Publication of Counseling Results (JAN 2008)
The contractor agrees that none of the information or data
gathered in connection with the services specified in this contract
or studies or materials based thereon or relating thereto will be
publicized without the prior approval of the Under Secretary for
Benefits or his/her designee.
(End of Clause)
852.271-74 Inspection.
As prescribed in 871.212, insert the following clause:
Inspection (JAN 2008)
The contractor will permit the duly authorized representative of
the Department of Veterans Affairs to visit the place of instruction
or the counseling and testing operations as may be necessary and
examine the training facilities, the work of the veterans in
training under this contract, and the records of these operations.
(End of Clause)
852.271-75 Extension of contract period.
As prescribed in 871.212, insert the following clause:
Extension of Contract Period (APR 1984)
This contract may be extended from year to year if agreeable to
both parties provided the agreement for extension is consummated 30
days prior to the expiration date, and further provided that there
is no change in the provisions, terms, conditions, or rate of
payment. Any extension made hereunder is subject to the availability
of funds during the period covered by the extension.
(End of Clause)
852.273-70 Late offers.
As prescribed in 873.110(a), insert the following provision:
Late Offers (JAN 2003)
This provision replaces paragraph (f) of FAR provision 52.212-1.
Offers or modifications of offers received after the time set forth
in a request for quotations or request for proposals may be
considered, at the discretion of the contracting officer, if
determined to be in the best interest of the Government. Late bids
submitted in response to an invitation for bid (IFB) will not be
considered.
(End of Provision)
852.273-71 Alternative negotiation techniques.
As prescribed in 873.110(b), insert the following provision:
Alternative Negotiation Techniques (JAN 2003)
The contracting officer may elect to use the alternative
negotiation techniques described in section 873.111(e) of 48 Code of
Federal Regulations Chapter 8 in conducting this procurement. If
used, offerors may respond by maintaining offers as originally
submitted, revising offers, or submitting an alternative offer. The
Government may consider initial offers unless revised or withdrawn,
revised offers, and alternative offers in making the award. Revising
an offer does not guarantee an offeror an award.
(End of Provision)
852.273-72 Alternative evaluation.
As prescribed in 873.110(c), insert the following provision:
Alternative Evaluation (JAN 2003)
(a) The Government will award a contract resulting from this
solicitation to the responsible offeror submitting the lowest priced
offer that conforms to the solicitation. During the specified period
for receipt of offers, the amount of the lowest offer will be posted
and may be viewed by [Contracting officer insert description of how
the information may be viewed electronically or otherwise]. Offerors
may revise offers anytime during the specified period. At the end of
the specified time period for receipt of offers, the responsible
offeror submitting the lowest priced offer will be in line for
award.
(b) Except when it is determined not to be in the Government's
best interest, the Government will evaluate offers for award
purposes by adding the total price for all options to the total
price for the basic requirement. The Government may determine that
an offer is unacceptable if the option prices are materially
unbalanced. Evaluation of options shall not obligate the Government
to exercise the option(s).
(End of provision)
852.273-73 Evaluation--health-care resources.
As prescribed in 873.110(d), in lieu of FAR provision 52.212-2, the
contracting officer may insert a provision substantially as follows:
Evaluation--Health-Care Resources (JAN 2003)
(a) The Government will award a contract resulting from this
solicitation to the responsible offeror whose offer, conforming to
the solicitation, will be most advantageous to the Government, price
and other factors considered. The following information or factors
shall be used to evaluate offers: [Contracting officer insert
evaluation information or factors, such as technical capability to
meet the Government's requirements, past performance, or such other
evaluation information or factors as the contracting officer deems
necessary to evaluate offers. Price must be evaluated in every
acquisition. The contracting officer may include the evaluation
information or factors in their relative order of importance, such
as in descending order of importance. The relative importance of any
evaluation information must be stated in the solicitation.]
(b) Except when it is determined not to be in the Government's
best interest, the Government will evaluate offers for award
purposes by adding the total price for all options to the total
price for the basic requirement. The Government may determine that
an offer is unacceptable if the option prices are materially
unbalanced. Evaluation of options shall not obligate the Government
to exercise the option(s).
(c) If this solicitation is a request for proposals (RFP), a
written notice of award or acceptance of an offer, mailed or
otherwise furnished to the successful offeror within the time for
acceptance specified in the offer, shall result in a binding
contract without further action by either party. Before the offer's
specified expiration time, the Government may accept an offer (or
part of an offer), whether or not there are negotiations after its
receipt, unless a written notice of withdrawal is received before
award.
(End of provision)
852.273-74 Award without exchanges.
As prescribed in 873.110(e), insert the following provision:
Award Without Exchanges (JAN 2003)
The Government intends to evaluate proposals and award a
contract without exchanges with offerors. Therefore, each initial
offer should contain the offeror's best terms from a cost or price
and technical standpoint. However, the Government reserves the right
to conduct exchanges if later determined by the contracting officer
to be necessary.
[[Page 2783]]
(End of provision)
PART 853--FORMS
Sec.
853.000 Scope of part.
Subpart 853.1--General
853.107 Obtaining forms.
Subpart 853.2--Prescription of Forms
853.201 Federal acquisition system.
853.201-1 Contracting authority and responsibilities (SF 1402).
853.213 Simplified acquisition procedures (SF's 18, 30, 44, 1165,
1449, and OF's 336, 347, and 348).
853.215 Contracting by negotiation.
853.215-70 VA Form 10-1170, Application for Furnishing Nursing Home
Care to Beneficiaries of VA.
853.236 Construction and architect-engineer contracts.
853.236-70 VA Form 10-6298, Architect-Engineer Fee Proposal.
853.271 Loan Guaranty, Education and Vocational Rehabilitation and
Employment Programs.
853.271-1 Loan Guaranty Program (VA Forms 26-6724 and 26-1839).
853.271-2 Education Programs.
Subpart 853.3--Illustration of Forms
853.300 Scope of subpart.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
853.000 Scope of part.
This part prescribes VA forms for use in the acquisition of goods
and services. It only identifies forms that are used between VA and its
contractors or the general public. It does not identify forms for uses
internal to VA or between VA and another Federal agency.
Subpart 853.1--General
853.107 Obtaining forms.
The VA forms may be obtained from any VA contracting office or by
requesting such forms from the Deputy Assistant Secretary for
Acquisition and Materiel Management, Department of Veterans Affairs,
810 Vermont Avenue, NW., Washington, DC 20420.
Subpart 853.2--Prescription of Forms
853.201 Federal acquisition system.
853.201-1 Contracting authority and responsibilities (SF 1402).
Standard Form (SF) 1402, Certificate of Appointment, is used in
accordance with FAR 1.603-3, Appointment, to appoint VA contracting
officers under VA's Contracting Officer Certification Program (see
801.690-6).
853.213 Simplified acquisition procedures (SF's 18, 30, 44, 1165,
1449, and OF's 336, 347, and 348).
The following forms are prescribed as stated in this section for
use in simplified acquisition procedures, orders under existing
contracts or agreements, orders from required sources of supplies and
services, and orders for other supplies or services:
(a) VA Forms 90-2138, Order for Supplies or Services, or 90-2138-
ADP, Purchase Order for Supplies or Service, shall be used as indicated
in 813.307. They may be used in lieu of OF 347, Order of Supplies and
Services, or Standard Form 1449, Solicitation/Contract/Order for
Commercial Items.
(b) The following forms are for use for obtaining indicated medical
and dental services within the limitations prescribed in 813.307:
(1) VA Form 10-7078, Authorization and Invoice for Medical and
Hospital Services.
(2) VA Form 10-7079, Request for Outpatient Medical Services.
(3) VA Form 10-2570d, Dental Record Authorization and Invoice for
Outpatient Service.
(c) VA Form 10-2511, Authority and Invoice for Travel by Ambulance
or Other Hired Vehicle, will be used as prescribed in 813.307.
(d) VA Form 10-2421, Prosthetics Authorization and Items and
Services, will be used for indicated procurements not to exceed $300 as
prescribed in 813.307.
853.215 Contracting by negotiation.
853.215-70 VA Form 10-1170, Application for Furnishing Nursing Home
Care to Beneficiaries of VA.
VA Form 10-1170, Application for Furnishing Nursing Home Care to
Beneficiaries of VA, will be used for establishing contract nursing
home care for VA beneficiaries.
853.236 Construction and architect-engineer contracts.
853.236-70 VA Form 10-6298, Architect-Engineer Fee Proposal.
VA Form 10-6298, Architect-Engineer Fee Proposal, shall be used as
prescribed in 836.606-71.
853.271 Loan Guaranty, Education and Vocational Rehabilitation and
Counseling Programs.
853.271-1 Loan Guaranty Program (VA Forms 26-6724 and 26-1839).
(a) VA Form 26-6724, Invitation, Bid, and/or Acceptance or
Authorization, will be used in obtaining services specified in Subpart
871.1.
(b) VA Form 26-1839, Compliance Inspection Report, will be used for
inspection of repairs for properties under the Loan Guaranty Program as
specified in 846.472.
853.271-2 Education Programs.
To obtain education or rehabilitation services, contracting
officers may use an individual written contract or VA Form 28-1905,
Authorization and Certification of Entrance or Reentrance into
Rehabilitation and Certification of Status.
Subpart 853.3--Illustration of Forms
853.300 Scope of subpart.
VA Forms will not be illustrated in this VAAR. Persons wishing to
obtain copies of VA forms prescribed in the VAAR may do so in
accordance with 853.107. VA forms may also be available on the Web at
http://www.va.gov/vaforms/.
SUBCHAPTER I--DEPARTMENT SUPPLEMENTARY REGULATIONS
PART 870--SPECIAL PROCUREMENT CONTROLS
Subpart 870.1--Controls
Sec.
870.111 Subsistence.
870.111-3 Contract clauses.
870.111-5 Frozen processed food products.
870.112 Telecommunications equipment.
870-113 Paid use of conference facilities.
870.115 Food service equipment.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
Subpart 870.1--Controls
870.111 Subsistence.
870.111-3 Contract clauses.
(a) The contracting officer shall include the clause at 852.270-2,
Bread and bakery products--quantities, in solicitations and contracts
for bread and bakery products.
(b) The contracting officer shall include the clause at 852.270-3,
Purchase of shellfish, in solicitations and contracts for shellfish.
870.111-5 Frozen processed food products.
(a) The following frozen processed food products must have a label
complying with the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301
et seq.), which requires that all ingredients be listed according to
the order of their predominance:
(1) Frozen processed food products that contain meat, poultry, or a
significant proportion of eggs.
(2) Frozen processed food products that contain fish or fish
products.
(3) Frozen bakery products.
[[Page 2784]]
(b) All procured frozen processed food products that contain meat,
poultry or a significant proportion of eggs must meet the following
requirements:
(1) The products must be processed or prepared in plants operating
under the supervision of the Department of Agriculture (USDA).
(2) The product must be inspected and approved in accordance with
USDA regulations governing meat, poultry, or egg inspection. A label or
seal that indicates compliance with USDA regulations, affixed to the
container, will be accepted as evidence of compliance.
(c) All procured frozen processed food products that contain fish
or fish products must meet the following requirements:
(1) The product must be processed or prepared in plants operated
under the supervision of the Department of Commerce (DOC). The products
listed in DOC's publication ``Approved List of Sanitarily Inspected
Fish Establishments'' are processed in plants under Federal inspection
of the National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, DOC. The inspected products packed under
various labels bearing the brand names are produced in accordance with
current U.S. Grade Standards or official product specifications, packed
under optimum hygienic conditions, and must meet Federal, State, and
city sanitation and health regulations. Such brand label or DOC seal
indicating compliance with DOC regulations, affixed to a container,
will be accepted as evidence of compliance.
(2) If the condition in paragraph (c)(1) of this section was not
met (no seal), the shipment may be lot-inspected by the DOC, and
containers stamped to indicate acceptance or a Certification of
Inspection issued to accompany the shipment.
(d) Producers of frozen bakery products that ship products in
interstate commerce are required to comply with the Federal Food, Drug
and Cosmetic Act. Therefore, the product must be verified as shipped
interstate or that the producer ships products to other purchasers
interstate.
870.112 Telecommunications equipment.
(a) The contracting officer must include the clause at 852.211-71,
Special notice in solicitations, including those for construction, that
are based on detailed purchase descriptions or formal specifications
for telecommunications equipment, as defined in VA manual MP-6, Part
VIII (available at any VA facility).
(b) The Telecommunications Support Service must review and approve
the descriptive literature required by the clause in 852.211-71,
Special notice, furnished by the contractor after award, before
delivery or installation by the contractor. Promptly upon receipt of
the descriptive literature, contracting officers will forward it,
together with a copy of the contract, the formal specification, or the
detailed purchase description, to the DSPE.
(c) Solicitations, including those for construction, for
telecommunications equipment based on ``brand name or equal'' purchase
description are subject to the following:
(1) Before award, contracting officers will forward to the DSPE the
abstract of bids, one copy of each offer received, including
descriptive literature and pertinent letters, and the comments and
recommendations of the contracting officer.
(2) No commitments are to be made to contractors before receiving
Central Office's response.
(3) The solicitation must allow at least 30 calendar days for
acceptance to allow sufficient time for the review required by this
paragraph. (See FAR 52.214-16.)
870.113 Paid use of conference facilities.
When contracting for the use of conference facilities, contracting
officers shall follow and comply with the Federal Travel Regulation, 41
CFR Part 301-74, Conference Planning, and shall document the contract
file as specified therein, including documentation of efforts to locate
Government-owned space and efforts to reduce costs.
870.115 Food service equipment.
(a) All new food service equipment purchased for Dietetic Service
through other than Defense General Supply Center sources must meet
requirements set forth by the National Sanitation Foundation.
(b) The contracting officer will accept an affixed National
Sanitation Foundation label and/or documentation of the certification
by the National Sanitation Foundation from the contractor as evidence
that the subject equipment meets sanitation standards issued by the
National Sanitation Foundation.
PART 871--LOAN GUARANTY AND VOCATIONAL REHABILITATION AND
EMPLOYMENT PROGRAMS
Subpart 871.1--Loan Guaranty and Direct Loan Programs
Sec.
871.100 Scope of subpart.
871.101 Policy.
871.102 Authorization for repairs to properties.
871.104 Qualification of bidders.
871.106 Lien waivers.
871.107 Stipulations against liens.
Subpart 871.2--Vocational Rehabilitation and Employment Service
871.200 Scope of subpart.
871.201 General.
871.201-1 Requirements for the use of contracts.
871.201-2 Requirements when contracts are not required.
871.201-3 Medical services.
871.201-4 Letter contracts.
871.202 Marking and release of supplies.
871.203 Renewals or supplements to contracts.
871.204 Guaranteed payment.
871.205 Proration of charges.
871.206 Other fees and charges.
871.207 Payment of tuition or fees.
871.208 Rehabilitation facilities.
871.209 Records and reports.
871.210 Correspondence courses.
871.211 Information concerning correspondence courses.
871.212 Contract clauses.
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); and 48 CFR 1.301-
1.304.
Subpart 871.1--Loan Guaranty and Direct Loan Programs
871.100 Scope of subpart.
This subpart sets forth policy and procedures with respect to the
loan guaranty and direct loan programs as they pertain to property
management, including the acquisition, management, and disposition of
property, real, personal, or mixed, that were secured by loans
guaranteed, insured, or made under Title 38, U.S.C.
871.101 Policy.
All acquisitions for the repair and maintenance of VA property
acquired under 38 U.S.C. Chapter 37 must be made in accordance with FAR
Parts 14, 15, and 16, Parts 814, 815, and 816 of this chapter, and this
subpart.
871.102 Authorization for repairs to properties.
(a) Except as provided in this subpart, Directors, Loan Guaranty
Officers, and Assistant Loan Guaranty Officers, VA Regional Offices,
are authorized to approve a repair program for any VA property acquired
under Chapter 37, Title 38, U.S.C., if the cost does not exceed
$25,000. A repair program means the aggregate amount of the proposed
contracts that are contemplated in a property analysis by the Loan
Guaranty activity.
(b) In cases where the expenditure is known or estimated to exceed
$25,000, the Loan Guaranty Officer, or his or her designee, must
forward the request,
[[Page 2785]]
together with the loan guaranty folder, to the Under Secretary for
Benefits for approval.
(c) During the period when VA has assumed custody of the property
from a holder and before its conveyance to VA under 38 CFR 36.4320,
repairs not in excess of $3,500 are authorized, when appropriate to
make the property ready for sale at an earlier date than would
otherwise be possible if the repair program was delayed until VA
acquired absolute title. In cases where the expenditure is known or
estimated to exceed $3,500, the Loan Guaranty Officer, or his or her
designee, must forward the request, together with the loan guarantee
folder, to the Under Secretary for Benefits for approval.
(d) The holder must not make repairs to a property when it has
continued custody, except for emergency repairs not in excess of $500,
unless the holder gives adequate notice to the Director, Regional
Office. Emergency repairs means immediate action to preserve the
property from serious damage or to correct a situation imminently
dangerous to life or limb, including the initial cleanup of the
property to prevent the risk of damage by fire or vandalism.
(e) An approved management broker may be authorized, when the
property is assigned, to incur expenses for fuel and utilities or other
recurring items that VA is required to furnish to its tenants or are
required to maintain the property if the following conditions are met:
(1) Advance blanket authorization to a management broker must be
limited to repairs not in excess of $500 in any transaction.
(2) The management broker must either submit receipts with an
invoice or maintain receipts for inspection.
(3) Expenditures in excess of $500 require prior approval of the
Director, Regional Office, having jurisdiction of the property.
(4) The management broker must aggregate the costs of repairs when
determining whether prior approval is required.
871.104 Qualification of bidders.
(a) Bidders must be qualified in accordance with procedures
outlined in FAR Subpart 9.1 and Subpart 809.1 of this chapter.
(b) Management brokers are not acceptable bidders for a repair
contract due to their close association on a fee basis with VA. This
restriction also applies to any contracting firm in which the
management broker has an interest and in which it could be presumed
that the firm would have an advantage over the other bidders. This does
not preclude the management broker from performing routine recurring
maintenance or minor repairs. When seeking payment for maintenance or
repairs, the management broker must establish that any charges are not
in excess of the prevailing fees for similar services in the area.
871.106 Lien waivers.
(a) In a contract for $2,500 or more, the contracting officer must
include the following requirements:
(1) The contractor must sign a formal release in full or a lien
waiver before payment may be made.
(2) The contractor must notify the Director, Regional Office, of
any subcontracts for services or materials in excess of $2,500. Each
subcontractor must sign the release or waiver jointly with the prime
contractor or exercise a release or waiver in the subcontractor's own
name.
(b) The contracting officer must not pay the contractor unless the
release or waiver accompanies the contractor's invoice.
(c) Before any authorized partial payment, the contractor must
execute a release or waiver.
(d) Due to the variations of local law, no standard release or
waiver is prescribed. Each release or waiver must be prepared in
accordance with local law and must be in form acceptable to the
District Counsel.
871.107 Stipulations against liens.
(a) In a contract for an amount less than $2,500, when determined
necessary by the Director, Regional Office, the contracting officer may
include the following:
The contractor expressly waives any and all rights to file or
maintain any mechanics lien or claim against the aforesaid premises.
(b) In a contract for $2,500 or more when there is doubt that the
final responsibility of the contractor will provide maximum protection
to the Government, the contracting officer must include any
requirements that are available under local law. The contracting
officer must obtain advice and approval of any contract stipulation or
legal stipulations against liens from the District Counsel.
Subpart 871.2--Vocational Rehabilitation and Employment Service
871.200 Scope of subpart.
This subpart establishes policy and procedures for the vocational
rehabilitation and employment services as it pertains to the following:
(a) Contracts for training and rehabilitation services.
(b) Approval of institutions (including rehabilitation facilities),
training establishments, and employers under 38 U.S.C. Chapter 31.
(c) Contracts for counseling services under 38 U.S.C. Chapters 30,
31, 32, 35, and 36 and 10 U.S.C. Chapters 106, 107, and 1606.
871.201 General.
871.201-1 Requirements for the use of contracts.
The VA negotiates contracts for tuition, fees, books, supplies, and
other allowable expenses incurred by an institution, training
establishment, or employer for the training and rehabilitation of
eligible veterans under 38 U.S.C. Chapter 31 when the following
services are provided:
(a) Courses of instruction by correspondence means a course of
education or training conducted by mail consisting of regular lessons
or reading assignments, the preparation of required written work that
involves the application of principles studied in each lesson, the
correction of assigned work with such suggestions or recommendation as
may be necessary to instruct the student, the keeping of student
achievement records, and issuance of a diploma, certificate, or other
evidence to the student upon satisfactorily completing the requirements
of the course.
(b) Special services or special courses that are furnished at the
request of the VA. Special services or courses are those services or
courses that VA requests that are over and above those the institution
customarily provides for similarly circumstanced non-veterans and that
the contracting officer considers to be necessary for the
rehabilitation of the trainee.
871.201-2 Requirements when contracts are not required.
(a) For the purpose of this section a contract is not required when
all tuition, fees, and charges for books, supplies, or services
necessary to train or educate an eligible veteran under 38 U.S.C.
Chapter 31 are published in the school catalog or other published
document.
(b) When a contract is not required, the Vocational Rehabilitation
and Employment Officer must obtain a signed statement of charges from
the educational institution or training establishment for courses to be
offered, including the rate of tuition, fees, and separate charges, if
any, for books, supplies, and equipment handling charges, refund
policy, and other provisions as are required to determine
[[Page 2786]]
proper payment. The statement of charges may be in the form of a
statement on VA Form 28-1905, Authorization and Certification of
Entrance or Reentrance Into Rehabilitation and Certification Status,
that charges will be in accordance with catalog or other published
document (identify publication). The statement of charges may not
exceed those charges nonveterans pay or that are published in the
school catalog or other published document.
871.201-3 Medical services.
The medical services provided trainees under vocational
rehabilitation and education contracts, agreements, or arrangements are
separate and distinct from any other medical service under the
jurisdiction of the Veterans Health Administration to which the veteran
may be entitled. No certificate of eligibility is required from the
Veterans Health Administration before the veteran may be provided such
services.
871.201-4 Letter contracts.
Letter contracts are authorized for use in accordance with the
provision of FAR 16.603 and in those cases in which it is not possible
to complete a formal contract with an approved educational institution
before the enrollment of eligible veterans for training.
871.202 Marking and release of supplies.
The educational institution or training establishment is not
required to mark supplies to indicate ownership by the United States.
Supplies are considered to be the property of the trainee at the time
they are furnished.
871.203 Renewals or supplements to contracts.
Except for contracts for educational and vocational counseling, the
contracting office may renew contracts from year to year by completing
a renewal agreement no later than 30 days before the expiration of the
contract. There must be no change in the schedule of provisions in the
original contract.
(a) Supplements may be negotiated at any time during the contract
period upon the completion of the supplemental agreement.
(b) Contracts for educational and vocational counseling may provide
for automatic extension from year to year.
871.204 Guaranteed payment.
A contracting officer may not award a contract or agreement to any
institution or training establishment that requires VA is to pay a
minimum charge, or to enroll a minimum number of participants per
quarter, semester, term, course, or other period.
871.205 Proration of charges.
A contract must include the exact formula agreed on for the
proration of charges in the event that the veteran's program is
interrupted or discontinued before the end of the term, semester,
quarter, or other period, or the program is completed in less time than
stated in the contract.
871.206 Other fees and charges.
VA may pay fees and other charges that are not prescribed by law
but are required by nongovernmental organizations, such as initiation
fees required to become a member of a labor union and the dues
necessary to maintain membership incidental to training on the job or
to obtaining employment during a period in which the veteran is a
chapter 31 participant, provided there are no facilities feasibly
available where the necessary training can be feasibly accomplished or
employment obtained without paying such charges. Payment for such fees
must be made in accordance with Part 813.
871.207 Payment of tuition or fees.
(a) Contracts, agreements, or arrangements requiring the payment of
tuition or fees must provide either of the following:
(1) Payment for tuition or fees must be made in arrears and must be
prorated in installments over the school year or the length of the
course.
(2) An institution may be paid in accordance with paragraph (b) of
this section, if the institution operates on a regular term, quarter,
or semester basis and normally accepts students only at the beginning
of the term, quarter, or semester and if the institution is one of the
following:
(i) An institution of higher learning that uses a standard unit of
credit recognized by accrediting associations. Such institutions
include those that are members of recognized national or regional
educational accrediting associations, and those that, although not
members of such accrediting associations, grant standard units of
credit acceptable at full value without examination by collegiate
institutions that are members of national or regional accrediting
associations.
(ii) A public tax-supported institution.
(iii) An institution operated and controlled by a State, county, or
local board of education.
(b) An institution that meets the exceptions of paragraph (a)(2) of
this section and that has a refund policy providing for a graduated
scale of charges for purposes of determining refunds may be paid part
or all such tuitions or fees for a term, quarter, or other period of
enrollment immediately following the date on which the refund expires.
(c) Proration of charges does not apply to a fee for noncontinuing
service, such as a registration fee, etc.
(d) The period for which payment of charges may be made is the
period of actual enrollment and is subject to the following:
(1) The effective date is the date of the trainee's entrance into
training status, except that payment may be made for an entire
semester, quarter, or term in institutions operating on that basis if
the trainee enters no later than the final date set by the institution
for enrolling for full credit.
(2) In those cases where the institution has not set a final date
for enrolling for full credit or does not set a date acceptable to VA,
payment may be prorated on the basis of attendance, regardless of the
refund policy.
(3) If an institution customarily charges for the amount of credit
or number of hours of attendance for which a trainee enrolls, payment
may be made on that basis when a trainee enrolls after the final date
permitted for carrying full credit for the semester or term.
871.208 Rehabilitation facilities.
Charges by rehabilitation facilities for the rehabilitation
services provided under 38 U.S.C. Chapter 31 are paid in the same
manner as charges for educational and vocational services through
contract, agreement, or other arrangement.
871.209 Records and reports.
Contracts, agreements, or arrangements must provide for the number
and frequency of reports, adequate financial records to support payment
for each trainee, and maintenance of attendance and progress records.
Such records must be preserved for a period of three years.
871.210 Correspondence courses.
Contracts with institutions for correspondence courses must provide
for the following:
(a) Major changes in courses or course material are not binding on
the VA until a supplemental agreement to the contract is negotiated.
(b) Minor changes in course or course material not affecting the
length of the course or number of lessons and not lowering the
educational value of the course or the quality of the course
[[Page 2787]]
material, such as revision of text, the substitution of a newer lesson
for an older one, or the substitution of equipment of equal or greater
value, are permitted without supplemental agreements. The institution
must place such minor changes and revisions on file with the
contracting officer at the time of the change or revision.
(c) Trainees must be provided with prompt and adequate lessons
service and, unless otherwise specified in the contract, must be
furnished the same texts, lessons service, diplomas, and other services
as are normally provided for regularly enrolled non-veteran students.
(d) All lessons must be adequately serviced on an individual basis.
Grouping of lessons into units or partial servicing does not meet this
requirement.
(e) Each lesson must have a separate examination that is adequate
in terms of lesson content.
(f) The training of persons under a VA contract or the fact that
the United States is using the facilities of the institution for
training veterans must not be used in any way to advertise the
institution. References in the advertising media or correspondence of
the institution shall be limited to a list of courses under 38 U.S.C.
Chapter 31 and must not be directed or pointed specifically to
veterans.
(g) The rates, fees, and charges must not be in excess of those
charged nonveterans.
(h) Payment must be made on a lesson-completed basis in areas for
assignments sent in by trainees and serviced during a pay period as
established by the contract.
(i) Payment must be made only once for each lesson even though it
is necessary to service a lesson more than once.
871.211 Information concerning correspondence courses.
Specific questions on correspondence courses as to the content of
courses, academic credit, and entrance requirements for courses
included in VA contracts may be directed to the institutions offering
the courses.
871.212 Contract clauses.
Contracting officers must use the following clauses, as
appropriate, in solicitations and contracts for vocational
rehabilitation and employment services as they pertain to training and
rehabilitation services and contracts for counseling services:
(a) 852-271-70 Nondiscrimination in services provided to
beneficiaries.
(b) 852.271-72 Time spent by counselee in counseling process.
(c) 852.271-73 Use and publication of counseling results.
(d) 852.271-74 Inspection.
(e) 852.271-75 Extension of contract period.
PART 872--[RESERVED]
PART 873--SIMPLIFIED ACQUISITION PROCEDURES FOR HEALTH-CARE
RESOURCES
Sec.
873.101 Policy.
873.102 Definitions.
873.103 Priority sources.
873.104 Competition requirements.
873.105 Acquisition planning.
873.106 Presolicitation exchanges with industry.
873.107 Socioeconomic programs.
873.108 Publicizing contract actions.
873.109 General requirements for acquisition of health-care
resources.
873.110 Solicitation provisions.
873.111 Acquisition strategies for health-care resources.
873.112 Evaluation information.
873.113 Exchanges with offerors.
873.114 Best value pool.
873.115 Proposal revisions.
873.116 Source selection decision.
873.117 Award to successful offeror.
873.118 Debriefings.
Authority: 38 U.S.C. 501 and 8151-8153; 40 U.S.C. 121(c); and 48
CFR 1.301-1.304.
873.101 Policy.
The simplified acquisition procedures set forth in this Department
of Veterans Affairs Acquisition Regulation (VAAR) part apply to the
acquisition of health-care resources consisting of commercial services
or the use of medical equipment or space. These procedures shall be
used in conjunction with the Federal Acquisition Regulation (FAR) and
other parts of the VAAR. However, when a policy or procedure in the FAR
or another part of the VAAR differs from the procedures contained in
this part, this part shall apply. These procedures contain more
flexibility than provided in the FAR or elsewhere in the VAAR. (38
U.S.C. 8153)
873.102 Definitions.
Commercial service means a service, except construction exceeding
$2,000 and architect-engineer services, that is offered and sold
competitively in the commercial marketplace, is performed under
standard commercial terms and conditions, and is procured using firm-
fixed price contracts. (38 U.S.C. 8153)
Health-care providers include health-care plans and insurers and
any organizations, institutions, or other entities or individuals who
furnish health-care resources. (38 U.S.C. 8153)
Health-care resource includes hospital care and medical services
(as those terms are defined in section 1701 of title 38 United States
Code (U.S.C.)), any other health-care service, and any health-care
support or administrative resource, including the use of medical
equipment or space. (38 U.S.C. 8153)
873.103 Priority sources.
Without regard to FAR 8.002(a)(2), except for the acquisition of
services available from the Committee for Purchase From People Who Are
Blind or Severely Disabled, pursuant to the Javits-Wagner-O'Day Act (41
U.S.C. 46-48c) and FAR Subpart 8.7, there are no priority sources for
the acquisition of health-care resources consisting of commercial
services or the use of medical equipment or space. (38 U.S.C. 8153)
873.104 Competition requirements.
(a) Without regard to FAR Part 6, if the health-care resource
required is a commercial service, the use of medical equipment or
space, or research, and is to be acquired from an institution
affiliated with the Department in accordance with section 7302 of title
38 U.S.C., including medical practice groups and other approved
entities associated with affiliated institutions (entities will be
approved if determined legally to be associated with affiliated
institutions), or from blood banks, organ banks, or research centers,
the resource may be acquired on a sole source basis. (38 U.S.C. 8153)
(b) Acquisition of health-care resources identified in paragraph
(a) of this section are not required to be publicized as otherwise
required by 873.108 or FAR 5.101. In addition, written justification,
as otherwise set forth in section 303(f) of the Federal Property and
Administration Services Act of 1949 (41 U.S.C. 253(f)) and FAR Part 6,
is not required. (38 U.S.C. 8153)
(c) Without regard to FAR 6.101, if the health-care resource
required is a commercial service or the use of medical equipment or
space, and is to be acquired from an entity not described in paragraph
(a) of this section, contracting officers must seek competition to the
maximum extent practicable and must permit all responsible sources, as
appropriate under the provisions of this part, to submit a bid,
proposal or quotation (as appropriate) for the resources to be procured
and provide for the consideration by the Department of bids, proposals,
or quotations so submitted. (38 U.S.C. 8153)
(d) Without regard to FAR 5.101, acquisition of health-care
resources identified in paragraph (c) of this section shall be
publicized as otherwise
[[Page 2788]]
required by 873.108. Moreover, for any such acquisition described in
paragraph (c) of this section to be conducted on a sole source basis,
the contracting officer must prepare a justification that includes the
information and is approved at the levels prescribed in section 303(f)
of the Federal Property and Administration Services Act of 1949 (41
U.S.C. 253(f)) and FAR Part 6. (38 U.S.C. 8153)
873.105 Acquisition planning.
(a) Acquisition planning is an indispensable component of the total
acquisition process.
(b) For the acquisition of health-care resources consisting of
commercial services or the use of medical equipment or space, where the
acquisition is expected to exceed the simplified acquisition threshold
(SAT), an acquisition team must be assembled. The team shall be
tailored by the contracting officer for each particular acquisition
expected to exceed the SAT. The team should consist of a mix of staff,
appropriate to the complexity of the acquisition, and may include
contracting, fiscal, legal, administrative, and technical personnel,
and such other expertise as necessary to assure a comprehensive
acquisition plan. The team should include the small business advocate
representing the contracting activity or a higher level designee and
the SBA Procurement Center Representative (PRC), if available. As a
minimum, the team must include the contracting officer and a
representative of the requesting service. (38 U.S.C. 8153)
(c) Prior to determining whether a requirement is suitable for
acquisition using these simplified acquisition procedures, the
contracting officer or the acquisition team, as appropriate, must
conduct market research to identify interested businesses. It is the
responsibility of the contracting officer to ensure the requirement is
appropriately publicized and information about the procurement
opportunity is adequately disseminated as set forth in 873.108. (38
U.S.C. 8153)
(d) In lieu of the requirements of FAR Part 7 addressing
documentation of the acquisition plan, the contracting officer may
conduct an acquisition strategy meeting with cognizant offices to seek
approval for the proposed acquisition approach. If a meeting is
conducted, briefing materials shall be presented to address the
acquisition plan topics and structure in FAR 7.105. Formal written
minutes--summarizing decisions, actions, and conclusions--shall be
prepared and included in the contract file, along with a copy of the
briefing materials. (38 U.S.C. 8153)
873.106 Presolicitation exchanges with industry.
(a) This section shall be used in lieu of FAR Part 10, except as
provided in paragraph (b)(3) of this section. In conducting market
research, exchange of information by all interested parties involved in
an acquisition, from the earliest identification of a requirement
through release of the solicitation, is encouraged. Interested parties
include potential offerors, end users, Government acquisition and
support personnel, and others involved in the conduct or outcome of the
acquisition. The nature and extent of presolicitation exchanges between
the Government and industry shall be a matter of the contracting
officer's discretion (for acquisitions not exceeding the simplified
acquisition threshold) or the acquisition team's discretion, as
coordinated by the contracting officer. (38 U.S.C. 8153)
(b) Techniques to promote early exchange of information include--
(1) Industry or small business conferences;
(2) Public hearings;
(3) Market research in accordance with FAR 10.002(b), which shall
be followed to the extent that the provisions therein would provide
relevant information;
(4) One-on-one meetings with potential offerors;
(5) Presolicitation notices;
(6) Draft requests for proposals (RFPs);
(7) Requests for information (RFIs);
(8) Presolicitation or preproposal conferences;
(9) Site visits;
(10) Electronic notices (e.g., Internet); and
(11) Use of the Central Contractor Registration (CCR). (http://www.bpn.gov/ccrinq/scripts/search.asp) and the ``Advanced Search''
feature on VetBiz Vendor Information Pages (http://vip.vetbiz.gov/general_user/search/default.asp) to search for vendors. (38 U.S.C.
8153).
873.107 Socioeconomic programs.
(a) Implementation. This section provides additional authority,
over and above that found at FAR 19.502, to waive small business set-
asides. For acquisitions above the micro-purchase threshold, if,
through market research, the contracting officer determines that there
is reasonable expectation that reasonably priced bids, proposals, or
quotations will be received from two or more responsible small
businesses, a requirement for health-care resources must be reserved
for small business participation. Without regard to FAR 13.003(b)(1),
19.502-2, and 19.502-3, the head of the contracting activity (HCA) may
approve a waiver from the requirement for any set-aside for small
business participation when a waiver is determined to be in the best
interest of the Government. (38 U.S.C. 8153)
(b) Rejecting Small Business Administration (SBA) recommendations.
(1) The contracting officer (or, if a waiver has been approved in
accordance with paragraph (a) of this section, the HCA) must consider
and respond to a recommendation from an SBA representative to set a
procurement aside for small business within 5 working days. If the
recommendation is rejected by the contracting officer (or, if a waiver
has been approved, by the HCA) and if SBA intends to appeal that
determination, SBA must, within 2 working days after receipt of the
determination, notify the contracting officer involved of SBA's
intention to appeal.
(2) Upon receipt of the notification of SBA's intention to appeal
and pending issuance of a final Department appeal decision to SBA, the
contracting officer involved must suspend action on the acquisition
unless the contracting officer makes a determination in writing that
proceeding to contract award and performance is in the public interest.
The contracting officer must promptly notify SBA of the determination
to proceed with the solicitation and/or contract award and must provide
a copy of the written determination to SBA.
(3) SBA shall be allowed 10 working days after receiving the
rejection notice from the contracting officer (or the HCA, if a waiver
has been approved) for acquisitions not exceeding $5 million, or 15
working days after receiving the rejection notice for acquisitions
exceeding $5 million, to file an appeal. SBA must notify the
contracting officer within this 10 or 15 day period whether an appeal
has, in fact, been taken. If notification is not received by the
contracting officer within the applicable period, it shall be deemed
that an appeal was not taken.
(4) SBA shall submit appeals to the Secretary. Decisions shall be
made by the DSPE, whose decisions shall be final. (38 U.S.C. 8153)
(c) Contracting with the Small Business Administration (the 8(a)
Program). The procedures of FAR 19.8 shall be followed where a
responsible 8(a) contractor has been identified.
(d) Certificates of Competency and determinations of
responsibility. The Director, Office of Small and
[[Page 2789]]
Disadvantaged Business Utilization (OSDBU), Department of Veterans
Affairs (VA), and the Assistant Administrator, Office of Industrial
Assistance, Small Business Administration (SBA), shall serve as
ombudsmen to assist VA contracting officers on any issues relating to
Certificates of Competency (COC). Copies of all COC referrals to SBA
shall be submitted to the Director, OSDBU (00SB).
873.108 Publicizing contract actions.
(a) Without regard to FAR 5.101, all acquisitions under this part
873, except as provided in paragraph (b) of this section, for dollar
amounts in excess of the simplified acquisition threshold (SAT), as set
forth in FAR Part 13, shall be publicly announced utilizing a medium
designed to obtain competition to the maximum extent practicable and to
permit all responsible sources, as appropriate under the provisions of
this part, to submit a bid, proposal, or quotation (as appropriate).
(1) The publication medium may include the Internet, including the
Governmentwide point of entry (GPE), and local, regional or national
publications or journals, as appropriate, at the discretion of the
contracting officer, depending on the complexity of the acquisition.
(2) Without regard to FAR 5.203, notice shall be published for a
reasonable time prior to issuance of a request for quotations (RFQ) or
a solicitation, depending on the complexity or urgency of the
acquisition, in order to afford potential offerors a reasonable
opportunity to respond. If the notice includes a complete copy of the
RFQ or solicitation, a prior notice is not required, and the RFQ or
solicitation shall be considered to be announced and issued at the same
time.
(3) The notice may include contractor qualification parameters,
such as time for delivery of service, credentialing or medical
certification requirements, small business or other socio-economic
preferences, the appropriate small business size standard, and such
other qualifications as the contracting officer deems necessary to meet
the needs of the Government. (38 U.S.C. 8153)
(b) The requirement for public announcement does not apply to sole
source acquisitions, described in 873.104(a), from institutions
affiliated with the Department in accordance with section 7302 of title
38 U.S.C., including medical practice groups and other approved
entities associated with affiliated institutions (entities will be
approved if determined legally to be associated with affiliated
institutions), or from blood banks, organ banks, or research centers.
In addition, the requirement for public announcement does not apply to
sole source acquisitions of hospital care and medical services (as
those terms are defined in section 1701 of title 38 U.S.C.) or any
other health-care services, including acquisitions for the mutual use
or exchange of use of such services. However, as required by 38 U.S.C.
8153(a)(3)(D), acquisitions from non-affiliates, if conducted on a sole
source basis, must still be justified and approved (see 873.104(d)).
(38 U.S.C. 8153)
(c) For acquisitions below the SAT, a public announcement is
optional. (38 U.S.C. 8153)
(d) Each solicitation issued under these procedures must
prominently identify that the requirement is being solicited under the
authority of 38 U.S.C. 8153 and part 873. (38 U.S.C. 8153)
873.109 General requirements for acquisition of health-care resources.
(a) Source selection authority. Contracting officers shall be the
source selection authority for acquisitions of health-care resources,
consisting of commercial services or the use of medical equipment or
space, utilizing the guidance contained in this part 873. (38 U.S.C.
8153)
(b) Statement of work/Specifications. Statements of work or
specifications must define the requirement and should, in most
instances, include qualifications or limitations such as time limits
for delivery of service, medical certification or credentialing
restrictions, and small business or other socio-economic preferences.
The contracting officer may include any other such terms as the
contracting officer deems appropriate for each specific acquisition.
(38 U.S.C. 8153)
(c) Documentation. Without regard to FAR 13.106-3(b), 13.501(b), or
15.406-3, the contract file must include:
(1) A brief written description of the procedures used in awarding
the contract;
(2) The market research, including the determination that the
acquisition involves health-care resources;
(3) The number of offers received; and
(4) An explanation, tailored to the size and complexity of the
acquisition, of the basis for the contract award decision. (38 U.S.C.
8153)
(d) Time for receipt of quotations or offers. (1) Without regard to
FAR 5.203, contracting officers shall set a reasonable time for receipt
of quotations or proposals in requests for quotations (RFQs) and
solicitations.
(2) Without regard to FAR 15.208 or 52.212-1(f), quotations or
proposals received after the time set forth in an RFQ or request for
proposals (RFP) may be considered at the discretion of the contracting
officer if determined to be in the best interest of the Government.
Contracting officers must document the rationale for accepting
quotations or proposals received after the time specified in the RFQ or
RFP. This paragraph (d)(2) shall not apply to RFQs or RFPs if
alternative evaluation techniques described in 873.111(e)(1)(ii) are
used. This paragraph (d)(2) does not apply to invitations for bid
(IFBs). (38 U.S.C. 8153)
(e) Cancellation of procurements. Without regard to FAR 14.404-1,
any acquisition may be canceled by the contracting officer at any time
during the acquisition process if cancellation is determined to be in
the best interest of the Government. (38 U.S.C. 8153)
873.110 Solicitation provisions.
(a) As provided in 873.109(d), contracting officers shall insert
the provision at 852.273-70, Late offers, in all requests for
quotations (RFQs) and requests for proposals (RFPs) exceeding the
micro-purchase threshold. (38 U.S.C. 8153)
(b) The contracting officer shall insert a provision in RFQs and
solicitations, substantially the same as the provision at 852.273-71,
Alternative negotiation techniques, when either of the alternative
negotiation techniques described in 873.111(e)(1) will be used. (38
U.S.C. 8153)
(c) The contracting officer shall insert the provision at 852.273-
72, Alternative evaluation, in lieu of the provision at 52.212-2,
Evaluation--Commercial Items, when the alternative negotiation
technique described in 873.111(e)(1)(ii) will be used. (38 U.S.C. 8153)
(d) When evaluation information, as described in 873.112, is to be
used to select a contractor under an RFQ or RFP for health-care
resources consisting of commercial services or the use of medical
equipment or space, the contracting officer may insert the provision at
852.273-73, Evaluation--health-care resources, in the RFQ or RFP in
lieu of FAR provision 52.212-2. (38 U.S.C. 8153)
(e) As provided at 873.113(f), if award may be made without
exchange with vendors, the contracting officer shall include the
provision at 852.273-74, Award without exchanges, in the RFQ or RFP.
(38 U.S.C. 8153)
(f) The contracting officer shall insert the FAR clause at 52.207-
3, Right of
[[Page 2790]]
First Refusal of Employment, and the clause at 852.207-70, Report of
employment under commercial activities, in all RFQs, solicitations, and
contracts issued under the authority of 38 U.S.C. 8151-8153 which may
result in a conversion, from in-house performance to contract
performance, of work currently being performed by Department of
Veterans Affairs employees. (38 U.S.C. 8153)
873.111 Acquisition strategies for health-care resources.
Without regard to FAR 13.003 or 13.500(a), the following
acquisition processes and techniques may be used, singly or in
combination with others, as appropriate, to design acquisition
strategies suitable for the complexity of the requirement and the
amount of resources available to conduct the acquisition. These
strategies should be considered during acquisition planning. The
contracting officer shall select the process most appropriate to the
particular acquisition. There is no preference for sealed bid
acquisitions. (38 U.S.C. 8153)
(a) Request for quotations. (1) Without regard to FAR 6.1 or 6.2,
contracting officers must solicit a sufficient number of sources to
promote competition to the maximum extent practicable and to ensure
that the purchase is advantageous to the Government, based, as
appropriate, on either price alone or price and other factors (e.g.,
past performance and quality). RFQs must notify vendors of the basis
upon which the award is to be made.
(2) For acquisitions in excess of the SAT, the procedures set forth
in FAR Part 13 concerning RFQs may be utilized without regard to the
dollar thresholds contained therein. (38 U.S.C. 8153)
(b) Sealed bidding. FAR Part 14 provides procedures for sealed
bidding.
(c) Negotiated acquisitions. If the procedures of FAR Parts 12, 13,
and 15 differ from the procedures of this Part, the procedures of this
Part shall take precedence. (38 U.S.C. 8153)
(d) Multiphase acquisition technique. (1) General. Without regard
to FAR 15.202, multiphase acquisitions may be appropriate when the
submission of full proposals at the beginning of an acquisition would
be burdensome for offerors to prepare and for Government personnel to
evaluate. Using multiphase techniques, the Government may seek limited
information initially, make one or more down-selects, and request a
full proposal from an individual offeror or limited number of offerors.
Provided that the notice notifies offerors, the contracting officer may
limit the number of proposals during any phase to the number that will
permit an efficient competition among proposals offering the greatest
likelihood of award. The contracting officer may indicate in the notice
an estimate of the greatest number of proposals that will be included
in the down-select phase. The contracting officer may down-select to a
single offeror.
(2) First phase notice. In the first phase, the Government shall
publish a notice (see 873.108) that solicits responses and that may
provide, as appropriate, a general description of the scope or purpose
of the acquisition and the criteria that will be used to make the
initial down-select decision. The notice may also inform offerors of
the evaluation criteria or process that will be used in subsequent
down-select decisions. The notice must contain sufficient information
to allow potential offerors to make an informed decision about whether
to participate in the acquisition. The notice must advise offerors that
failure to participate in the first phase will make them ineligible to
participate in subsequent phases. The notice may be in the form of a
synopsis in the Governmentwide point of entry (GPE) or a narrative
letter or other appropriate method that contains the information
required by this paragraph.
(3) First phase responses. Offerors shall submit the information
requested in the notice described in paragraph (d)(2) of this section.
Information sought in the first phase may be limited to a statement of
qualifications and other appropriate information (e.g., proposed
technical concept, past performance information, limited pricing
information).
(4) First phase evaluation and down-select. The Government shall
evaluate all offerors' submissions in accordance with the notice and
make a down-select decision.
(5) Subsequent phases. Additional information shall be sought in
the second phase so that a down-select can be performed or an award
made without exchanges, if necessary. The contracting officer may
conduct exchanges with remaining offeror(s), request proposal
revisions, or request best and final offers, as determined necessary by
the contracting officer, in order to make an award decision.
(6) Debriefing. Without regard to FAR 15.505, contracting officers
must debrief offerors as required by 873.118 when they have been
excluded from the competition. (38 U.S.C. 8153)
(e) Alternative negotiation techniques. (1) Contracting officers
may utilize alternative negotiation techniques for the acquisition of
health-care resources. Alternative negotiation techniques may be used
when award will be based on either price or price and other factors.
Alternative negotiation techniques include but are not limited to:
(i) Indicating to offerors a price, contract term or condition,
commercially available feature, and/or requirement (beyond any
requirement or target specified in the solicitation) that offerors will
have to improve upon or meet, as appropriate, in order to remain
competitive.
(ii) Posting offered prices electronically or otherwise (without
disclosing the identity of the offerors) and permitting revisions of
offers based on this information.
(2) Except as otherwise permitted by law, contracting officers
shall not conduct acquisitions under this section in a manner that
reveals the identities of offerors, releases proprietary information,
or otherwise gives any offeror a competitive advantage (see FAR 3.104).
(38 U.S.C. 8153)
873.112 Evaluation information.
(a) Without regard to FAR 15.304 (except for 15.304(c)(1) and
(c)(3), which do apply to acquisitions under this authority), the
criteria, factors, or other evaluation information that apply to an
acquisition, and their relative importance, are within the broad
discretion of agency acquisition officials as long as the evaluation
information is determined to be in the best interest of the Government.
(38 U.S.C. 8153)
(b) Price or cost to the Government must be evaluated in every
source selection. Past performance shall be evaluated in source
selections for negotiated competitive acquisitions exceeding the SAT
unless the contracting officer documents that past performance is not
an appropriate evaluation factor for the acquisition. (38 U.S.C. 8153)
(c) The quality of the product or service may be addressed in
source selection through consideration of information such as past
compliance with solicitation requirements, technical excellence,
management capability, personnel qualifications, and prior experience.
The information required from quoters, bidders, or offerors shall be
included in notices or solicitations, as appropriate. (38 U.S.C. 8153)
(d) The relative importance of any evaluation information included
in a solicitation must be set forth therein. (38 U.S.C. 8153)
873.113 Exchanges with offerors.
(a) Without regard to FAR 15.201 or 15.306, negotiated acquisitions
generally involve exchanges between
[[Page 2791]]
the Government and competing offerors. Open exchanges support the goal
of efficiency in Government by providing the Government with relevant
information (in addition to that submitted in the offeror's initial
proposal) needed to understand and evaluate the offeror's proposal. The
nature and extent of exchanges between the Government and offerors is a
matter of contracting officer judgment. Clarifications, communications,
and discussions, as provided for in the FAR, are concepts not
applicable to acquisitions under this part 873. (38 U.S.C. 8153)
(b) Exchanges with potential offerors may take place throughout the
source selection process. Exchanges may start in the planning stages
and continue through contract award. Exchanges should occur most often
with offerors determined to be in the best value pool (see 873.114).
The purpose of exchanges is to ensure there is mutual understanding
between the Government and the offerors on all aspects of the
acquisition, including offerors' submittals/proposals. Information
disclosed as a result of oral or written exchanges with an offeror may
be considered in the evaluation of an offeror's proposal. (38 U.S.C.
8153)
(c) Exchanges may be conducted, in part, to obtain information that
explains or resolves ambiguities or other concerns (e.g., perceived
errors, perceived omissions, or perceived deficiencies) in an offeror's
proposal. (38 U.S.C. 8153)
(d) Exchanges shall only be initiated if authorized by the
contracting officer and need not be conducted with all offerors. (38
U.S.C. 8153)
(e) Except for acquisitions based on alternative negotiation
techniques contained in 873.111(e)(1), the contracting officer and
other Government personnel involved in the acquisition shall not
disclose information regarding one offeror's proposal to other offerors
without consent of the offeror in accordance with FAR Parts 3 and 24.
(38 U.S.C. 8153)
(f) Award may be made on initial proposals without exchanges if the
solicitation states that the Government intends to evaluate proposals
and make award without exchanges, unless the contracting officer
determines that exchanges are considered necessary. (38 U.S.C. 8153)
873.114 Best value pool.
(a) Without regard to FAR 15.306(c), the contracting officer may
determine the most highly rated proposals having the greatest
likelihood of award based on the information or factors and subfactors
in the solicitation. These vendors constitute the best value pool. This
determination is within the sole discretion of the contracting officer.
Competitive range determinations, as provided for in the FAR, are not
applicable to acquisitions under this part 873. (38 U.S.C. 8153)
(b) In planning an acquisition, the contracting officer may
determine that the number of proposals that would otherwise be included
in the best value pool is expected to exceed the number at which an
efficient, timely, and economical competition can be conducted. In
reaching such a conclusion, the contracting officer may consider such
factors as the results of market research, historical data from
previous acquisitions for similar services, and the resources available
to conduct the source selection. Provided the solicitation notifies
offerors that the best value pool can be limited for purposes of making
an efficient, timely, and economical award, the contracting officer may
limit the number of proposals in the best value pool to the greatest
number that will permit an efficient competition among the proposals
offering the greatest likelihood of award. The contracting officer may
indicate in the solicitation the estimate of the greatest number of
proposals that will be included in the best value pool. The contracting
officer may limit the best value pool to a single offeror. (38 U.S.C.
8153)
(c) If the contracting officer determines that an offeror's
proposal is no longer in the best value pool, the proposal shall no
longer be considered for award. Written notice of this decision must be
provided to unsuccessful offerors at the earliest practicable time. (38
U.S.C. 8153)
873.115 Proposal revisions.
(a) Without regard to FAR 15.307, the contracting officer may
request proposal revisions as often as needed during the proposal
evaluation process at any time prior to award from vendors remaining in
the best value pool. Proposal revisions shall be submitted in writing.
The contracting officer may establish a common cutoff date for receipt
of proposal revisions. Contracting officers may request best and final
offers. In any case, contracting officers and acquisition team members
must safeguard proposals, and revisions thereto, to avoid unfair
dissemination of an offeror's proposal. (38 U.S.C. 8153)
(b) If an offeror initially included in the best value pool is no
longer considered to be among those most likely to receive award after
submission of proposal revisions and subsequent evaluation thereof, the
offeror may be eliminated from the best value pool without being
afforded an opportunity to submit further proposal revisions. (38
U.S.C. 8153)
(c) Requesting and/or receiving proposal revisions does not
necessarily conclude exchanges. However, requests for proposal
revisions should advise offerors that the Government may make award
without obtaining further revisions. (38 U.S.C. 8153)
873.116 Source selection decision.
(a) An integrated comparative assessment of proposals should be
performed before source selection is made. The contracting officer
shall independently determine which proposal(s) represents the best
value, consistent with the evaluation information or factors and
subfactors in the solicitation, and that the prices are fair and
reasonable. The contracting officer may determine that all proposals
should be rejected if it is in the best interest of the Government. (38
U.S.C. 8153)
(b) The source selection team, or advisory boards or panels, may
conduct comparative analysis(es) of proposals and make award
recommendations, if the contracting officer requests such assistance.
(38 U.S.C. 8153)
(c) The source selection decision must be documented in accordance
with FAR 15.308.
873.117 Award to successful offeror.
(a) The contracting officer shall award a contract to the
successful offeror by furnishing the contract or other notice of the
award to that offeror. (38 U.S.C. 8153)
(b) If a request for proposal (RFP) process was used for the
solicitation and if award is to be made without exchanges, the
contracting officer may award a contract without obtaining the
offeror's signature a second time. The offeror's signature on the offer
constitutes the offeror's agreement to be bound by the offer. If a
request for quotation (RFQ) process was used for the solicitation, and
if the contracting officer determines there is a need to establish a
binding contract prior to commencement of work, the contracting officer
should obtain the offeror's acceptance signature on the contract to
ensure formation of a binding contract. (38 U.S.C. 8153)
(c) If the award document includes information that is different
than the latest signed offer, both the offeror and the contracting
officer must sign the contract award. (38 U.S.C. 8153)
[[Page 2792]]
(d) When an award is made to an offeror for less than all of the
items that may be awarded and additional items are being withheld for
subsequent award, each notice shall state that the Government may make
subsequent awards on those additional items within the offer acceptance
period. (38 U.S.C. 8153)
873.118 Debriefings.
Offerors excluded from a request for proposals (RFP) may submit a
written request for a debriefing to the contracting officer. Without
regard to FAR 15.505, preaward debriefings may be conducted by the
contracting officer when determined to be in the best interest of the
Government. Post-award debriefings shall be conducted in accordance
with FAR 15.506. (38 U.S.C. 8153)
[FR Doc. E7-25380 Filed 1-14-08; 8:45 am]
BILLING CODE 8320-01-P