Revise and Streamline VA Acquisition Regulation To Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V005-Parts 812, 813), 1321-1326 [2018-00169]

Download as PDF Federal Register / Vol. 83, No. 8 / Thursday, January 11, 2018 / Proposed Rules I. Introduction On December 27, 2017, the Postal Service filed a request for the Commission to consider revisions to the periodic reporting requirements codified in 39 CFR part 3050.1 The Commission initiates this rulemaking to seek comments and facilitate the Commission’s examination of these periodic reporting requirements. II. Background sradovich on DSK3GMQ082PROD with PROPOSALS The Postal Accountability and Enhancement Act (PAEA) granted the Commission enhanced information gathering and reporting responsibilities. See 39 U.S.C. 3652(e)(1). The PAEA provides that the Commission shall prescribe the content and form of the public reports the Postal Service files with the Commission under section 3652. In Docket No. RM2008–4, the Commission approved its current periodic reporting requirements.2 On December 27, 2017, the Postal Service filed a request for the Commission to consider revisions to the periodic reporting requirements. First, the Postal Service requests that the Commission adjust the deadlines for the quarterly Revenue, Pieces, and Weight (RPW) report; the Quarterly Statistics Report (QSR); the quarterly Billing Determinants report, and the monthly National Consolidated Trial Balance and the Revenue and Expense Summary (Trial Balance) report, to align the deadlines with other financial reporting deadlines. Petition at 1. The Postal Service states that revising the regulations so these deadlines align with other financial reporting deadlines will avoid potential restatements of the earlier filed reports once the data for the later filed reports are finalized. Id. at 3. Specifically, the Postal Service wants to move the deadline for the RPW and QSR reports so that the quarterly and year-end report deadlines are the same as the Form 10–Q and Form 10–K report due dates. Id. at 2–3. In addition, the Postal Service requests that the deadlines for the quarterly Billing Determinants reports be extended to 60 days after the end of Quarters 1, 2, and 3, and 90 days after the year-end for Quarter 4.3 The Postal Service also 1 United States Postal Service Petition for Rulemaking on Periodic Reporting, December 27, 2017 (Petition). 2 Docket No. RM2008–4, Order No. 203, Notice of Final Rule Prescribing Form and Content of Periodic Reports, April 16, 2009. 3 Id. at 4. The Postal Service also requests that the Quarter 4 Billing Determinants report be incorporated into the annual Billing Determinants report rather than submitted as a standalone filing. Id. The Postal Service states that eliminating the standalone filing would help the Postal Service VerDate Sep<11>2014 17:00 Jan 10, 2018 Jkt 244001 requests that the Commission revise the periodic reporting rules so that the Trial Balance reports and the Monthly Summary Financial reports have the same deadline. Id. at 5–6. Second, the Postal Service requests that the Commission modify the format of the Monthly Summary Financial Report to make the report more consistent with the Postal Service’s quarterly and annual financial reports. Id. at 1. The Postal Service states that the term ‘‘Operating Revenue’’ as it is used in Tables 1 and 2 of the Monthly Summary Financial Report does not correspond with its usage in its Form 10–K statements. Id. at 7. The Postal Service requests revisions to Tables 1 and 2 of the Monthly Summary Financial Report so that the items and amounts reported for total operating revenue reconcile on both tables and the breakdown for revenue more closely aligns with the format in its other financial reports.4 Third, the Postal Service requests that the Commission consider eliminating or modifying any reporting requirements that have become unnecessary or irrelevant since the current periodic reporting rules were first implemented in 2009. Petition at 1. The Postal Service requests that the Commission consider eliminating or modifying these requirements to avoid imposing ‘‘unnecessary or unwarranted administrative effort and expense’’ on the Postal Service. Id. (citing 39 U.S.C. 3652(e)(1)). III. Invitation To Comment Interested persons are invited to provide written comments to facilitate the Commission’s examination of the periodic reporting requirements. In addition to the specific revisions requested in the Postal Service’s petition, the Commission also invites comments on whether specific periodic reporting requirements should be eliminated or modified or whether updates or enhancements to the requirements should be made. Comments are due no later than March 7, 2018. Reply comments are due no later than April 6, 2018. All comments and suggestions received will be available for review on the Commission’s website, https:// www.prc.gov. Pursuant to 39 U.S.C. 505, Lauren A. D’Agostino is appointed to serve as an officer of the Commission (Public Representative) to represent the more effectively allocate scarce time and resources. Id. 4 Id. The Postal Service also requests updating Table 2 to reflect the name change of Standard Mail to USPS Marketing Mail. Id. Attachment 1 at 2. PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 1321 interests of the general public in the above-captioned docket. IV. Ordering Paragraphs It is ordered: 1. The Commission establishes Docket No. RM2018–2 to consider revisions to the periodic reporting requirements. 2. Comments are due no later than March 7, 2018. Reply comments are due no later than April 6, 2018. 3. Pursuant to 39 U.S.C. 505, the Commission appoints Lauren A. D’Agostino to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket. 4. The Secretary shall arrange for publication of this notice in the Federal Register. By the Commission. Stacy L. Ruble, Secretary. [FR Doc. 2018–00320 Filed 1–10–18; 8:45 am] BILLING CODE 7710–FW–P DEPARTMENT OF VETERANS AFFAIRS 48 CFR Parts 812, 813, and 852 RIN 2900–AP58 Revise and Streamline VA Acquisition Regulation To Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014–V005—Parts 812, 813) Department of Veterans Affairs. Proposed rule. AGENCY: ACTION: The Department of Veterans Affairs (VA) is proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove procedural guidance internal to VA into the VAAM, and to incorporate any new agency specific regulations or policies. These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors. The VAAM incorporates portions of the removed VAAR as well as other internal agency acquisition policy. VA will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are rewritten, will publish them in the Federal Register. To minimize the number of rules published, VA will combine related topics. DATES: Comments must be received on or before March 12, 2018 to be considered in the formulation of the final rule. SUMMARY: E:\FR\FM\11JAP1.SGM 11JAP1 1322 Federal Register / Vol. 83, No. 8 / Thursday, January 11, 2018 / Proposed Rules Written comments may be submitted through www.Regulations.gov; by mail or handdelivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW, Room 1063B, Washington, DC 20420; or by fax to (202) 273–9026. Comments should indicate that they are submitted in response to ‘‘RIN 2900– AP58—Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014–V005— Parts 812, 813).’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461–4902 for an appointment. This is not a toll-free number. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Mr. Ricky Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington DC 20001, (202) 632–5276. This is not a toll-free telephone number. SUPPLEMENTARY INFORMATION: ADDRESSES: sradovich on DSK3GMQ082PROD with PROPOSALS Background This action is being taken under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR. This authority ensures that Government procurements are handled fairly and consistently, that the Government receives overall best value, and that the Government and contractors both operate under a known set of rules. The proposed rule would update the VAAR to current FAR titles, requirements, and definitions; it would correct inconsistencies and removes redundancies and duplicate material already covered by the FAR; it would also delete outdated material or information and appropriately renumber VAAR text, clauses, and provisions where required to comport with FAR format, numbering and arrangement. All amendments, revisions, and removals have been reviewed and concurred with by an Integrated Product Team of agency stakeholders. The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are VerDate Sep<11>2014 17:00 Jan 10, 2018 Jkt 244001 broken up consistent with the FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, sections, and subsections. The Office of Federal Procurement Policy Act, as codified in 41 U.S.C. 1707, provides the authority for the Federal Acquisition Regulation and for the issuance of agency acquisition regulations consistent with the FAR. When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873. VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any guidance that is applicable only to VA’s internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. Discussion and Analysis The VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal has been considered for inclusion in VA’s internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authority that are removed from the VAAR will be included in the VA Acquisition Manual (VAAM) as internal agency guidance. VAAR Part 812—Acquisition of Commercial Items In VAAR part 812, we propose to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of VA’s Chief Acquisition Officer, and add the citation for 38 U.S.C. 8127–8128 which addresses small business concerns owned and controlled by Veterans. In subpart 812.1, Acquisition of Commercial Items—General, we propose to delete 812.102, Applicability, as unnecessary duplication of language in the FAR. We propose to add 812.102–70, Applicability of Veterans preferences, to state that the preferences in subpart 819.70 apply to part 812. We propose to revise 812.301, Solicitation provisions and contract clauses for the acquisition of PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 commercial items, to delete the existing text and replace paragraph (f) with new text prescribing insertion into solicitations and contracts for commercial acquisitions the provision 852.212–70, Provisions Applicable to VA Acquisition of Commercial Items, and the clause 852.212–71, Contract Terms and Conditions Applicable to VA Acquisition of Commercial Items, which will list all VAAR provisions and clauses from other parts that are available for use in commercial acquisitions. We propose to allow a contracting officer to indicate with a checkmark the specific provisions and clauses that apply to the acquisition. We propose to add a new provision 852.212–72, Gray Market Items, to require vendors of medical equipment to be an Original Equipment Manufacturer (OEM), authorized dealer, authorized distributor or authorized reseller of such equipment. We propose to revise the list of provisions and clauses and to incorporate them into the new provision and clause being prescribed. The following provisions and clauses are not included in revised section 812.301(f) and further action on them will be addressed in future proposed rules— 852.203–71, Display of Department of Veterans Affairs Hotline Poster. 852.207–70, Report of Employment Under Commercial Activities. 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. 852.216–70, Estimated Quantities. We propose to add the following provisions and clauses to those available for use in commercial acquisitions based on their potential applicability for commercial item purchases— 852.215–70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors. 852.215–71, Evaluation Factor Commitments. 852.219–9, VA Small Business Subcontracting Plan Minimum Requirements. 852.219–10, VA Notice of Total Service-Disabled Veteran-Owned Small Business Set-Aside. 852.219–11, VA Notice of Total Veteran-Owned Small Business SetAside. 852.222–70, Contract Work Hours and Safety Standards Act—Nursing Home Care Contract Supplement. 852.232–72, Electronic Submission of Payment Requests. E:\FR\FM\11JAP1.SGM 11JAP1 Federal Register / Vol. 83, No. 8 / Thursday, January 11, 2018 / Proposed Rules 852.246–73, Noncompliance with Packaging, Packing, and/or Marking Requirements. 852.247–70, Determining Transportation Costs for Bid Evaluation. We propose to remove 812.302, Tailoring of provisions and clauses for the acquisition of commercial items, in its entirety since it deals with internal procedures for obtaining a waiver to allow tailoring of provisions and clauses to be inconsistent with customary commercial practice. sradovich on DSK3GMQ082PROD with PROPOSALS VAAR Part 813—Simplified Acquisition Procedures In VAAR part 813, we propose to add the citation for 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of VA’s Chief Acquisition Officer. We propose to add 813.003–70, Policy, which would explain that the Veterans First Contracting Program has broad applicability in contracts using Simplified Acquisition Procedures, and 813.102, Source list, to require that contracting officers use the Vendor Information Pages (VIP) database to verify Service-Disabled Veteran-Owned Small Business and Veteran-Owned Small Business status. We propose to remove 813.106, Soliciting competition, evaluation of quotations or offers, award and documentation, since paragraph (a) addresses internal procedures and paragraph (b) contains material that is adequately addressed in FAR. We will retain the title since 813.106–70 is being added. We propose to remove 813.106–3, Award and documentation, since it is material adequately addressed in FAR. We propose to remove 813.106–70, Oral purchase orders, because the FAR contains no authority to issue oral purchase orders. We propose to add 813.106–70, Soliciting competition, evaluation of quotations or offers, award and documentation—the Veterans First Contracting Program, which emphasizes that contracting officers can use other than competitive procedures under specified circumstances when awarding to Service-Disabled Veteran-Owned Businesses (SDVOSBs) or VeteranOwned Small Businesses (VOSBs). We propose to revise 813.202, Purchase guidelines, to renumber it as 813.203 to correspond to the FAR coverage; to delete the words ‘‘open market’’ as unnecessary; and to spell out Service-Disabled Veteran-Owned Small Businesses and Veteran-Owned Small Businesses the first times the acronyms are used. VerDate Sep<11>2014 17:00 Jan 10, 2018 Jkt 244001 We propose to remove 813.302, Purchase orders and 813.302–5, Clauses, because they incorrectly prescribe a clause in part 837. We propose to add 813.305–70, VA’s imprest funds and third party drafts policy, to state that the Governmentwide commercial purchase card and/or convenience checks shall be used in lieu of imprest funds and third party drafts. We propose to remove 813.307, Forms, and include it in VA’s internal procedural guidance. VAAR Part 852—Solicitation Provisions and Contract Clauses In VAAR part 852, we propose to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of VA’s Chief Acquisition Officer. In subpart 852.2, we propose to add the provision 852.212–70, Provisions Applicable to VA Acquisition of Commercial Items, to permit the contracting officer to check those that will be applicable to the individual commercial buy. In subpart 852.2, we propose to add the provision 852.212–71, Contract Terms and Conditions Applicable to VA Acquisition of Commercial Items, to permit the contracting officer to check those that will be applicable to the individual commercial buy. In subpart 852.2, we propose to add the provision 852.212–72, Gray Market Items, to ensure that new medical equipment for VA Medical Centers is purchased from authorized distributors and that all software licensing, warranty and service associated with the equipment/system shall be in accordance with the Original Equipment Manufacturer’s terms and conditions. Effect of Rulemaking Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent VA’s implementation of its legal authority and publication of the Department of Veterans Affairs Acquisition Regulation (VAAR) for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with Federal Acquisition Regulation (FAR) subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or procedures would PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 1323 be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts. Executive Orders 12866, 13563 and 13771 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory Planning and Review, defines ‘‘significant regulatory action’’ to mean 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 this Executive order.’’ VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined to be a significant regulatory action under E.O. 12866, because it raises novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive Order. VA’s impact analysis can be found as a supporting document at https://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA’s website at https://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 Through Fiscal Year to Date. This proposed rule is not expected to be subject to the requirements of E.O. 13771 because this proposed rule is E:\FR\FM\11JAP1.SGM 11JAP1 1324 Federal Register / Vol. 83, No. 8 / Thursday, January 11, 2018 / Proposed Rules expected to result in no more than de minimis costs. Paperwork Reduction Act Although this action contains provisions constituting collections of information at 48 CFR 813, under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521), no new or proposed revised collections of information are associated with this proposed rule. The information collection requirements for 48 CFR 813 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control number 2900–0393. Regulatory Flexibility Act This proposed rule would 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. This proposed rule would generally be small business neutral. The overall impact of the proposed rule would be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA’s internal operating procedures. VA estimates no cost impact to individual business would result from these rule updates. On this basis, the adoption of this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601– 612. Therefore, under 5 U.S.C. 605(b), this regulatory action is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. sradovich on DSK3GMQ082PROD with PROPOSALS Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal Governments or on the private sector. List of Subjects 48 CFR Part 812 and 813 Government procurement. 48 CFR Part 852 Government procurement, Reporting and recordkeeping requirements. VerDate Sep<11>2014 17:00 Jan 10, 2018 Jkt 244001 Signing Authority The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs approved this document on April 21, 2017, for publication. Acquisition of Commercial Items, in all solicitations and contracts for commercial acquisitions and check only those clauses that apply to the individual contract. (3) Contracting officers shall insert the clause 852.212–72, Gray Market Items, in all solicitations and contracts for commercial acquisitions of new medical equipment for VA Medical Centers and that include FAR provisions 52.212–1, Instruction to Offerors—Commercial Items, and 52.212–2, Evaluation— Commercial Items. Dated: January 3, 2018. Michael Shores, Director, Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. 812.302 For the reasons set out in the preamble, VA proposes to amend 48 CFR parts 812, 813, and 852 as follows: PART 813—SIMPLIFIED ACQUISITION PROCEDURES [Removed] 5. Section 812.302 is removed. * * * * * ■ 6. The authority citation for part 813 is revised to read as follows: ■ PART 812—ACQUISITION OF COMMERCIAL ITEMS 1. The authority citation for part 812 is revised to read as follows: ■ Authority: 38 U.S.C. 8127–8128; 40 U.S.C. 121(c); 41 U.S.C. 1702 and 48 CFR 1.301– 1.304. Authority: 38 U.S.C. 8127–8128; 40 U.S.C. 121(c); 41 U.S.C. 1702 and 48 CFR 1.301– 1.304. 813.003–70 Subpart 812.1—Acquisition of Commercial Items—General 813.003–70 2. Section 812.102 is removed. 3. Section 812.102–70 is added to subpart 812.1 to read as follows: ■ ■ 812.102–70 Applicability of veterans preferences. Based on the authority under 38 U.S.C. 8127 and 8128, the Veterans First Contracting Program in subpart 819.70 applies to VA contracts under this part, and the provisions and clauses prescribed reflect agency unique statutes applicable to the acquisition of commercial items. Subpart 812.3—Solicitation Provisions and Contract Clauses for the Acquisition of Commercial Items 4. In § 812.301: a. Remove paragraphs (a)–(e). b. Revise paragraph (f) to read as follows: ■ ■ ■ 812.301 Solicitation provisions and contract clauses for the acquisition of commercial items. (f)(1) Contracting officers shall insert the provision 852.212–70, Provisions Applicable to VA Acquisition of Commercial Items, in all solicitations for commercial acquisitions and check only those provisions that apply to the individual solicitation. (2) Contracting officers shall insert the clause 852.212–71, Contract Terms and Conditions Applicable to VA PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 [Added] 7. Section 813.003–70 is added to read as follows: ■ Policy. (a) The Veterans First Contracting Program in subpart 819.70 applies to VA contracts (see FAR 2.101, Definitions) under this part and has precedence over other small business programs referenced in FAR part 19. (b) Notwithstanding FAR 13.003(b)(2), the contracting officer shall make an award utilizing the priorities for veteran-owned small businesses as implemented within the VA hierarchy of small business program preferences, the Veterans First Contracting Program in subpart 819.70. Specifically, the contracting officer shall consider preferences for verified service-disabled veteran-owned small businesses (SDVOSBs) first, then preferences for verified veteran-owned small businesses (VOSBs). These priorities will be followed by preferences for other small businesses in accordance with FAR 19.203, and 819.7004. (c) When using competitive procedures, the preference for restricting competition to verified SDVOSBs or VOSBs is mandatory whenever market research provides a reasonable expectation of receiving two or more offers/quotes from eligible, capable and verified SDVOSBs or VOSBs at fair and reasonable prices that offer best value to the Government. (1) Pursuant to 38 U.S.C. 8127, contracts under this part shall be setaside for SDVOSBs or VOSBs, when supported by market research. E:\FR\FM\11JAP1.SGM 11JAP1 Federal Register / Vol. 83, No. 8 / Thursday, January 11, 2018 / Proposed Rules Contracting officers shall use the applicable set-aside clause prescribed at 819.7009. (2) Pursuant to 38 U.S.C. 8128 and to the extent that market research does not support an SDVOSB or VOSB set-aside, the contracting officer shall include evaluation factors as prescribed at 815.304 and the evaluation criteria clause prescribed at 815.304–71(a). (d) The SDVOSB and VOSB eligibility requirements in part 819.7003 apply, including verification of the SDVOSB and VOSB status of an offeror or awardee at the time of submission of offer/quote and prior to award. The offeror must also represent that it meets the small business size standard for the assigned North American Industry Classification Code System (NAICS) code and other small business requirements in FAR part 19 (e.g. subcontracting limitations and nonmanufacturer rule). Subpart 813.1—Procedures 813.102 [Added] 8. Section 813.102 is added to subpart 813.1 to read as follows: ■ 813.102 813.203 Purchase guidelines. Micro-purchases shall be equitably distributed among all qualified ServiceDisabled Veteran-Owned Small Businesses (SDVOSBs) or VeteranOwned Small Businesses (VOSBs), respectively, to the maximum extent practicable. 813.106–70 Soliciting competition, evaluation of quotations or offers, award and documentation—the Veterans First Contracting Program. [Removed] 15. Section 813.302–5 is removed. 16. Section 813.305–70 is added to subpart 813.3 to read as follows: ■ ■ 813.305–70 VA’s imprest funds and third party drafts policy. VA’s Government-wide commercial purchase card and/or convenience checks shall be used in lieu of imprest funds and third party drafts. 813.307 (a) General. When using competitive procedures under this part, the contracting officer shall use the Veterans First Contracting Program in subpart 819.70 and the guidance set forth in 813.003–70. (b) Pursuant to 38 U.S.C 8127(b), contracting officers may use other than competitive procedures to enter into a contract with a verified SDVOSB or VOSB for procurements under the simplified acquisition threshold. (c) For procurements above the simplified acquisition threshold, pursuant to 38 U.S.C. 8127(c), contracting officers may also award a contract under this part to a firm verified under the Veterans First Contracting Program at subpart 819.70, using procedures other than competitive procedures if— Jkt 244001 [Removed] 14. Section 813.302 is removed. 813.302–5 9. In § 813.106 remove paragraphs (a) and (b) and to retain the section heading. ■ 10. Section 813.106–3 is removed. ■ 11. Section 813.106–70 is revised to read as follows: sradovich on DSK3GMQ082PROD with PROPOSALS [Removed] 12. Section 813.202 is removed. 13. Section 813.203 is added to subpart 813.2 to read as follows: ■ ■ ■ ■ 17:00 Jan 10, 2018 813.202 813.302 [Amended] VerDate Sep<11>2014 Subpart 813.2—Actions at or Below the Micro-Purchase Threshold Subpart 813.3—Simplified Acquisition Methods Source list. Pursuant to 819.7003, contracting officers shall use the Vendor Information Pages (VIP) database to verify SDVOSB/VOSB status. 813.106 (1) Such concern is determined to be a responsible source with respect to performance of such contract opportunity; (2) The anticipated award price of the contract (including options) will exceed the simplified acquisition threshold, but will not exceed $5,000,000; and (3) In the estimation of the contracting officer, the contract award can be made at a fair and reasonable price that offers overall best value to the government. ■ [Removed] 17. Section 813.307 is removed. PART 852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 1325 Provisions Applicable to VA Acquisition of Commercial Items (Date) The Contractor agrees to comply with any provision that is incorporated herein by reference or full text to implement agency policy applicable to acquisition of commercial items or components. The following provisions that have been checked by the contracting officer are incorporated by reference or in full text; text requiring fill-ins is shown under the provision’s title: ll8 852.209–70, Organizational Conflicts of Interest. ll8 852.214–71, Restrictions on Alternate Item(s). ll8 852.214–72, Alternate Item(s). Bids on lll[Contracting officer will insert an alternate item that is considered acceptable.] will be given equal consideration along with bids on lll [Contracting officer will insert the required item and item number.] and any such bids received may be accepted if to the advantage of the Government. Tie bids will be decided in favor of lll. [Contracting officer will insert the required item and item number.] (End of provision) ll8 852.214–73, Alternate Packaging and Packing. ll8 852.214–74, Bid Samples. ll8 852.215–70, Service-Disabled VeteranOwned and Veteran-Owned Small Business Evaluation Factors. ll8 852.233–70, Protest Content/Alternative Dispute Resolution. ll8 852.233–71, Alternate Protest Procedure. ll8 852.247–70, Determining Transportation Costs for Bid Evaluation. 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 18. The authority citation for part 852 is revised to read as follows: ■ Authority: 38 U.S.C. 8127–8128, and 8151– 8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3), and 1702; and 48 CFR 1.301–1.304. Subpart 852.2—Texts of Provisions and Clauses 19. Section 852.212–70 is added to subpart 852.2 to read as follows: ■ 852.212–70 Provisions applicable to VA acquisition of commercial items. As prescribed in 812.301(f)(1), insert the following provision: PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 Area destination Factor Oakland, California ..................... Dallas, Texas .............................. Omaha, Nebraska ...................... Fort Wayne, Indiana ................... Atlanta, Georgia .......................... New York, New York .................. 3 2 3 4 3 5 Total of Factors ....................... 20 (End of provision) ll8 852.270–1, Representatives of Contracting Officers. ll8 852.273–70, Late Offers. E:\FR\FM\11JAP1.SGM 11JAP1 1326 Federal Register / Vol. 83, No. 8 / Thursday, January 11, 2018 / Proposed Rules ll8 852.273–71, Alternative Negotiation Techniques. ll8 852.273–72, Alternative Evaluation. ll8 852.273–73, Evaluation—HealthCare Resources. ll8 852.273–74, Award Without Exchanges. ■ 20. Section 852.212–71 is added to read as follows: 852.212–71 Contract terms and conditions applicable to VA acquisition of commercial items. As prescribed in 812.301(f)(2), insert the following clause: sradovich on DSK3GMQ082PROD with PROPOSALS Contract Terms and Conditions Applicable to VA Acquisition of Commercial Items (Date) (a) The Contractor agrees to comply with any clause that is incorporated herein by reference to implement agency policy applicable to acquisition of commercial items or components. The following clauses that have been checked by the contracting officer are incorporated by reference; text requiring fill-ins is shown under the clause’s title: ll8 852.203–70, Commercial Advertising. ll8 852.215–70, Service-Disabled VeteranOwned and Veteran-Owned Small Business Evaluation Factors. ll8 852.215–71, Evaluation Factor Commitments. ll8 852.219–9, VA Small Business Subcontracting Plan Minimum Requirements. ll8 852.219–10, VA Notice of Total ServiceDisabled Veteran-Owned Small Business Set-Aside. ll8 852.219–11, VA Notice of Total VeteranOwned Small Business Set-Aside. ll8 852.222–70, Contract Work Hours and Safety Standards Act—Nursing Home Care Contract Supplement. ll8 852.229–70, Sales and Use Taxes. ll8 852.232–72, Electronic Submission of Payment Requests. ll8 852.237–7, Indemnification and Medical Liability Insurance. ll8 852.237–70, Contractor Responsibilities. The contractor shall obtain all necessary licenses and/or permits required to perform VerDate Sep<11>2014 17:00 Jan 10, 2018 Jkt 244001 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 ll[Insert name of State]. 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 therefrom. ll8 852.271–72, Time Spent by Counselee in Counseling Process. ll8 852.271–73, Use and Publication of Counseling Results. ll8 852.271–74, Inspection. ll8 852.271–75, Extension of Contract Period. (b) All requests for quotations, solicitations, and contracts for commercial item services to be provided to beneficiaries must include the following clause at ll8 852.271–70, Nondiscrimination in Services Provided to Beneficiaries. (End of clause) 21. Section 852.212–72 is added to subpart 852.2 to read as follows: ■ 852.212–72 (End of clause) ll8 852.246–70, Guarantee. The contractor guarantees the equipment against defective material, workmanship and performance for a period of ll[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.], 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. [The above clause will be modified to conform to standards of the industry involved.] (End of clause) Gray Market Items. As prescribed in 812.301(f)(3), insert the following provision in solicitations and contracts for new medical equipment for VA Medical Centers and that include FAR provisions 52.212–1, Instruction to Offerors—Commercial Items, and 52.212–2, Evaluation— Commercial Items: Gray Market Items (Date) (a) Gray market items are Original Equipment Manufacturers’ (OEM) goods sold through unauthorized channels in direct competition with authorized distributors. This procurement is for new OEM medical equipment only for VA Medical Centers. No remanufactures or gray market items will be acceptable. (b) Vendor shall be an OEM, authorized dealer, authorized distributor or authorized reseller for the proposed equipment/system, verified by an authorization letter or other documents from the OEM, such that the OEM’s warranty and service are provided and maintained by the OEM. All software licensing, warranty and service associated with the equipment/system shall be in accordance with the OEM terms and conditions. ll8 852.246–71, Inspection. ll8 852.246–72, Frozen Processed Foods. ll8 852.246–73, Noncompliance with Packaging, Packing, and/or Marking Requirements. (End of clause) ll8 852.270–2, Bread and Bakery Products— [FR Doc. 2018–00169 Filed 1–10–18; 8:45 am] Quantities. ll8 852.270–3, Purchase of Shellfish. BILLING CODE 8320–01–P PO 00000 Frm 00016 Fmt 4702 Sfmt 9990 E:\FR\FM\11JAP1.SGM 11JAP1

Agencies

[Federal Register Volume 83, Number 8 (Thursday, January 11, 2018)]
[Proposed Rules]
[Pages 1321-1326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00169]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 812, 813, and 852

RIN 2900-AP58


Revise and Streamline VA Acquisition Regulation To Adhere to 
Federal Acquisition Regulation Principles (VAAR Case 2014-V005--Parts 
812, 813)

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
and update its VA Acquisition Regulation (VAAR) in phased increments to 
revise or remove any policy superseded by changes in the Federal 
Acquisition Regulation (FAR), to remove procedural guidance internal to 
VA into the VAAM, and to incorporate any new agency specific 
regulations or policies. These changes seek to streamline and align the 
VAAR with the FAR and remove outdated and duplicative requirements and 
reduce burden on contractors. The VAAM incorporates portions of the 
removed VAAR as well as other internal agency acquisition policy. VA 
will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are 
rewritten, will publish them in the Federal Register. To minimize the 
number of rules published, VA will combine related topics.

DATES: Comments must be received on or before March 12, 2018 to be 
considered in the formulation of the final rule.

[[Page 1322]]


ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue NW, Room 1063B, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AP58--Revise and Streamline VA Acquisition Regulation to 
Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-
V005--Parts 812, 813).'' Copies of comments received will be available 
for public inspection in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. This is not a toll-free number. In addition, during the 
comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Ricky Clark, Senior Procurement 
Analyst, Procurement Policy and Warrant Management Services, 003A2A, 
425 I Street NW, Washington DC 20001, (202) 632-5276. This is not a 
toll-free telephone number.

SUPPLEMENTARY INFORMATION:

Background

    This action is being taken under the authority of the Office of 
Federal Procurement Policy (OFPP) Act which provides the authority for 
an agency head to issue agency acquisition regulations that implement 
or supplement the FAR. This authority ensures that Government 
procurements are handled fairly and consistently, that the Government 
receives overall best value, and that the Government and contractors 
both operate under a known set of rules.
    The proposed rule would update the VAAR to current FAR titles, 
requirements, and definitions; it would correct inconsistencies and 
removes redundancies and duplicate material already covered by the FAR; 
it would also delete outdated material or information and appropriately 
renumber VAAR text, clauses, and provisions where required to comport 
with FAR format, numbering and arrangement. All amendments, revisions, 
and removals have been reviewed and concurred with by an Integrated 
Product Team of agency stakeholders.
    The VAAR uses the regulatory structure and arrangement of the FAR 
and headings and subject areas are broken up consistent with the FAR 
content. The VAAR is divided into subchapters, parts (each of which 
covers a separate aspect of acquisition), subparts, sections, and 
subsections.
    The Office of Federal Procurement Policy Act, as codified in 41 
U.S.C. 1707, provides the authority for the Federal Acquisition 
Regulation and for the issuance of agency acquisition regulations 
consistent with the FAR.
    When Federal agencies acquire supplies and services using 
appropriated funds, the purchase is governed by the FAR, set forth at 
Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 
53, and the agency regulations that implement and supplement the FAR. 
The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873.
    VA is proposing to revise the VAAR to add new policy or regulatory 
requirements and to remove any guidance that is applicable only to VA's 
internal operating processes or procedures. Codified acquisition 
regulations may be amended and revised only through rulemaking.

Discussion and Analysis

    The VA proposes to make the following changes to the VAAR in this 
phase of its revision and streamlining initiative. For procedural 
guidance cited below that is proposed to be deleted from the VAAR, each 
section cited for removal has been considered for inclusion in VA's 
internal agency operating procedures in accordance with FAR 
1.301(a)(2). Similarly, delegations of authority that are removed from 
the VAAR will be included in the VA Acquisition Manual (VAAM) as 
internal agency guidance.

VAAR Part 812--Acquisition of Commercial Items

    In VAAR part 812, we propose to replace the 38 U.S.C. 501 citation 
with 41 U.S.C. 1702 which addresses the acquisition planning and 
management responsibilities of VA's Chief Acquisition Officer, and add 
the citation for 38 U.S.C. 8127-8128 which addresses small business 
concerns owned and controlled by Veterans.
    In subpart 812.1, Acquisition of Commercial Items--General, we 
propose to delete 812.102, Applicability, as unnecessary duplication of 
language in the FAR.
    We propose to add 812.102-70, Applicability of Veterans 
preferences, to state that the preferences in subpart 819.70 apply to 
part 812.
    We propose to revise 812.301, Solicitation provisions and contract 
clauses for the acquisition of commercial items, to delete the existing 
text and replace paragraph (f) with new text prescribing insertion into 
solicitations and contracts for commercial acquisitions the provision 
852.212-70, Provisions Applicable to VA Acquisition of Commercial 
Items, and the clause 852.212-71, Contract Terms and Conditions 
Applicable to VA Acquisition of Commercial Items, which will list all 
VAAR provisions and clauses from other parts that are available for use 
in commercial acquisitions. We propose to allow a contracting officer 
to indicate with a checkmark the specific provisions and clauses that 
apply to the acquisition. We propose to add a new provision 852.212-72, 
Gray Market Items, to require vendors of medical equipment to be an 
Original Equipment Manufacturer (OEM), authorized dealer, authorized 
distributor or authorized reseller of such equipment.
    We propose to revise the list of provisions and clauses and to 
incorporate them into the new provision and clause being prescribed. 
The following provisions and clauses are not included in revised 
section 812.301(f) and further action on them will be addressed in 
future proposed rules--
    852.203-71, Display of Department of Veterans Affairs Hotline 
Poster.
    852.207-70, Report of Employment Under Commercial Activities.
    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.
    852.216-70, Estimated Quantities.
    We propose to add the following provisions and clauses to those 
available for use in commercial acquisitions based on their potential 
applicability for commercial item purchases--
    852.215-70, Service-Disabled Veteran-Owned and Veteran-Owned Small 
Business Evaluation Factors.
    852.215-71, Evaluation Factor Commitments.
    852.219-9, VA Small Business Subcontracting Plan Minimum 
Requirements.
    852.219-10, VA Notice of Total Service-Disabled Veteran-Owned Small 
Business Set-Aside.
    852.219-11, VA Notice of Total Veteran-Owned Small Business Set-
Aside.
    852.222-70, Contract Work Hours and Safety Standards Act--Nursing 
Home Care Contract Supplement.
    852.232-72, Electronic Submission of Payment Requests.

[[Page 1323]]

    852.246-73, Noncompliance with Packaging, Packing, and/or Marking 
Requirements.
    852.247-70, Determining Transportation Costs for Bid Evaluation.
    We propose to remove 812.302, Tailoring of provisions and clauses 
for the acquisition of commercial items, in its entirety since it deals 
with internal procedures for obtaining a waiver to allow tailoring of 
provisions and clauses to be inconsistent with customary commercial 
practice.

VAAR Part 813--Simplified Acquisition Procedures

    In VAAR part 813, we propose to add the citation for 41 U.S.C. 1702 
which addresses the acquisition planning and management 
responsibilities of VA's Chief Acquisition Officer.
    We propose to add 813.003-70, Policy, which would explain that the 
Veterans First Contracting Program has broad applicability in contracts 
using Simplified Acquisition Procedures, and 813.102, Source list, to 
require that contracting officers use the Vendor Information Pages 
(VIP) database to verify Service-Disabled Veteran-Owned Small Business 
and Veteran-Owned Small Business status.
    We propose to remove 813.106, Soliciting competition, evaluation of 
quotations or offers, award and documentation, since paragraph (a) 
addresses internal procedures and paragraph (b) contains material that 
is adequately addressed in FAR. We will retain the title since 813.106-
70 is being added.
    We propose to remove 813.106-3, Award and documentation, since it 
is material adequately addressed in FAR.
    We propose to remove 813.106-70, Oral purchase orders, because the 
FAR contains no authority to issue oral purchase orders.
    We propose to add 813.106-70, Soliciting competition, evaluation of 
quotations or offers, award and documentation--the Veterans First 
Contracting Program, which emphasizes that contracting officers can use 
other than competitive procedures under specified circumstances when 
awarding to Service-Disabled Veteran-Owned Businesses (SDVOSBs) or 
Veteran-Owned Small Businesses (VOSBs).
    We propose to revise 813.202, Purchase guidelines, to renumber it 
as 813.203 to correspond to the FAR coverage; to delete the words 
``open market'' as unnecessary; and to spell out Service-Disabled 
Veteran-Owned Small Businesses and Veteran-Owned Small Businesses the 
first times the acronyms are used.
    We propose to remove 813.302, Purchase orders and 813.302-5, 
Clauses, because they incorrectly prescribe a clause in part 837.
    We propose to add 813.305-70, VA's imprest funds and third party 
drafts policy, to state that the Government-wide commercial purchase 
card and/or convenience checks shall be used in lieu of imprest funds 
and third party drafts.
    We propose to remove 813.307, Forms, and include it in VA's 
internal procedural guidance.

VAAR Part 852--Solicitation Provisions and Contract Clauses

    In VAAR part 852, we propose to replace the 38 U.S.C. 501 citation 
with 41 U.S.C. 1702 which addresses the acquisition planning and 
management responsibilities of VA's Chief Acquisition Officer.
    In subpart 852.2, we propose to add the provision 852.212-70, 
Provisions Applicable to VA Acquisition of Commercial Items, to permit 
the contracting officer to check those that will be applicable to the 
individual commercial buy.
    In subpart 852.2, we propose to add the provision 852.212-71, 
Contract Terms and Conditions Applicable to VA Acquisition of 
Commercial Items, to permit the contracting officer to check those that 
will be applicable to the individual commercial buy.
    In subpart 852.2, we propose to add the provision 852.212-72, Gray 
Market Items, to ensure that new medical equipment for VA Medical 
Centers is purchased from authorized distributors and that all software 
licensing, warranty and service associated with the equipment/system 
shall be in accordance with the Original Equipment Manufacturer's terms 
and conditions.

Effect of Rulemaking

    Title 48, Federal Acquisition Regulations System, Chapter 8, 
Department of Veterans Affairs, of the Code of Federal Regulations, as 
proposed to be revised by this rulemaking, would represent VA's 
implementation of its legal authority and publication of the Department 
of Veterans Affairs Acquisition Regulation (VAAR) for the cited 
applicable parts. Other than future amendments to this rule or 
governing statutes for the cited applicable parts, or as otherwise 
authorized by approved deviations or waivers in accordance with Federal 
Acquisition Regulation (FAR) subpart 1.4, Deviations from the FAR, and 
as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, 
no contrary guidance or procedures would be authorized. All existing or 
subsequent VA guidance would be read to conform with the rulemaking if 
possible or, if not possible, such guidance would be superseded by this 
rulemaking as pertains to the cited applicable VAAR parts.

Executive Orders 12866, 13563 and 13771

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
E.O. 12866, Regulatory Planning and Review, defines ``significant 
regulatory action'' to mean 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 
this Executive order.''
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action, and it has been 
determined to be a significant regulatory action under E.O. 12866, 
because it raises novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order. VA's impact analysis can be found as a supporting 
document at https://www.regulations.gov, usually within 48 hours after 
the rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's website at 
https://www.va.gov/orpm by following the link for VA Regulations 
Published from FY 2004 Through Fiscal Year to Date. This proposed rule 
is not expected to be subject to the requirements of E.O. 13771 because 
this proposed rule is

[[Page 1324]]

expected to result in no more than de minimis costs.

Paperwork Reduction Act

    Although this action contains provisions constituting collections 
of information at 48 CFR 813, under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised 
collections of information are associated with this proposed rule. The 
information collection requirements for 48 CFR 813 are currently 
approved by the Office of Management and Budget (OMB) and have been 
assigned OMB control number 2900-0393.

Regulatory Flexibility Act

    This proposed rule would 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. This proposed rule would 
generally be small business neutral. The overall impact of the proposed 
rule would be of benefit to small businesses owned by Veterans or 
service-disabled Veterans as the VAAR is being updated to remove 
extraneous procedural information that applies only to VA's internal 
operating procedures. VA estimates no cost impact to individual 
business would result from these rule updates. On this basis, the 
adoption of this proposed rule would not have a significant economic 
impact on a substantial number of small entities as they are defined in 
the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 
U.S.C. 605(b), this regulatory action is exempt from the initial and 
final regulatory flexibility analysis requirements of sections 603 and 
604.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal Governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal Governments or on the private 
sector.

List of Subjects

48 CFR Part 812 and 813

    Government procurement.

48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs 
approved this document on April 21, 2017, for publication.

    Dated: January 3, 2018.
Michael Shores,
Director, Regulation Policy & Management, Office of the Secretary, 
Department of Veterans Affairs.

    For the reasons set out in the preamble, VA proposes to amend 48 
CFR parts 812, 813, and 852 as follows:

PART 812--ACQUISITION OF COMMERCIAL ITEMS

0
1. The authority citation for part 812 is revised to read as follows:

    Authority: 38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C. 1702 
and 48 CFR 1.301-1.304.

Subpart 812.1--Acquisition of Commercial Items--General

0
2. Section 812.102 is removed.
0
3. Section 812.102-70 is added to subpart 812.1 to read as follows:


812.102-70  Applicability of veterans preferences.

    Based on the authority under 38 U.S.C. 8127 and 8128, the Veterans 
First Contracting Program in subpart 819.70 applies to VA contracts 
under this part, and the provisions and clauses prescribed reflect 
agency unique statutes applicable to the acquisition of commercial 
items.

Subpart 812.3--Solicitation Provisions and Contract Clauses for the 
Acquisition of Commercial Items

0
4. In Sec.  812.301:
0
a. Remove paragraphs (a)-(e).
0
b. Revise paragraph (f) to read as follows:


812.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    (f)(1) Contracting officers shall insert the provision 852.212-70, 
Provisions Applicable to VA Acquisition of Commercial Items, in all 
solicitations for commercial acquisitions and check only those 
provisions that apply to the individual solicitation.
    (2) Contracting officers shall insert the clause 852.212-71, 
Contract Terms and Conditions Applicable to VA Acquisition of 
Commercial Items, in all solicitations and contracts for commercial 
acquisitions and check only those clauses that apply to the individual 
contract.
    (3) Contracting officers shall insert the clause 852.212-72, Gray 
Market Items, in all solicitations and contracts for commercial 
acquisitions of new medical equipment for VA Medical Centers and that 
include FAR provisions 52.212-1, Instruction to Offerors--Commercial 
Items, and 52.212-2, Evaluation--Commercial Items.


812.302  [Removed]

0
5. Section 812.302 is removed.
* * * * *

PART 813--SIMPLIFIED ACQUISITION PROCEDURES

0
6. The authority citation for part 813 is revised to read as follows:

    Authority: 38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C. 1702 
and 48 CFR 1.301-1.304.


813.003-70  [Added]

0
7. Section 813.003-70 is added to read as follows:


813.003-70  Policy.

    (a) The Veterans First Contracting Program in subpart 819.70 
applies to VA contracts (see FAR 2.101, Definitions) under this part 
and has precedence over other small business programs referenced in FAR 
part 19.
    (b) Notwithstanding FAR 13.003(b)(2), the contracting officer shall 
make an award utilizing the priorities for veteran-owned small 
businesses as implemented within the VA hierarchy of small business 
program preferences, the Veterans First Contracting Program in subpart 
819.70. Specifically, the contracting officer shall consider 
preferences for verified service-disabled veteran-owned small 
businesses (SDVOSBs) first, then preferences for verified veteran-owned 
small businesses (VOSBs). These priorities will be followed by 
preferences for other small businesses in accordance with FAR 19.203, 
and 819.7004.
    (c) When using competitive procedures, the preference for 
restricting competition to verified SDVOSBs or VOSBs is mandatory 
whenever market research provides a reasonable expectation of receiving 
two or more offers/quotes from eligible, capable and verified SDVOSBs 
or VOSBs at fair and reasonable prices that offer best value to the 
Government.
    (1) Pursuant to 38 U.S.C. 8127, contracts under this part shall be 
set-aside for SDVOSBs or VOSBs, when supported by market research.

[[Page 1325]]

Contracting officers shall use the applicable set-aside clause 
prescribed at 819.7009.
    (2) Pursuant to 38 U.S.C. 8128 and to the extent that market 
research does not support an SDVOSB or VOSB set-aside, the contracting 
officer shall include evaluation factors as prescribed at 815.304 and 
the evaluation criteria clause prescribed at 815.304-71(a).
    (d) The SDVOSB and VOSB eligibility requirements in part 819.7003 
apply, including verification of the SDVOSB and VOSB status of an 
offeror or awardee at the time of submission of offer/quote and prior 
to award. The offeror must also represent that it meets the small 
business size standard for the assigned North American Industry 
Classification Code System (NAICS) code and other small business 
requirements in FAR part 19 (e.g. subcontracting limitations and non-
manufacturer rule).

Subpart 813.1--Procedures


813.102  [Added]

0
8. Section 813.102 is added to subpart 813.1 to read as follows:


813.102  Source list.

    Pursuant to 819.7003, contracting officers shall use the Vendor 
Information Pages (VIP) database to verify SDVOSB/VOSB status.


813.106  [Amended]

0
9. In Sec.  813.106 remove paragraphs (a) and (b) and to retain the 
section heading.
0
10. Section 813.106-3 is removed.
0
11. Section 813.106-70 is revised to read as follows:


813.106-70  Soliciting competition, evaluation of quotations or offers, 
award and documentation--the Veterans First Contracting Program.

    (a) General. When using competitive procedures under this part, the 
contracting officer shall use the Veterans First Contracting Program in 
subpart 819.70 and the guidance set forth in 813.003-70.
    (b) Pursuant to 38 U.S.C 8127(b), contracting officers may use 
other than competitive procedures to enter into a contract with a 
verified SDVOSB or VOSB for procurements under the simplified 
acquisition threshold.
    (c) For procurements above the simplified acquisition threshold, 
pursuant to 38 U.S.C. 8127(c), contracting officers may also award a 
contract under this part to a firm verified under the Veterans First 
Contracting Program at subpart 819.70, using procedures other than 
competitive procedures if--
    (1) Such concern is determined to be a responsible source with 
respect to performance of such contract opportunity;
    (2) The anticipated award price of the contract (including options) 
will exceed the simplified acquisition threshold, but will not exceed 
$5,000,000; and
    (3) In the estimation of the contracting officer, the contract 
award can be made at a fair and reasonable price that offers overall 
best value to the government.

Subpart 813.2--Actions at or Below the Micro-Purchase Threshold


813.202  [Removed]

0
12. Section 813.202 is removed.
0
13. Section 813.203 is added to subpart 813.2 to read as follows:


813.203  Purchase guidelines.

    Micro-purchases shall be equitably distributed among all qualified 
Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) or Veteran-
Owned Small Businesses (VOSBs), respectively, to the maximum extent 
practicable.

Subpart 813.3--Simplified Acquisition Methods


813.302  [Removed]

0
14. Section 813.302 is removed.


813.302-5  [Removed]

0
15. Section 813.302-5 is removed.
0
16. Section 813.305-70 is added to subpart 813.3 to read as follows:


813.305-70  VA's imprest funds and third party drafts policy.

    VA's Government-wide commercial purchase card and/or convenience 
checks shall be used in lieu of imprest funds and third party drafts.


813.307  [Removed]

0
17. Section 813.307 is removed.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
18. The authority citation for part 852 is revised to read as follows:

    Authority: 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 
41 U.S.C. 1121(c)(3), and 1702; and 48 CFR 1.301-1.304.

Subpart 852.2--Texts of Provisions and Clauses

0
19. Section 852.212-70 is added to subpart 852.2 to read as follows:


852.212-70  Provisions applicable to VA acquisition of commercial 
items.

    As prescribed in 812.301(f)(1), insert the following provision:

Provisions Applicable to VA Acquisition of Commercial Items (Date)

    The Contractor agrees to comply with any provision that is 
incorporated herein by reference or full text to implement agency 
policy applicable to acquisition of commercial items or components. 
The following provisions that have been checked by the contracting 
officer are incorporated by reference or in full text; text 
requiring fill-ins is shown under the provision's title:

__ 852.209-70, Organizational Conflicts of Interest.
__ 852.214-71, Restrictions on Alternate Item(s).
__ 852.214-72, Alternate Item(s).
    Bids on ___[Contracting officer will insert an alternate item 
that is considered acceptable.] will be given equal consideration 
along with bids on ___[Contracting officer will insert the required 
item and item number.] and any such bids received may be accepted if 
to the advantage of the Government. Tie bids will be decided in 
favor of ___. [Contracting officer will insert the required item and 
item number.]
(End of provision)
__ 852.214-73, Alternate Packaging and Packing.
__ 852.214-74, Bid Samples.
__ 852.215-70, Service-Disabled Veteran-Owned and Veteran-Owned 
Small Business Evaluation Factors.
__ 852.233-70, Protest Content/Alternative Dispute Resolution.
__ 852.233-71, Alternate Protest Procedure.
__ 852.247-70, Determining Transportation Costs for Bid Evaluation.

    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)
__ 852.270-1, Representatives of Contracting Officers.
__ 852.273-70, Late Offers.

[[Page 1326]]

__ 852.273-71, Alternative Negotiation Techniques.
__ 852.273-72, Alternative Evaluation.
__ 852.273-73, Evaluation--Health-Care Resources.
__ 852.273-74, Award Without Exchanges.
0
20. Section 852.212-71 is added to read as follows:


852.212-71  Contract terms and conditions applicable to VA acquisition 
of commercial items.

    As prescribed in 812.301(f)(2), insert the following clause:

Contract Terms and Conditions Applicable to VA Acquisition of 
Commercial Items (Date)

    (a) The Contractor agrees to comply with any clause that is 
incorporated herein by reference to implement agency policy 
applicable to acquisition of commercial items or components. The 
following clauses that have been checked by the contracting officer 
are incorporated by reference; text requiring fill-ins is shown 
under the clause's title:

__ 852.203-70, Commercial Advertising.
__ 852.215-70, Service-Disabled Veteran-Owned and Veteran-Owned 
Small Business Evaluation Factors.
__ 852.215-71, Evaluation Factor Commitments.
__ 852.219-9, VA Small Business Subcontracting Plan Minimum 
Requirements.
__ 852.219-10, VA Notice of Total Service-Disabled Veteran-Owned 
Small Business Set-Aside.
__ 852.219-11, VA Notice of Total Veteran-Owned Small Business Set-
Aside.
__ 852.222-70, Contract Work Hours and Safety Standards Act--Nursing 
Home Care Contract Supplement.
__ 852.229-70, Sales and Use Taxes.
__ 852.232-72, Electronic Submission of Payment Requests.
__ 852.237-7, Indemnification and Medical Liability Insurance.
__ 852.237-70, Contractor Responsibilities.

    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 __[Insert name of 
State]. 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 therefrom.
(End of clause)
__ 852.246-70, Guarantee.
    The contractor guarantees the equipment against defective 
material, workmanship and performance for a period of __[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.], 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. 
[The above clause will be modified to conform to standards of the 
industry involved.]
(End of clause)
__ 852.246-71, Inspection.
__ 852.246-72, Frozen Processed Foods.
__ 852.246-73, Noncompliance with Packaging, Packing, and/or Marking 
Requirements.
__ 852.270-2, Bread and Bakery Products--Quantities.
__ 852.270-3, Purchase of Shellfish.
__ 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.
    (b) All requests for quotations, solicitations, and contracts 
for commercial item services to be provided to beneficiaries must 
include the following clause at
__ 852.271-70, Nondiscrimination in Services Provided to 
Beneficiaries.
(End of clause)
0
21. Section 852.212-72 is added to subpart 852.2 to read as follows:


852.212-72  Gray Market Items.

    As prescribed in 812.301(f)(3), insert the following provision in 
solicitations and contracts for new medical equipment for VA Medical 
Centers and that include FAR provisions 52.212-1, Instruction to 
Offerors--Commercial Items, and 52.212-2, Evaluation--Commercial Items:

Gray Market Items (Date)

    (a) Gray market items are Original Equipment Manufacturers' 
(OEM) goods sold through unauthorized channels in direct competition 
with authorized distributors. This procurement is for new OEM 
medical equipment only for VA Medical Centers. No remanufactures or 
gray market items will be acceptable.
    (b) Vendor shall be an OEM, authorized dealer, authorized 
distributor or authorized reseller for the proposed equipment/
system, verified by an authorization letter or other documents from 
the OEM, such that the OEM's warranty and service are provided and 
maintained by the OEM. All software licensing, warranty and service 
associated with the equipment/system shall be in accordance with the 
OEM terms and conditions.
(End of clause)
[FR Doc. 2018-00169 Filed 1-10-18; 8:45 am]
BILLING CODE 8320-01-P
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