VA Acquisition Regulation: Plain Language Rewrite, 2712-2792 [E7-25380]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 73, Number 10 (Tuesday, January 15, 2008)]
[Rules and Regulations]
[Pages 2712-2792]
From the Federal Register Online via the Government Printing 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 arita.tillman@va.gov.

SUPPLEMENTARY INFORMATION: On January 13, 2006, we published in the 
Federal Register (71 FR 2341-2424) a proposed rule to amend the 
Department of Veterans Affairs Acquisition Regulation (VAAR) to update 
the VAAR and to revise the VAAR to conform to plain language 
principles. Comments were solicited concerning the proposal for 60 
days, ending March 14, 2006. Eight respondents submitted comments on 
the proposed rule; most respondents submitted multiple comments. A 
discussion of the comments is provided below.
    One commenter stated that the internal procedure, guidance, format, 
and work-flow items that do not impact VA's vendor base should be 
removed from the VAAR and relocated to internal documents.
    We appreciate this comment and concur that material in the VAAR 
that does not impact the public may be removed from 48 Code of Federal 
Regulations (CFR) Chapter 8, and this final rule does remove some such 
material formerly contained in the VAAR. VA plans to remove additional 
material at a future date, but until the internal documents containing 
that guidance are published and in place within VA, that material 
cannot be removed from the VAAR. Future changes to the VAAR will be 
processed as the internal documents are put into place.
    One commenter stated that the VAAR language should be updated to 
keep pace with the direction of Federal procurement and current 
thinking regarding performance-based acquisition, preference for 
acquisition of commercial items or services, electronic submissions, 
interagency contracting, etc.
    We believe updating is an ongoing process; we will continue to seek 
to ensure the VAAR is current and up to date.
    One commenter stated that based on recent Federal policy changes, 
such as the use of the Electronic Subcontracting Reporting System 
(eSRS), Wage Determinations OnLine (WDOL), and the new security 
guidance as found in Homeland Security Presidential Directive (HSPD)-12 
or Federal Information Processing Standards (FIPS) 201, any procedures 
in the VAAR that impact VA's vendor base should be updated.
    We note that the VAAR supplements the FAR when we consider 
supplementation necessary. Otherwise, we rely on the FAR for such 
guidance. We are not aware of any procedures in the VAAR regarding 
these issues that require updating. We therefore make no change based 
on this comment.
    One commenter stated that many clause prescriptions contain either 
the word ``must'' or ``shall.'' To remain consistent with the FAR and 
other regulatory documents found across the Federal government, and 
``to simplify the use of any non-subjective language,'' the commenter 
recommended picking one of the two and using it throughout the 
document.
    We appreciate this comment and based on it, we have changed the 
term used in all provision and clause prescriptions from ``must 
insert'' to ``shall insert'' to be consistent with the FAR. The FAR 
Drafting Guide otherwise provides that ``must'' and ``shall'' have the 
same meaning.
    Several comments were received suggesting additions and changes to 
sections in Part 801 that are internal to VA and that do not impact the 
public.
    We believe the referenced sections are internal guidance to 
contracting officers and we do not intend to add more internal guidance 
to the VAAR than is necessary (see Comment 1 above). However, the 
comments have been considered and this final rule makes changes from 
the proposed rule where appropriate in that internal guidance.
    Two comments were received regarding the proposed provisions in 
809.504(d) to expand the application of the clause at 852.209-70 to 
cover additional types of services. One commenter stated that the 
requirement to include the clause at 852.209-70 in all solicitations 
for services that are addressed in FAR 9.502 is unnecessary and 
essentially removes any flexibility on the part of contracting officers 
to make determinations regarding the applicability of organizational 
conflicts of interest based on the circumstances of a specific 
procurement. The commenter indicated that FAR 9.505 contains general 
rules that should be followed in this matter and that VA should empower 
contracting officers to make the determinations instead of relying on a 
blanket approach to incorporating this clause. The other commenter does 
not

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believe it is necessary or appropriate to require all offerors for 
services listed in FAR 9.502 to submit a statement disclosing all facts 
relevant to an existing or potential conflict of interest. VA is 
applying the clause to every type of service listed in FAR 9.502 rather 
than determining what particular solicitations and contracts require 
the clause. By focusing only on those types of services listed in FAR 
9.502, VA may be missing other non-services solicitations that could 
raise organizational conflict of interest issues. The commenter 
recommended that VA develop criterion as to when the contracting 
officer should evaluate the organizational conflict of interest issues 
in a solicitation and the resulting contract, particularly when some 
exclusion from future work could result from the instant award.
    As an initial matter, we note that currently, 48 CFR Chapter 8 
requires contracting officers to include the clause at 852.209-70 in 
all solicitations and contracts for consulting services. In the 
proposed rule, we proposed to add solicitations and contracts for 
management support services, other professional services, technical 
evaluation services, and systems engineering services, as provided in 
FAR 9.502, to the types of solicitations and contracts where the clause 
would be required. The FAR identifies these services as those more 
likely to involve organizational conflicts of interest. The clause does 
not require any submission of data or any action on the part of any 
offeror if the offeror, to the best of the offeror's knowledge and 
belief, has no organizational conflicts of interest. This is not a 
determination that the contracting officer can make in advance, as the 
contracting officer does not know the particular circumstances of each 
and every potential offeror in advance of issuing the solicitation. 
Determinations of whether potential organizational conflicts of 
interest exist are not dependent upon the type of service being 
procured but rather are dependent upon the specific circumstances of 
each offeror, circumstances which only the offeror might know. Since 
FAR 9.502 indicates that organizational conflicts of interest are more 
likely to occur in contracts for these types of services, we believe it 
is prudent to extend the use of the clause to at least include 
solicitations for these types of services. The clause only requires an 
offeror to provide supplemental information to the contracting officer 
if the offeror knows or believes that award of the contract to the 
offeror would involve an organizational conflict of interest. If the 
offeror does not know or does not believe that award of a contract 
would involve an organizational conflict of interest, no action is 
required on the part of the offeror. The contracting officer is not in 
a position to make a blanket determination for and on behalf of every 
potential offeror under a specific solicitation. It is the offeror 
rather than the contracting officer that is in a position to know 
whether it has a potential organizational conflict of interest. This 
clause is not a substitute for FAR Subpart 9.5 and does not relieve the 
contracting officer from compliance with the requirements of 9.5. 
Rather, it supplements 9.5 by placing some responsibility on offerors 
to notify contracting officers of the existence of potential 
organizational conflicts of interest of which the contracting officer 
would not otherwise be aware. We believe the use of this clause is 
appropriate for the types of services specified in FAR 9.502 and as set 
forth in the proposed rule. Therefore, no change is being made in the 
final rule regarding the use of this clause.
    One commenter stated that VA policies in Part 811 should be updated 
in terms of best value contracting, performance-based acquisition, and 
preference for commercial items. The part should address requirements 
for commodities that need specifications and those that do not and 
should include detailed policy on commercial item preference and use of 
statements of objectives or performance work statements in those 
situations where a specification is not required.
    VA relies on the FAR for such guidance. We do not believe that 
additional guidance and coverage is required in Part 811 of the VAAR. 
Adding additional material to the VAAR that might impact the public is 
beyond the scope of this rulemaking.
    One commenter stated that the focus of the VAAR should be revised 
from ``purchasing compliance'' to ``purchasing performance.'' For 
example, adding clauses to Part 812 does not streamline or simplify the 
purchasing process, and the language which allows contracting officers 
to tailor solicitations defeats the preference for utilizing commercial 
practices.
    We do not believe the clauses being added for use in commercial 
item acquisitions, when appropriate, are inconsistent with commercial 
practices or that they necessarily relate to contract compliance versus 
performance. The tailoring provisions simply establish agency 
procedures to implement the tailoring provisions authorized by the FAR 
at 12.302(c).
    One commenter expressed concern that the lead-in language in 
section 812.301(a), that VA contracting officers ``must use only those 
provisions and clauses in this part when acquiring commercial items,'' 
may be misread to mean that the clauses in Part 812 are mandatory. The 
commenter recommended revising the language to provide that only those 
clauses listed in FAR 12.3 are mandatory and to affirmatively state 
that clauses in 812.301 are optional.
    We partially concur with the commenter's recommendation. We have 
made changes in the final rule from the proposed rule's language in 
812.301(a) to clarify that the clauses referred to in Part 812 are to 
be used as appropriate, in accordance with the provision or clause 
prescriptions. We do not think that it is appropriate to refer in 
812.301(a) to FAR 12.3, and believe that such a reference would be 
redundant.
    One commenter expressed concern that by adding clause 852.209-70 to 
the list of clauses that may be used, as appropriate, in commercial 
item solicitations, contracting officers may routinely include that 
clause in all commercial item solicitations.
    We partially concur and have made changes in the final rule from 
the proposed rule's language in 812.301(b) and (c) to clarify that the 
provisions and clauses listed therein are to be used in accordance with 
the prescriptions for those provisions and clauses. The prescription 
for use of clause 852.209-70 provides for use of the clause only in 
certain types of service contracts.
    One commenter requests an update to section 814.201 regarding 
contract numbering to conform to how VA's Electronic Contract 
Management System (eCMS) is going to be used to automatically assign 
numbers to applicable contractual vehicles.
    VA appreciates this comment and we intend to update this section 
upon implementation of eCMS and this final rule makes changes to the 
proposed rule by adding a statement regarding eCMS to this section.
    One commenter stated that proposed VAAR Subparts 817.1 and 817.2 
should be clarified regarding their application to standard multi-year 
pricing provisions and option clauses included in Federal Supply 
Schedule contracts; clarification should be added regarding multi-year 
contracts versus multiple options for renewal; and guidance should be 
added relative to contracts subject to the Veterans Health Care Act, 38 
United States Code (U.S.C.) 8126.
    We do not believe that this comment relates directly to the 
proposed rule change to the VAAR, as published in the

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Federal Register, and, to the extent that it recommends adding material 
to the VAAR, it is beyond the scope of this rulemaking. Such additions 
would require a new proposed rule and opportunity for public comment. 
Rather, we believe that this comment is directed towards VA's 
administration of Federal Supply Schedule contracts and their 
intersection with the Veterans Health Care Act, 38 U.S.C. 8126. The 
proposed rule change to the VAAR does not affect and is not intended to 
affect the Veterans Health Care Act. Section 817.105-1 relates to VA's 
authority to enter into multi-year contracts for up to 5 years, as 
provided in 38 U.S.C. 114, unless otherwise authorized by statute, and 
subpart 817.2 relates to the use of options in solicitations under 
Office of Management and Budget Circular No. A-76. We do not believe it 
is necessary to further clarify the sections in subparts 817.1 and 
817.2. These suggested changes will be considered for possible 
generation of a new proposed rule change to the VAAR at a future date.
    One commenter stated that a clause used in VA Federal Supply 
Schedule solicitations and contracts regarding an option to extend the 
term of the contract and relating to the Veterans Health Care Act, 38 
U.S.C. 8126, should be added to the VAAR.
    We do not believe that the comment relates directly to the proposed 
changes to the VAAR contained in the proposed rule, as published in the 
Federal Register. Rather, it is beyond the scope of this rulemaking. 
The suggested change to the VAAR would require a new proposed rule and 
opportunity for public comment. The suggested change will be considered 
for possible generation of a new proposed rule change to the VAAR at a 
future date.
    One commenter requested that the VAAR clarify the definition of 
``other publications'' in proposed section 832.404 to include 
electronic media, and stated that subscriptions for publications or 
products that are available via electronic media are now commonplace in 
the commercial market.
    We appreciate the request for clarification. However, rather than 
defining ``other publications,'' which could result in an extensive 
list, the proposed rule revised this section to restate statute, which 
we believe does cover electronic media. We have made no change based on 
this comment.
    One commenter stated that Section 847 of the National Defense 
Authorization Act for Fiscal Year 2006 terminates all agency boards of 
contract appeals, except for the General Services Administration, the 
Tennessee Valley Authority, and the United States Postal Service, 
within a year of the date of enactment of the Act. The commenter 
requested that VA confirm the process for appeals to the VA Board of 
Contract Appeals prior to that date and the process that will be 
followed after that date, if possible.
    We appreciate this comment and as mandated by Congress, on January 
6, 2007, the VA Board of Contract Appeals was terminated and its 
contract adjudication functions were transferred to the Civilian Board 
of Contract Appeals. The final rule makes changes to the proposed rule 
by revising accordingly.
    One commenter suggested changes to or clarification of General 
Services Administration clause 552.238-75.
    Changes to the clause in 48 CFR 552.238-75 are outside the scope of 
this rulemaking. This clause is not a VAAR clause. Suggested changes to 
this clause should be directed to the General Services Administration. 
To the extent that the commenter is suggesting the addition of 
clarifying language to the VAAR supplementing General Services 
Administration clauses, the suggestion does not directly relate to the 
proposed changes to the VAAR contained in the proposed rule, as 
published in the Federal Register, and is beyond the scope of this 
rulemaking. Such a change to the VAAR would require a new proposed rule 
and opportunity for public comment. The suggested change will be 
considered for possible generation of a new proposed rule change to the 
VAAR at a future date.
    One commenter suggested that changes be made to the modified 
version of General Services Administration clause 552.215-72 used in VA 
Federal Supply Schedule solicitations and contracts.
    We believe this is outside the scope of this rulemaking. The 
suggestion does not relate to the proposed changes to the VAAR as 
contained in the proposed rule published in the Federal Register and is 
beyond the scope of this rulemaking. The suggested change will be 
considered for possible generation of a new proposed rule change to the 
VAAR at a future date.
    One commenter suggested that various provisions used by VA in its 
Federal Supply Schedule solicitations and contracts that are not 
currently included in the VAAR be added to the VAAR.
    We do not believe that the suggestion directly relates to the 
proposed changes to the VAAR as contained in the proposed rule 
published in the Federal Register. Rather, it is beyond the scope of 
this rulemaking. The suggestion would involve changes to the VAAR which 
would require a new proposed rule and opportunity for public comment. 
The suggestion will be considered for possible generation of a new 
proposed rule change to the VAAR at a future date. As per Federal 
Acquisition Regulation (FAR) 8.402, the General Services Administration 
has delegated authority to the VA to procure health care related 
products and services under the VA Federal Supply Schedules program. 
This original General Services Administration delegation occurred via 
letter to VA in 1960 and was updated most recently in 2004.
    One commenter requested that VA ensure that sections 801.670-1 and 
847.303-1 clearly be written to conform to FAC 2005-7 and the 
Interstate Commerce Act, and stated that commercial bills of lading are 
now required for domestic shipment.
    VA believes that sections 801.670-1 and 847.303-1 primarily provide 
internal VA guidance and we believe they do comply with FAC 2005-7 and 
the Interstate Commerce Act. The VA Commercial Bill of Lading 
referenced in section 847.303-1 is a commercial bill of lading.
    Three commenters suggested changes to clause 852.211-70, Service 
data manuals, varying from specific suggested changes that would 
replace the requirements for hard copies of the manuals with other 
requirements involving electronic versions, to a suggestion that there 
be a complete rewrite of the clause to reflect electronic documentation 
standards used throughout the medical imaging community.
    We agree that this clause may require revision and updating to 
conform to current commercial practices. However, we consider hard 
copies of such manuals to be necessary. Further, the clause not only 
impacts VA, it also impacts all of the other Federal agencies for which 
VA is the contracting office for medical equipment as well as members 
of the public. We believe that the suggested changes to this clause 
would require a new proposed rule and opportunity for public comment, 
including comment from other Federal agencies that might be impacted by 
such changes. These suggested changes will be considered for possible 
generation of a new proposed rule change to the VAAR at a future date.
    One commenter suggested that clause 852.211-72, Technical industry 
standards, be revised to add ``voluntary consensus'' prior to the word 
``standards'' in the second line of the first paragraph of the clause.

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    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 https://
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, 
regardl