Revise and Streamline VA Acquisition Regulation-Parts 831 and 833, 14826-14833 [2018-04003]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 83, Number 67 (Friday, April 6, 2018)]
[Proposed Rules]
[Pages 14826-14833]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04003]


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DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 831, 833, 852 and 871

RIN 2900-AQ02APxx


Revise and Streamline VA Acquisition Regulation--Parts 831 and 
833

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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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revise or remove any policy superseded by changes in the Federal 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 any procedural guidance 
internal to VA into the VA Acquisition Manual (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outdated and duplicative requirements and reduce burden on contractors.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, we will publish 
them in the Federal Register. VA will combine related topics, as 
appropriate. In particular, this rulemaking revises VAAR parts 831--
Contract Cost Principles and Procedures and 833--Protests, Disputes, 
and Appeals, as well as affected parts 852--Solicitation Provisions and 
Contract Clauses, and 871--Loan Guaranty and Vocational Rehabilitation 
and Employment Programs.

DATES: Comments must be received on or before June 5, 2018 to be 
considered in the formulation of the final rule.

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-AQ02--Revise and Streamline VA Acquisition Regulation--
Parts 831 and 833).'' 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. Rafael N. Taylor, Senior 
Procurement Analyst, Procurement Policy and Warrant Management 
Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382-
2787. This is not a toll-free telephone number.

SUPPLEMENTARY INFORMATION:

Background

    This rulemaking is issued 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.
    VA is proposing to revise the VAAR to add new policy or regulatory 
requirements and to remove any redundant guidance and guidance that is 
applicable only to VA's internal operating processes or procedures. 
Codified acquisition regulations may be amended and revised only 
through rulemaking. All amendments, revisions, and removals have been 
reviewed and concurred with by VA's Integrated Product Team of agency 
stakeholders.
    The VAAR uses the regulatory structure and arrangement of the FAR 
and headings and subject areas are consistent with FAR content. The 
VAAR is divided into subchapters, parts (each of which covers a 
separate aspect of

[[Page 14827]]

acquisition), subparts, sections, and subsections.
    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.

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 authorities that are removed 
from the VAAR will be included in the VA Acquisition Manual (VAAM) as 
internal agency guidance. The VAAM is being created in parallel with 
these revisions to the VAAR and is not subject to the rulemaking 
process as they are internal VA procedures and guidance. The VAAM will 
not be finalized until corresponding VAAR parts are finalized and 
therefore the VAAM is not yet available on line.
    We propose to revise the authority citations under Parts 831, 833, 
and 871 to include a reference to 41 U.S.C. 1121(c)(3) which is from 
Title 41, Public Contracts, Positive Law codification that speaks to 
the authority of an executive agency under another law to prescribe 
policies, regulations, procedures, and forms for procurement that are 
subject to the authority conferred in the cited section, as well as 
other sections of Title 41 as shown therein. For parts 831 and 871, we 
also 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 Chief Acquisition Officers and Senior Procurement 
Executives, to include implementation of unique procurement policies, 
regulations and standards of the executive agency. 38 U.S.C. 501 is a 
more general authority for the Secretary to utilize to prescribe all 
rules and regulations. The title 41 authority is more appropriate to 
cite when publishing the VAAR. Any other proposed changes to 
authorities are shown under the individual parts below.

VAAR Part 831--Contract Cost Principles and Procedures

    In addition to the changes in authority cited earlier in this 
preamble, we propose to revise the authority citations under Part 831 
to add 38 U.S.C. chapter 31, which is the basic statute for providing 
training and rehabilitation for veterans with service-connected 
disabilities.
    In subpart 831.70, we propose to revise the title of this subpart 
to more accurately reflect the subject matter and because it duplicated 
the title for part 831. We propose to revise the title for subpart 
831.70 from ``Contract Cost Principles and Procedures,'' to ``Contract 
Cost Principles and Procedures for Veterans Services under 38 U.S.C. 
Chapter 31.''
    In section 831.7000, Scope of subpart, we propose to revise the 
section to clarify that the cost principles apply to the negotiation of 
prices under fixed-price contracts as well as to costs under cost 
reimbursement contracts, and to contracts with educational institutions 
as well as those with commercial and non-profit organizations.
    We propose to add a new section 831.7000-1 titled ``Definitions,'' 
to provide definitions for four terms used in the part.
    In section 831.7001, we propose to revise the title from 
``Allowable costs under cost reimbursement vocational rehabilitation 
and education contracts or agreements'' to read ``Allowable costs and 
negotiated prices under vocational rehabilitation and education 
contracts'' to more accurately describe the subject matter of the 
section.
    In section 831.7001-1, Tuition, we propose to amend the text to 
simplify the limitations on tuition and enrollment fees that may be 
paid under the chapter 31 program, and to standardize throughout the 
part the term ``Veteran student'' for the beneficiary of the chapter 31 
programs.
    In section 831.7001-2, Special services or courses, we propose 
minor revisions to clarify terms for services or courses that are 
supplementary to those customarily provided to similarly circumstanced 
non-Veteran students.
    In section 831.7001-3, Books, supplies, and equipment required to 
be personally owned, we propose to amend the text to clarify the 
limitations on fees that may be paid for these and other miscellaneous 
items under the chapter 31 program, and to further reorganize the 
section by combining limits that apply to several items or categories. 
We propose to move and combine certain paragraphs where appropriate, to 
fall under more applicable category headings, to streamline the 
language under revised paragraphs (a) through (e), and to remove 
paragraphs (f) through (k).
    In section 831.7001-4, Medical services and hospital care, we 
propose to revise the text to make minor edits to clarify some terms.
    In section 831.7001-6, Consumable instructional supplies, we 
propose to revise the number of the section to 831.7001-5, and to make 
two other minor edits.
    In section 831.7001-7, Reimbursement for other supplies and 
services, we propose to revise the number of the section to 831.7001-6, 
and to make one other minor edit.

VAAR Part 833--Protests, Disputes, and Appeals

    We propose to amend the authority citation for part 833 to add the 
reference to the positive law codification of Title 41, United States 
Code, pertaining to the general authority of an executive agency under 
another law to prescribe policies, regulations, procedures, and forms 
for procurement subject to the authority conferred in 41 U.S.C. 
1121(c)(3). We also propose to add the Title 41, chapter 71 authority 
pertaining to contract disputes, to include alternate means of dispute 
resolution.
    We propose to delete the existing language in section 833.102, 
General, since it contains guidance that is internal operational 
procedures of the VA and will be in the VA Acquisition Manual (VAAM).
    We propose to delete outdated information in section 833.103, 
Protests to VA, and renumber the section 833.103-70 in accordance with 
FAR drafting guidelines to reflect information that appropriately 
supplements the FAR. We propose to add new language in paragraph (a) 
that: (1) Would update information for where an interested party may 
protest to the contracting officer; or, (2) as an alternative, may 
request independent review above the level of the contracting officer 
to the Executive Director, Office of Acquisition and Logistics (ED/
OAL), supported by the Office of Risk Management and Compliance Service 
(RMCS); or (3) where in the VA interested parties may appeal a 
contracting officer's decision on a protest. This new unified approach 
would streamline VA protest management by combining responsibilities 
previously shared between the Office of Construction and Facilities 
Management (CFM) and the former Deputy Assistant Secretary for 
Acquisition and Materiel Management. Some of the duties formerly 
assigned to

[[Page 14828]]

this old entity would be subsumed by a new organizational entity--the 
ED/OAL and one of its subordinate activities, RMCS, which handles 
protests on behalf of the ED. A new email address [email protected] was 
secured by RMCS to be used exclusively for purposes of electronic 
submission of protest related documents by offerors/bidders.
    In the renumbered section 833.103-70, Protests to VA, we also 
propose to add new language in a newly designated paragraph (b) that 
would revise slightly the language, but would retain the current types 
of protests that may be dismissed by VA without consideration of the 
merits, or may be forwarded to another agency for appropriate action. 
This proposed revision would renumber the paragraphs using standard 
numbering and format, and would make other minor edits including the 
following:
    Paragraph (4)(i), we propose to renumber the paragraph to (b)(1) 
and to update the current positive law codified reference to the 
Contract Disputes statute, 41 U.S.C. chapter 71.
    Paragraphs (4)(ii) through (viii) are proposed to be renumbered 
(b)(2) through (8), respectively.
    In paragraph (b)(2), we propose to add language that states that 
pursuant to Public Law 114-328, the Small Business Administration (SBA) 
will also hear cases related to size, status, and ownership and control 
challenges under the VA Veterans First Contracting Program.
    The newly renumbered proposed paragraph (b)(6), Contracts for 
materials, supplies, articles, and equipment exceeding $15,000, would 
provide that challenges of the legal status of a firm as a regular 
dealer or manufacturer be determined solely by the procuring agency, 
the SBA (if a small business is involved), and the Secretary of Labor.
    In the newly renumbered proposed paragraph (b)(7), Subcontractor 
protests, the language would be revised to clarify that VA will not 
consider subcontractor protests except where VA determines it is in the 
interest of the Government. The phrase ``except where VA determines it 
is in the interest of the Government'' would be added to further 
clarify the sentence in lieu of the phrase ``by or for the 
Government.''
    We propose to renumber the existing paragraph (b), which would 
encourage the use of Alternative Dispute Resolution (ADR) at any stage, 
to paragraph (c).
    We propose to renumber paragraph (f), which details the new agency 
appellate review process for contracting officer's protest decision to 
be performed solely by the Executive Director, Office of Acquisition 
and Logistics, to paragraph (d).
    We propose to delete section 833.104, Protests to GAO, since it 
contains procedural guidance that is internal to VA and will be in the 
VA Acquisition Manual (VAAM) and the FAR provides adequate notice to 
potential offerors.
    We propose to renumber section 833.106, Solicitation provisions, as 
833.106-70 to comport with FAR drafting guidelines and to reflect it 
supplements the FAR. The section would provide that the contracting 
officer shall insert the provision at 852.233-70, Protest content/
alternative dispute resolution and the provision at 852.233-71, 
Alternate protest procedure, in solicitations expected to exceed the 
simplified acquisition threshold. The updated provision would include a 
new centralized alternate review and appeal process rather than the 
previous bifurcated CFM/OAL approach. It also would include a new 
dedicated email address to facilitate electronic protest submissions.
    In subpart 833.2, Disputes and Appeals, section 833.209, Suspected 
fraudulent claims, we propose to revise the text to clarify that the 
contracting officer may not initiate any collection, recovery, or other 
settlement action concerning suspected fraudulent claims reported to 
the Office of the Inspector General (OIG), and referred to the 
Department of Justice, without first obtaining the concurrence of the 
U.S. Attorney concerned, through the OIG.
    We propose to delete paragraphs (a) and (b) of the existing 
language in section 833.211, Contracting officer's decision, as the 
language is redundant to the FAR and is adequately covered in FAR 
33.211. We propose to revise the language in the existing paragraph (c) 
and renumber it as (a) to align with the FAR in order to clarify that 
for purposes of appealing a VA contracting officer's final decision, 
the cognizant Board of Contract Appeals is the Civilian Board of 
Contract Appeals (CBCA).
    We propose to delete section 833.212, Contracting officer's duties 
upon appeal, since it contains procedural guidance that is internal to 
VA and will be updated and moved to the VA Acquisition Manual (VAAM). 
The cognizant FAR part that this implements provides adequate notice to 
potential offerors.
    We propose to revise section 833.213, Obligation to continue 
performance. Paragraph (a) would be revised to make one grammatical 
correction by adding ``FAR'' at the beginning of the second sentence in 
front of the FAR clause. Paragraph (b) would be revised to clarify 
that, in the event of a dispute not arising under, but relating to, the 
contract, if the contracting officer directs continued performance and 
considers providing financing for such continued performance, the 
contracting officer shall contact OGC for advice prior to requesting 
higher level approval for or authorizing such financing. It would also 
require the contracting officer to document in the contract file any 
required approvals and to explain how the Government's interest would 
be properly secured with respect to such financing.
    We propose to revise section 833.214, Alternative dispute 
resolution (ADR), to clarify that guidance for ADR procedures may be 
obtained at the U.S. Civilian Board of Contract Appeals website https://www.cbca.gsa.gov. This section would retain the requirement that 
contracting officers and contractors are encouraged to use ADR 
procedures.
    We propose to revise the language in the existing section 833.215, 
Contract clause, and rename it ``Contract clauses'' as this would 
implement the FAR section with the same title. This would retain 
existing language to provide that the contracting officer shall use the 
clause at 52.233-1, Disputes, with its Alternate I (see 833.213). This 
is necessary to reconcile the FAR requirement with recent updates to 
the dispute statutes.

VAAR Part 852--Solicitation Provisions and Contract Clauses

    We propose to revise the VAAR title for subpart 852.2 to ``Text of 
Provisions and Clauses'' in lieu of ``Texts of Provisions and Clauses'' 
to comport with the FAR title to which the VAAR's subpart corresponds.
    We propose to revise two provisions--852.233-70, Protest Content/
Alternative Dispute Resolution, and 852.233-71, Alternate Protest 
Procedure. In the current version of the VAAR both of these provisions 
are prescribed in section 833.106. We propose to change the 
prescription for each provision: 852.233-70 would now be prescribed in 
833.106-70(a) and 852.233-71 would now be prescribed in 833.106-70(b). 
The language in 852.233-71 would be revised to reorganize the existing 
single and unlettered paragraph by adding paragraphs (a) and (b). 
Paragraph (a) would provide the address where to file an alternate 
protest to other than the contracting officer and would provide a new 
VA email address to address the protest to the Risk Management and 
Compliance Service: [email protected]. At paragraph (b), the provision 
would state that a protest will not be

[[Page 14829]]

considered if the interested party has a protest on the same or similar 
issue(s) pending with the contracting officer.

VAAR Part 871--Loan Guaranty and Vocational Rehabilitation and 
Employment Programs

    We propose to revise the authority citations for Part 871 to add 38 
U.S.C. Chapter 31, which is the basic statute for providing training 
and rehabilitation for veterans with service-connected disabilities.
    In section 871.201-1, Requirements for the use of contracts, we 
propose to revise the introductory paragraph to clarify the language 
before the two conditions in paragraphs (a) and (b). We propose to 
revise paragraph (b), Special services or special courses, to comport 
with the revision of that term in section 831.7001-2.

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 is 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 not to be a significant regulatory action under E.O. 12866 
because it does not 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'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 an E.O. 13771 regulatory action because this 
proposed rule is not significant under E.O. 12866.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

Regulatory Flexibility Act

    This proposed 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 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 is merely adding existing and current 
regulatory requirements to the VAAR and removing any guidance that is 
applicable only to VA's internal operation processes or procedures. VA 
estimates no cost impact to individual business would result from these 
rule updates. This rulemaking does not change VA's policy regarding 
small businesses, does not have an economic impact to individual 
businesses, and there are no increased or decreased costs to small 
business entities. On this basis, the proposed rule would not have an 
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 will have no such effect 
on State, local, and tribal Governments or on the private sector.

List of Subjects

48 CFR part 831

    Accounting, Government procurement.

48 CFR Part 833

    Administrative practice and procedure, Government procurement.

48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 871

    Government procurement, Loan programs--social programs, Loan 
programs--Veterans, Reporting and recordkeeping requirements, 
Vocational rehabilitation.

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 August 25, 2017, for publication.


[[Page 14830]]


    Dated: February 22, 2018.
Consuela Benjamin,
Office of 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, chapter 8, parts 831, 833, 852 and 871 as follows:

PART 831--CONTRACT COST PRINCIPLES AND PROCEDURES

0
1. The authority citation for part 831 is revised to read as follows:

    Authority: 38 U.S.C. Chapter 31; 40 U.S.C. 121(c); 41 U.S.C. 
1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

PART 831--CONTRACT COST PRINCIPLES AND PROCEDURES

0
2. Revise subpart 831.70 to read as follows

Subpart 831.70--Contract Cost Principles and Procedures for 
Veterans Services Under 38 U.S.C. Chapter 31

Sec.
831.7000 Scope of subpart.
831.7000-1 Definitions.
831.7001 Allowable costs and negotiated prices under vocational 
rehabilitation and education contracts.
831.7001-1 Tuition.
831.7001-2 Special services or courses.
831.7001-3 Books, supplies, and equipment required to be personally 
owned.
831.7001-4 Medical services and hospital care.
831.7001-5 Consumable instructional supplies.
831.7001-6 Reimbursement for other supplies and services.


831.7000  Scope of subpart.

    This subpart contains general cost principles and procedures for 
the determination and allowance of costs or negotiation of prices under 
cost reimbursement or fixed-price contracts for providing vocational 
rehabilitation, education, and training to eligible Veterans under 38 
U.S.C. chapter 31, (referred to as a ``Chapter 31 program''). This 
subpart applies to contracts with educational institutions as well as 
to contracts with commercial and non-profit organizations.


831.7000-1  Definitions.

    Chapter 31 refers to the VR&E program that provides training and 
rehabilitation for Veterans with service-connected disabilities under 
chapter 31 of Title 38 U.S.C.
    Consumable instructional supplies means those supplies which are 
required for instruction in the classroom, shop school, and laboratory 
of an educational institution, which are consumed, destroyed, or 
expended by either the student, instructor or both in the process of 
use, and which have to be replaced at frequent intervals without adding 
to the value of the institution's physical property.
    Similarly circumstanced non-Veteran student means a student in 
equal or like situations as a person who is neither receiving 
educational or training benefits under chapter 31 or chapter 33 of 
Title 38 U.S.C. or the savings provisions of section 12(a) of Public 
Law 85-857, nor having all or any part of tuition fees or other charges 
paid by the educational institution.
    Work adjustment training means a specialized structure program that 
is facility or community based and designated to assist an individual 
in acquiring or improving work skills, work behaviors, work tolerance, 
interpersonal skills or work ethics.


831.7001  Allowable costs and negotiated prices under vocational 
rehabilitation and education contracts.


831.7001-1  Tuition.

    (a) Tuition and enrollment fees shall be paid at the institution's 
customary amount that--
    (1) Does not exceed the tuition charged to similarly circumstanced 
non-Veteran students; and
    (2) Is equal to the lowest price offered or published for the 
entire course, semester, quarter, or term.
    (b) The cost of the Veteran student's tuition and fees under a 
contract shall be offset by--
    (1) Any amount of tuition and fees that are waived by a State or 
other government authority; or
    (2) Any amounts the Veteran student receives from a fellowship, 
scholarship, grant-in-aid, assistantship, or similar award that limits 
its use to payment of tuition, fees, or other charges that VA normally 
pays as part of a chapter 31 program.
    (c) VA will not pay tuition or incidental fees to institutions or 
establishments furnishing apprentice or on-the-job training. VA may 
elect to pay charges or expenses that fall into either of the following 
categories:
    (1) Charges customarily made by a nonprofit workshop or similar 
establishment for providing work adjustment training to similarly 
circumstanced non-Veteran students even if the trainee receives an 
incentive wage as part of the training.
    (2) Training expenses incurred by an employer who provides on-the-
job training following rehabilitation to the point of employability 
when VA determines that the additional training is necessary.


831.7001-2  Special services or courses.

    Special services or courses are those services or courses that VA 
requests that are supplementary to those the institution customarily 
provides for similarly circumstanced non-Veteran students, and that the 
contracting officer considers them to be necessary for the 
rehabilitation of the trainee. VA will negotiate the costs/prices of 
special services or courses prior to ordering them.


831.7001-3  Books, supplies, and equipment required to be personally 
owned.

    (a) Reimbursement for books, supplies, and equipment. VA will 
provide reimbursement for books, equipment, or other supplies of the 
same variety, quality, or amount that all students taking the same 
course or courses are customarily required to own personally. VA will 
provide reimbursement for items that the institution does not 
specifically require for pursuit of the course if VA determines that 
such items are needed because of the demands of the course, general 
possession by other students, and the disadvantage imposed on a Veteran 
student by not having the item.
    (b) Partial payment agreements. Agreements in which VA would pay 
the institution a partial payment with the remainder to be paid by the 
Veteran student are not authorized.
    (c) Thesis expenses. The institution's costs in connection with a 
Veteran student's thesis are considered supplies and are therefore 
authorized for reimbursement if the Veteran student's committee 
chairman, major professor, department head, or appropriate dean 
certifies that the thesis is a course requirement and the expenses are 
required to complete the thesis. These expenses may include research 
expenses, typing, printing, microfilming, or otherwise reproducing the 
required number of copies.
    (d) Reimbursement for books, supplies, and equipment. Books, 
supplies, and equipment that the institution purchases specifically for 
trainees will be reimbursed at the net cost to the institution. The VA 
shall reimburse the institution for books, supplies, and equipment when 
these items are--
    (1) Issued to students from its own bookstore or supply store;
    (2) Issued to students from retail stores or other non-
institutionally owned establishments not owned by the contractor/
institution but arranged or

[[Page 14831]]

designated by them in cooperation with VA; or
    (3) Rented or leased books, supplies and equipment and are issued 
to students for survey classes when it is customary that students are 
not required to own the books.
    (e) Handling charges. VA shall reimburse the institution for any 
handling charges not to exceed more than 10 percent of the allowable 
charge for the books, equipment or other supplies unless--
    (1) The tuition covers the charges for supplies or rentals or a 
stipulated fee is assessed to all students; or
    (2) The handling charge is for Government-owned books that the 
contractor procures from the Library of Congress.


831.7001-4  Medical services and hospital care.

    (a) VA may pay the customary student health fee when payment of the 
fee is required for similarly circumstanced non-Veteran students. If 
payment of the fee is not required for similarly circumstanced non-
Veteran students, payment may be made if VA determines that payment is 
in the best interest of the Veteran student and the Government.
    (b) When the customary Veteran student's health fee does not cover 
medical services or hospital care, but these medical services are 
available in an institution-operated facility or with doctors and 
hospitals in the immediate area through a prior arrangement, VA may 
provide reimbursement for these services in a contract for the services 
if--
    (1) An arrangement is necessary to provide timely medical services 
for Veteran-students attending the facility under provisions of chapter 
31; and
    (2) The general rates established for medical services do not 
exceed the rates established by VA.
    (c) VA may reimburse a rehabilitation facility for incidental 
medical services provided during a Veteran student's program at the 
facility.


831.7001-5  Consumable instructional supplies.

    (a) VA will provide reimbursement for consumable instructional 
supplies that the institution requires for the instruction of all 
students, Veteran or non-Veteran students, pursuing the same or 
comparable course or courses when--
    (1) The supplies are entirely consumed in the fabrication of a 
required project; or
    (2) The supplies are not consumed but are of such a nature that 
they cannot be salvaged from the end product for reuse by disassembling 
or dismantling the end product.
    (b) VA will not provide reimbursement for consumable instructional 
supplies if any of the following apply:
    (1) The supplies can be salvaged for reuse.
    (2) The supplies are used in a project that the student has elected 
as an alternate class project to produce an end product of greater 
value than that normally required to learn the skills of the 
occupation, and the end product will become the Veteran's property upon 
completion.
    (3) The supplies are used in a project that the institution has 
selected to provide the student with a more elaborate end product than 
is required to provide adequate instruction as an inducement to the 
Veteran student to elect a particular course of study.
    (4) The sale value of the end product is equal to or greater than 
the cost of supplies plus assembly, and the supplies have not been 
reasonably used so that the supplies are not readily salvaged from the 
end product to be reused for instructional purposes.
    (5) The end product is of permanent value and retained by the 
institution.
    (6) A third party loans the articles or equipment for repair or 
improvement and the third party would otherwise pay a commercial price 
for the repair or improvement.
    (7) The number of projects resulting in end products exceeds the 
number normally required to teach the recognized job operations and 
processes of the occupation stipulated in the approved course of study.
    (8) The cost of supplies is included in the charge for tuition or 
as a fee designated for such purpose.


831.7001-6  Reimbursement for other supplies and services.

    VA will provide reimbursement for other services and assistance 
that may be authorized under applicable provisions of 38 U.S.C. chapter 
31 regulations, including, but not limited to, employment and self-
employment services, initial and extended evaluation services, and 
independent living services.
0
3. Revise part 833 to read as follows

PART 833--PROTESTS, DISPUTES, AND APPEALS

Sec.
Subpart 833.1--Protests
833.103-70 Protests to VA.
833.106-70 Solicitation provisions.
Subpart 833.2--Disputes and Appeals
833.209 Suspected fraudulent claims.
833.211 Contracting officer's decision.
833.213 Obligation to continue performance.
833.214 Alternative dispute resolution (ADR).
833.215 Contract clauses.

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 
1702; 41 U.S.C. chapter 71; and 48 CFR 1.301-1.304.

Subpart 833.1--Protests


833.103-70  Protests to VA.

    (a) Pursuant to FAR 33.103(d)(4), an interested party may protest 
to the contracting officer or, as an alternative, may request an 
independent review at a level above the contracting officer as provided 
in this section. An interested party may also appeal to VA a 
contracting officer's decision on a protest.
    (1) Protests to the contracting officer. Protests to the 
contracting officer shall be in writing and shall be addressed where 
the offer/bid is to be submitted or as indicated in the solicitation.
    (2) Independent review or appeal of a contracting officer 
decision--protest filed directly with the agency.
    (i) Protests requesting an independent review a level above the 
contracting officer, and appeals within VA above the level of the 
contracting officer, shall be addressed to: Executive Director, Office 
of Acquisition and Logistics, Risk Management and Compliance Service 
(RMCS), Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC 20420.
    (ii) The protest and pertinent documents shall be mailed to the 
address in paragraph (a)(2)(i) of this section or sent electronically 
to: [email protected].
    (3) An independent review of a protest filed pursuant to paragraph 
(a)(2) of this section will not be considered if the interested party 
has a protest on the same or similar issues pending with the 
contracting officer.
    (b) The following types of protests may be dismissed by VA without 
consideration of the merits or may be forwarded to another agency for 
appropriate action:
    (1) Contract administration. Disputes between a contractor and VA 
are resolved under the disputes clause see the Dispute statute, 41 
U.S.C. chapter 71.
    (2) Small business size standards and standard industrial 
classification. Challenges of established size standards, ownership and 
control or the size status of particular firm, and challenges of the 
selected standard industrial

[[Page 14832]]

classification are for review solely by the Small Business 
Administration (SBA) (see 15 U.S.C. 637(b)(6); 13 CFR 121.1002). 
Pursuant to Public Law 114-328, SBA will also hear cases related to 
size, status, and ownership and control challenges under the VA 
Veterans First Contracting Program (see 38 U.S.C. 8127(f)(8).)
    (3) Small business certificate of competency program. A protest 
made under section 8(b)(7) of the Small Business Act, or in regard to 
any issuance of a certificate of competency or refusal to issue a 
certificate under that section, is not reviewed in accordance with bid 
protest procedures unless there is a showing of possible fraud or bad 
faith on the part of Government officials.
    (4) Protests under section 8(a) of the Small Business Act. The 
decision to place or not to place a procurement under the 8(a) program 
is not subject to review unless there is a showing of possible fraud or 
bad faith on the part of Government officials or that regulations may 
have been violated (see 15 U.S.C. 637(a)).
    (5) Affirmative determination of responsibility by the contracting 
officer. An affirmative determination of responsibility will not be 
reviewed unless there is a showing that such determination was made 
fraudulently or in bad faith or that definitive responsibility criteria 
in the solicitation were not met.
    (6) Contracts for materials, supplies, articles, and equipment 
exceeding $15,000. Challenges concerning the legal status of a firm as 
a regular dealer or manufacturer within the meaning of 41 U.S.C. 
chapter 65 are determined solely by the procuring agency, the SBA (if a 
small business is involved), and the Secretary of Labor (see FAR 
subpart 22.6).
    (7) Subcontractor protests. The contracting agency will not 
consider subcontractor protests except where VA determines it is in the 
interest of the Government.
    (8) Judicial proceedings. The contracting agency will not consider 
protests where the matter involved is the subject of litigation before 
a court of competent jurisdiction.
    (c) Alternative dispute resolution. Bidders/offerors and VA 
contracting officers are encouraged to use alternative dispute 
resolution (ADR) procedures to resolve protests at any stage in the 
protest process. If ADR is used, VA will not furnish any documentation 
in an ADR proceeding beyond what is allowed by the FAR.
    (d) Appeal of contracting officer's protest decision--agency 
appellate review. An interested party may request an independent review 
of a contracting officer's protest decision by filing an appeal in 
accordance with paragraph (a)(2) of this section.
    (1) To be considered timely, the appeal must be received by the 
cognizant official in paragraph (a)(2) of this section within 10 
calendar days of the date the interested party knew, or should have 
known, whichever is earlier, of the basis for the appeal.
    (2) Appeals do not extend GAO's timeliness requirements for 
protests to GAO. By filing an appeal as provided in this paragraph, an 
interested party may waive its rights to further protest to the 
Comptroller General at a later date.
    (3) Agency responses to appeals submitted to the agency shall be 
reviewed and concurred in by the Office of the General Counsel (OGC).


833.106-70  Solicitation provisions.

    (a) The contracting officer shall insert the provision at 852.233-
70, Protest Content/Alternative Dispute Resolution, in solicitations 
expected to exceed the simplified acquisition threshold, including 
those for commercial items.
    (b) The contracting officer shall insert the provision at 852.233-
71, Alternate Protest Procedure, in solicitations expected to exceed 
the simplified acquisition threshold, including those for commercial 
items.

Subpart 833.2--Disputes and Appeals


833.209  Suspected fraudulent claims.

    The contracting officer must refer matters relating to suspected 
fraudulent claims to the Office of Inspector General for investigation 
and potential referral to the Department of Justice. The contracting 
officer may not initiate any collection, recovery, or other settlement 
action while the matter is in the hands of the Department of Justice 
without first obtaining the concurrence of the U.S. Attorney concerned, 
through the Office of the Inspector General.


833.211  Contracting officer's decision.

    (a) For purposes of appealing a VA contracting officer's final 
decision, the Board of Contract Appeals referenced in FAR 33.211(a) and 
elsewhere in this subpart is the Civilian Board of Contract Appeals 
(CBCA), 1800 F Street NW, Washington, DC 20405.


833.213  Obligation to continue performance.

    (a) As provided in FAR 33.213, contracting officers shall use FAR 
clause 52.233-1, Disputes, with its Alternate I. FAR clause 52.233-1 
requires the contractor to continue performance in accordance with the 
contracting officer's decision in the event of a claim arising under a 
contract. Alternate I expands this authority, adding a requirement for 
the contractor to continue performance in the event of a claim relating 
to the contract.
    (b) In the event of a dispute not arising under, but relating to, 
the contract, as permitted by FAR 33.213(b), if the contracting officer 
directs continued performance and considers providing financing for 
such continued performance, the contracting officer shall contact OGC 
for advice prior to requesting higher level approval for or authorizing 
such financing. The contracting officer shall document in the contract 
file any required approvals and how the Government's interest was 
properly secured with respect to such financing (see FAR 32.202-4 and 
VAAR subpart 832.2).


833.214  Alternative dispute resolution (ADR).

    Contracting officers and contractors are encouraged to use 
alternative dispute resolution (ADR) procedures. Guidance on ADR may be 
obtained at the U.S. Civilian Board of Contract Appeals website: https://www.cbca.gsa.gov.


833.215  Contract clauses.

    The contracting officer shall use the clause at 52.233-1, Disputes, 
with its Alternate I (see 833.213).

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
 4. The authority citation for part 852 continues 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); 41 U.S.C. 1303; 41 U.S.C 1702; and 48 CFR 
1.301-1.304.

Subpart 852.2--Texts of Provisions and Clauses

0
5. The heading of subpart 852.2 is revised to read ``Text of Provisions 
and Clauses.''
0
6. Section 852.233-70 is revised to read as follows:


852.233-70  Protest Content/Alternative Dispute Resolution.

    As prescribed in 833.106-70(a), insert the following provision:

Protest Content/Alternative Dispute Resolution (Date)

    (a) Any protest filed by an interested party shall--
    (1) Include the name, address, fax number, email and telephone 
number of the protester;
    (2) Identify the solicitation and/or contract number;

[[Page 14833]]

    (3) Include an original signed by the protester or the 
protester's representative and at least one copy;
    (4) Set forth a detailed statement of the legal and factual 
grounds of the protest, including a description of resulting 
prejudice to the protester, and provide copies of relevant 
documents;
    (5) Specifically request a ruling of the individual upon whom 
the protest is served;
    (6) State the form of relief requested; and
    (7) Provide all information establishing the timeliness of the 
protest.
    (b) Failure to comply with the above may result in dismissal of 
the protest without further consideration.
    (c) Bidders/offerors and contracting officers are encouraged to 
use alternative dispute resolution (ADR) procedures to resolve 
protests at any stage in the protest process. If ADR is used, the 
Department of Veterans Affairs will not furnish any documentation in 
an ADR proceeding beyond what is allowed by the Federal Acquisition 
Regulation.
(End of Provision)
0
7. Section 852.233-71 is revised to read as follows:


852.233-71  Alternate Protest Procedure.

    As prescribed in 833.106-70(b), insert the following provision:

Alternate Protest Procedure (Date)

    (a) As an alternative to filing a protest with the contracting 
officer, an interested party may file a protest by mail or 
electronically with: Executive Director, Office of Acquisition and 
Logistics, Risk Management and Compliance Service (003A2C), 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, 
DC 20420, Email: [email protected].
    (b) The protest will not be considered if the interested party 
has a protest on the same or similar issue(s) pending with the 
contracting officer.
(End of Provision)

PART 871--LOAN GUARANTY AND VOCATIONAL REHABILITATION AND 
EMPLOYMENT PROGRAMS

0
8. The authority citation for part 871 is revised to read as follows:

    Authority: 38 U.S.C. Chapter 31; 40 U.S.C. 121(c); 41 U.S.C. 
1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

Subpart 871.2--Vocational Rehabilitation and Employment Service

0
9. Amend section 871.201-1 by revising the introductory text and 
paragraph (b) to read as follows:


871.201-1  Requirements for the use of contracts.

    The costs for tuition, fees, books, supplies, and other expenses 
are allowable under a contract with an institution, training 
establishment, or employer for the training and rehabilitation of 
eligible Veterans under 38 U.S.C. chapter 31, provided the services 
meet the conditions in the following definitions:
* * * * *
    (b) Special services or special courses. Special services or 
courses are those services or courses that VA requests that are 
supplementary to those the institution customarily provides for 
similarly circumstanced non-Veteran students and that the contracting 
officer considers to be necessary for the rehabilitation of the 
trainee.

[FR Doc. 2018-04003 Filed 4-5-18; 8:45 am]
 BILLING CODE 8320-01-P