Revise and Streamline VA Acquisition Regulation-Parts 844 and 845, 14833-14836 [2018-04004]
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Federal Register / Vol. 83, No. 67 / Friday, April 6, 2018 / Proposed Rules
(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)
■ 7. Section 852.233–71 is revised to
read as follows:
852.233–71
Alternate Protest Procedure.
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:
EDProtests@va.gov.
(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
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.
9. Amend section 871.201–1 by
revising the introductory text and
paragraph (b) to read as follows:
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■
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
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[FR Doc. 2018–04003 Filed 4–5–18; 8:45 am]
BILLING CODE 8320–01–P
DEPARTMENT OF VETERANS
AFFAIRS
48 CFR Parts 844 and 845
RIN 2900–AQ05
As prescribed in 833.106–70(b), insert
the following provision:
Subpart 871.2—Vocational
Rehabilitation and Employment
Service
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.
Revise and Streamline VA Acquisition
Regulation—Parts 844 and 845
Department of Veterans Affairs.
ACTION: Proposed rule.
AGENCY:
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 that has been
superseded by changes in the Federal
Acquisition Regulation (FAR), to
remove any procedural guidance that is
internal to the VA into the VA
Acquisition Manual (VAAM), and to
incorporate new 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’ll publish them
in the Federal Register. VA will
combine related topics, as appropriate.
In particular, this rulemaking revises
VAAR Parts 844—Subcontracting
Policies and Procedures, and Part 845—
Government Property.
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 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.
SUMMARY:
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Comments should indicate that they are
submitted in response to ‘‘RIN 2900–
AQ05—Revise and Streamline VA
Acquisition Regulation Parts 844 and
845).’’ 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:
Rafael 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
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
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forth at Title 48 CFR, chapter 8, parts
801 to 873.
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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. Therefore, the VAAM will not
be finalized until corresponding VAAR
parts are finalized, and is not yet
available on line.
VAAR Part 844—Subcontracting
Policies and Procedures
We propose to add part 844 to the
VAAR. The authorities to be cited are:
40 U.S.C. 121(c) and 41 U.S.C. 1702,
which address the overall direction of
procurement policy, acquisition
planning and management
responsibilities of VA’s Chief
Acquisition Officer; and 48 CFR 1.301–
1.304, which is the delegation of
authority for agencies to issue
regulations that implement and
supplement the FAR.
This new part 844, Subcontracting
Policies and Procedures, implements
FAR part 44 by making public VA’s
additional requirements for providing
its consent to subcontract, items that
should be evaluated as a part of a
Contractor’s Purchasing Systems Review
(CPSR), and establishing that
contractors should determine whether
subcontract items meet the FAR
definition of a commercial item. Under
this new part, we propose to add
subpart 844.2, Consent to Subcontracts,
and section 844.202–2, Considerations.
We propose to add one paragraph to this
section, (a)(14), which would require,
before a contracting officer consents to
a subcontract where other than the
lowest price is the basis for selection,
that the contractor has substantiated the
selection as being fair, reasonable, and
representing the best value to the
Government.
We propose to add subpart 844.3,
Contractor’s Purchasing Systems
Reviews, and section 844.303, Extent of
review. We included three paragraphs to
this section, paragraphs (f), (l), and (m).
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The paragraphs included in this section
would require that contractor
purchasing system reviews focus special
attention, respectively, on:
Policies and procedures pertaining to
the use of VA-verified Service-Disabled
Veteran-Owned Small Businesses
(SDVOSBs) and Veteran-Owned Small
Businesses (VOSBs) and utilization in
accordance with subpart 819.70 and the
Veterans First Contracting Program;
Documentation of commercial item
determinations to ensure compliance
with the definition of ‘‘commercial
item’’ in FAR 2.101; and
For acquisitions involving electronic
parts, whether the contractor has
implemented a counterfeit electronic
part detection and avoidance system to
ensure that counterfeit electronic parts
do not enter the supply chain.
We propose to add subpart 844.4,
Subcontracts for Commercial Items and
Commercial Components, and section
844.402, Policy requirements. Under
section 844.402, we add paragraph
‘‘(a)(3)’’ which would require that
contractors determine whether a
particular subcontract item meets the
FAR definition of a commercial item.
This requirement does not affect the
contracting officer’s responsibilities or
determinations made under FAR
15.403–1(c)(3).
VAAR Part 845—Government Property
We propose to add subpart 845.4,
Title to Government Property. The
authorities to be cited are: 40 U.S.C.
121(c) which provides that the
Administrator of the General Services
Administration may prescribe
regulations to carry out responsibilities
under the Federal Property and
Administrative Services subtitle of Title
40, and, additionally, that the head of
each executive agency shall issue orders
and directives that the agency head
considers necessary to carry out the
prescribed regulations issued by the
Administrator; and 41 U.S.C. 1702,
which address the overall direction of
procurement policy, acquisition
planning and management
responsibilities of VA’s Chief
Acquisition Officer; and 48 CFR 1.301–
1.304, which is the delegation of
authority for agencies to issue
regulations that implement and
supplement the FAR.
We propose to add section 845.402,
Title to contractor-acquired property (no
text), and section, 845.402–70, Policy.
This implements and supplements the
FAR by addressing procedures for
contractors to document their
acquisition of property for use in the
service of VA contracts; to address the
transfer of title to the Government of
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contractor-acquired property; and to
outline the procedures for the use of
such property on a successor contract.
This new section proposes the
following:
Paragraph (a) would provide that, for
other than firm-fixed-price contracts,
contractor-acquired property items not
anticipated at time of contract award, or
not otherwise specified for delivery on
an existing line item, would be
delivered to the Government on a
contract line item. The value of that
item would be recorded at the original
purchase cost or best estimate.
Paragraph (b) would provide that,
upon delivery and acceptance by the
Government of contractor-acquired
property items, and when retained by
the contractor for continued use under
a successor contract, such items would
become Government-furnished property
(GFP). The items would be added to the
successor contract as GFP by contract
modification.
Paragraph (c) would provide that
individual contractor-acquired property
items would be recorded in the
contractor’s property management
system at the contractor’s original
purchase cost or best estimate.
Paragraph (d) would provide that all
other contractor inventory that is excess
to the needs of the contract would be
disposed of in accordance with FAR
subpart 45.6.
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.
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Regulatory Flexibility Act
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.
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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 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. 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 would
have no such effect on State, local, and
tribal Governments or on the private
sector.
List of Subjects
48 CFR Part 844
Government procurement, Reporting
and recordkeeping requirements.
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.
48 CFR Part 845
Paperwork Reduction Act
Signing Authority
This proposed rule contains no
provisions constituting a collection of
information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3521).
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
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Government procurement,
Government property, Reporting and
recordkeeping requirements.
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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 October 20,
2017, for publication.
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 by adding parts 844 and
845 to read as follows:
■
PART 844—SUBCONTRACTING
POLICIES AND PROCEDURES
Sec.
Subpart 844.2—Consent to Subcontracts
844.202–2
Considerations.
Subpart 844.3—Contractors’ Purchasing
Systems Reviews
844.303
Extent of review.
Subpart 844.4—Subcontracts for
Commercial Items and Commercial
Components
844.402
Policy requirements.
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702
and 48 CFR 1.301–1.304.
Subpart 844–2—Consent to
Subcontracts
844.202–2
Considerations.
(a)(14) Where other than lowest price
is the basis for subcontractor selection,
has the contractor adequately
substantiated the selection as being fair,
reasonable, and representing the best
value to the Government?
Subpart 844.3—Contractors’
Purchasing Systems Reviews
844.303
Extent of review.
(f) Policies and procedures pertaining
to the use of VA-verified ServiceDisabled Veteran-Owned Small
Businesses (SDVOSBs) and VeteranOwned Small Businesses (VOSBs) and
utilization in accordance with subpart
819.70 and the Veterans First
Contracting Program.
(l) Documentation of commercial item
determinations to ensure compliance
with the definition of ‘‘commercial
item’’ in FAR 2.101; and
(m) For acquisitions involving
electronic parts, that the contractor has
implemented a counterfeit electronic
part detection and avoidance system to
ensure that counterfeit electronic parts
do not enter the supply chain.
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Subpart 844.4—Subcontracts for
Commercial Items and Commercial
Components
DEPARTMENT OF THE INTERIOR
844.402
50 CFR Part 17
Fish and Wildlife Service
Policy requirements.
(a)(3) Determine whether a particular
subcontract item meets the definition of
a commercial item. This requirement
does not affect the contracting officer’s
responsibilities or determinations made
under FAR 15.403–1(c)(3).
PART 845—GOVERNMENT PROPERTY
Authority: 40 U.S.C. 121(c); 41 U.S.C.
1702 and 48 CFR 1.301–1.304.
Subpart 845.4—Title to Government
Property
845.402 Title to contractor-acquired
property.
Policy.
(a) For other than firm-fixed-price
contracts, contractor-acquired property
items not anticipated at time of contract
award, or not otherwise specified for
delivery on an existing line item, shall,
by means of a contract modification, be
specified for delivery to the Government
on an added contract line item. The
value of such contractor-acquired
property item shall be recorded at the
original purchase cost. Unless otherwise
noted by the contractor at the time of
delivery to the Government, the placedin-service date shall be the date of
acquisition or completed manufacture,
if fabricated.
(b) Following delivery and acceptance
by the Government of contractoracquired property items, if these items
are to be retained by the contractor for
continued use under a successor
contract, these items become
Government-furnished property (GFP).
The items shall be added to the
successor contract as GFP by contract
modification.
(c) Individual contractor-acquired
property items should be recorded in
the contractor’s property management
system at the contractor’s original
purchase cost.
(d) All other contractor inventory that
is excess to the needs of the contract
shall be disposed of in accordance with
FAR subpart 45.6.
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We, the U.S. Fish and
Wildlife Service (Service), propose a
rule under section 4(d) of the
Endangered Species Act for the
Louisiana pinesnake (Pituophis
ruthveni), a reptile from Louisiana and
Texas. This rule would provide
measures to protect the species.
DATES: We will accept comments
received or postmarked on or before
May 7, 2018. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m.
Eastern Time on the closing date. We
must receive requests for public
hearings, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by April 23, 2018.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R4–ES–2018–0010, which is
the docket number for this rulemaking.
Then, click on the Search button. On the
resulting page, in the Search panel on
the left side of the screen, under the
Document Type heading, click on the
Proposed Rules link to locate this
document. You may submit a comment
by clicking on ‘‘Comment Now!’’
(2) By hard copy: Submit by U.S. mail
or hand-delivery to: Public Comments
Processing, Attn: FWS–R4–ES–2018–
0010, U.S. Fish and Wildlife Service,
MS: BPHC, 5275 Leesburg Pike, Falls
Church, VA 22041–3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
FOR FURTHER INFORMATION CONTACT:
Joseph Ranson, Field Supervisor, U.S.
Fish and Wildlife Service, Louisiana
Ecological Services Office, 646
SUMMARY:
845.402 Title to contractor-acquired
property.
845.402–70 Policy.
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Endangered and Threatened Wildlife
and Plants; Section 4(d) Rule for
Louisiana Pinesnake
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
Subpart 845.4—Title to Government
Property
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AGENCY:
Sec.
845.402–70
[Docket No. FWS–R4–ES–2018–0010;
4500030113]
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Cajundome Blvd., Suite 400, Lafayette,
LA; telephone 337–291–3113. Persons
who use a telecommunications device
for the deaf (TDD) may call the Federal
Relay Service at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Previous Federal Actions
On October 6, 2016, the Service,
under the authority of the Endangered
Species Act, as amended (‘‘Act’’; 16
U.S.C. 1531 et seq.), published in the
Federal Register a proposed rule to add
the Louisiana pinesnake (Pituophis
ruthveni), a reptile from Louisiana and
Texas, as a threatened species to the List
of Endangered and Threatened Wildlife
(81 FR 69454). The List of Endangered
and Threatened Wildlife is in title 50 of
the Code of Federal Regulations in part
17 (50 CFR 17.11(h)). The proposed
listing rule had a 60-day comment
period, ending on December 5, 2016.
Then, on October 6, 2017, the Service
published in the Federal Register a
document that reopened the comment
period on the proposed rule and
announced that we were extending by 6
months the 1-year period for making a
final determination on the proposed
rule to list the Louisiana pinesnake as
a threatened species (82 FR 46748). In
accordance with section 4(b)(6)(A)(i)(III)
of the Act, this extension was based on
our finding that there was substantial
disagreement regarding available
information related to the interpretation
of the available survey data used to
determine the Louisiana pinesnake’s
status and trends. The second comment
period closed November 6, 2017. No
public hearing was requested or held in
response to publication of these
documents.
Elsewhere in this issue of the Federal
Register, we publish a final rule for the
2016 proposed listing rule for the
Louisiana pinesnake as a threatened
species. For a complete list of previous
Federal actions related to this species as
well as information on its taxonomy,
habitat, life history, historical and
current distribution, population
estimates and status, and a summary of
factors affecting the species, see that
proposed rule (81 FR 69454, October 6,
2016).
Background
The primary habitat feature that
contributes to the conservation of the
Louisiana pinesnake is open-canopy
forest situated on well-drained sandy
soils with an abundant herbaceous plant
community that provides forage for the
Baird’s pocket gopher (Geomys
breviceps), which is the snake’s primary
known source of food. In addition,
Baird’s pocket gopher burrows are the
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]]>Agencies
[Federal Register Volume 83, Number 67 (Friday, April 6, 2018)]
[Proposed Rules]
[Pages 14833-14836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04004]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 844 and 845
RIN 2900-AQ05
Revise and Streamline VA Acquisition Regulation--Parts 844 and
845
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 that has been superseded by changes in the
Federal Acquisition Regulation (FAR), to remove any procedural guidance
that is internal to the VA into the VA Acquisition Manual (VAAM), and
to incorporate new 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'll publish them in the
Federal Register. VA will combine related topics, as appropriate. In
particular, this rulemaking revises VAAR Parts 844--Subcontracting
Policies and Procedures, and Part 845--Government Property.
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-AQ05--Revise and Streamline VA Acquisition Regulation
Parts 844 and 845).'' 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: Rafael 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 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
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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. Therefore, the
VAAM will not be finalized until corresponding VAAR parts are
finalized, and is not yet available on line.
VAAR Part 844--Subcontracting Policies and Procedures
We propose to add part 844 to the VAAR. The authorities to be cited
are: 40 U.S.C. 121(c) and 41 U.S.C. 1702, which address the overall
direction of procurement policy, acquisition planning and management
responsibilities of VA's Chief Acquisition Officer; and 48 CFR 1.301-
1.304, which is the delegation of authority for agencies to issue
regulations that implement and supplement the FAR.
This new part 844, Subcontracting Policies and Procedures,
implements FAR part 44 by making public VA's additional requirements
for providing its consent to subcontract, items that should be
evaluated as a part of a Contractor's Purchasing Systems Review (CPSR),
and establishing that contractors should determine whether subcontract
items meet the FAR definition of a commercial item. Under this new
part, we propose to add subpart 844.2, Consent to Subcontracts, and
section 844.202-2, Considerations. We propose to add one paragraph to
this section, (a)(14), which would require, before a contracting
officer consents to a subcontract where other than the lowest price is
the basis for selection, that the contractor has substantiated the
selection as being fair, reasonable, and representing the best value to
the Government.
We propose to add subpart 844.3, Contractor's Purchasing Systems
Reviews, and section 844.303, Extent of review. We included three
paragraphs to this section, paragraphs (f), (l), and (m). The
paragraphs included in this section would require that contractor
purchasing system reviews focus special attention, respectively, on:
Policies and procedures pertaining to the use of VA-verified
Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) and Veteran-
Owned Small Businesses (VOSBs) and utilization in accordance with
subpart 819.70 and the Veterans First Contracting Program;
Documentation of commercial item determinations to ensure
compliance with the definition of ``commercial item'' in FAR 2.101; and
For acquisitions involving electronic parts, whether the contractor
has implemented a counterfeit electronic part detection and avoidance
system to ensure that counterfeit electronic parts do not enter the
supply chain.
We propose to add subpart 844.4, Subcontracts for Commercial Items
and Commercial Components, and section 844.402, Policy requirements.
Under section 844.402, we add paragraph ``(a)(3)'' which would require
that contractors determine whether a particular subcontract item meets
the FAR definition of a commercial item. This requirement does not
affect the contracting officer's responsibilities or determinations
made under FAR 15.403-1(c)(3).
VAAR Part 845--Government Property
We propose to add subpart 845.4, Title to Government Property. The
authorities to be cited are: 40 U.S.C. 121(c) which provides that the
Administrator of the General Services Administration may prescribe
regulations to carry out responsibilities under the Federal Property
and Administrative Services subtitle of Title 40, and, additionally,
that the head of each executive agency shall issue orders and
directives that the agency head considers necessary to carry out the
prescribed regulations issued by the Administrator; and 41 U.S.C. 1702,
which address the overall direction of procurement policy, acquisition
planning and management responsibilities of VA's Chief Acquisition
Officer; and 48 CFR 1.301-1.304, which is the delegation of authority
for agencies to issue regulations that implement and supplement the
FAR.
We propose to add section 845.402, Title to contractor-acquired
property (no text), and section, 845.402-70, Policy. This implements
and supplements the FAR by addressing procedures for contractors to
document their acquisition of property for use in the service of VA
contracts; to address the transfer of title to the Government of
contractor-acquired property; and to outline the procedures for the use
of such property on a successor contract. This new section proposes the
following:
Paragraph (a) would provide that, for other than firm-fixed-price
contracts, contractor-acquired property items not anticipated at time
of contract award, or not otherwise specified for delivery on an
existing line item, would be delivered to the Government on a contract
line item. The value of that item would be recorded at the original
purchase cost or best estimate.
Paragraph (b) would provide that, upon delivery and acceptance by
the Government of contractor-acquired property items, and when retained
by the contractor for continued use under a successor contract, such
items would become Government-furnished property (GFP). The items would
be added to the successor contract as GFP by contract modification.
Paragraph (c) would provide that individual contractor-acquired
property items would be recorded in the contractor's property
management system at the contractor's original purchase cost or best
estimate.
Paragraph (d) would provide that all other contractor inventory
that is excess to the needs of the contract would be disposed of in
accordance with FAR subpart 45.6.
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.
[[Page 14835]]
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.
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 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. 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 would have no such
effect on State, local, and tribal Governments or on the private
sector.
List of Subjects
48 CFR Part 844
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 845
Government procurement, Government property, 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 October 20, 2017, for publication.
Dated: February 22, 2018.
Consuela Benjamin,
Office of Regulation Policy & Management, Office of the Secretary,
Department of Veterans Affairs.
0
For the reasons set out in the preamble, VA proposes to amend 48 CFR,
chapter 8 by adding parts 844 and 845 to read as follows:
PART 844--SUBCONTRACTING POLICIES AND PROCEDURES
Sec.
Subpart 844.2--Consent to Subcontracts
844.202-2 Considerations.
Subpart 844.3--Contractors' Purchasing Systems Reviews
844.303 Extent of review.
Subpart 844.4--Subcontracts for Commercial Items and Commercial
Components
844.402 Policy requirements.
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702 and 48 CFR 1.301-
1.304.
Subpart 844-2--Consent to Subcontracts
844.202-2 Considerations.
(a)(14) Where other than lowest price is the basis for
subcontractor selection, has the contractor adequately substantiated
the selection as being fair, reasonable, and representing the best
value to the Government?
Subpart 844.3--Contractors' Purchasing Systems Reviews
844.303 Extent of review.
(f) Policies and procedures pertaining to the use of VA-verified
Service-Disabled Veteran-Owned Small Businesses (SDVOSBs) and Veteran-
Owned Small Businesses (VOSBs) and utilization in accordance with
subpart 819.70 and the Veterans First Contracting Program.
(l) Documentation of commercial item determinations to ensure
compliance with the definition of ``commercial item'' in FAR 2.101; and
(m) For acquisitions involving electronic parts, that the
contractor has implemented a counterfeit electronic part detection and
avoidance system to ensure that counterfeit electronic parts do not
enter the supply chain.
[[Page 14836]]
Subpart 844.4--Subcontracts for Commercial Items and Commercial
Components
844.402 Policy requirements.
(a)(3) Determine whether a particular subcontract item meets the
definition of a commercial item. This requirement does not affect the
contracting officer's responsibilities or determinations made under FAR
15.403-1(c)(3).
PART 845--GOVERNMENT PROPERTY
Sec.
Subpart 845.4--Title to Government Property
845.402 Title to contractor-acquired property.
845.402-70 Policy.
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702 and 48 CFR 1.301-
1.304.
Subpart 845.4--Title to Government Property
845.402 Title to contractor-acquired property.
845.402-70 Policy.
(a) For other than firm-fixed-price contracts, contractor-acquired
property items not anticipated at time of contract award, or not
otherwise specified for delivery on an existing line item, shall, by
means of a contract modification, be specified for delivery to the
Government on an added contract line item. The value of such
contractor-acquired property item shall be recorded at the original
purchase cost. Unless otherwise noted by the contractor at the time of
delivery to the Government, the placed-in-service date shall be the
date of acquisition or completed manufacture, if fabricated.
(b) Following delivery and acceptance by the Government of
contractor-acquired property items, if these items are to be retained
by the contractor for continued use under a successor contract, these
items become Government-furnished property (GFP). The items shall be
added to the successor contract as GFP by contract modification.
(c) Individual contractor-acquired property items should be
recorded in the contractor's property management system at the
contractor's original purchase cost.
(d) All other contractor inventory that is excess to the needs of
the contract shall be disposed of in accordance with FAR subpart 45.6.
[FR Doc. 2018-04004 Filed 4-5-18; 8:45 am]
BILLING CODE 8320-01-P
