VA Acquisition Regulation: Contract Cost Principles and Procedures; Protests, Disputes and Appeals, 46413-46418 [2018-18985]

Download as PDF 46413 Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Rules and Regulations TABLE 1—GENERAL SUPERFUND SECTION State Site name City/county Notes (a) * IN ..................................... * * * * * Broadway Street Corridor Groundwater Contamination .............. Anderson .................................. * * MS ................................... * * * * * Rockwell International Wheel & Trim .......................................... Grenada .................................... * * OH ................................... * * * * * Donnelsville Contaminated Aquifer ............................................. Donnelsville .............................. * * TN .................................... * * * * * Southside Chattanooga Lead ...................................................... Chattanooga ............................. * * TX .................................... * * * * * Delfasco Forge ............................................................................ Grand Prairie ............................ * * * * * * * * (a) A = Based on issuance of health advisory by Agency for Toxic Substances and Disease Registry (if scored, HRS score need not be greater than or equal to 28.50). * * * * at 202–219–2349, or by email at travelpolicy@gsa.gov. Please cite Notice of FTR Bulletin 18–08. SUPPLEMENTARY INFORMATION: Federal civilian employees of an agency as defined in FTR § 301–1.1, if authorized to travel via business-class air accommodations, must use the business-class city-pair fare (coded as ‘‘—CB’’) where awarded for the route(s) listed on the travel authorization. The Federal traveler must use this fare or have an authorized exception to mandatory use of a contract city-pair fare per the FTR. The information outlined in FTR Bulletin 18–08 will provide clarity and promote consistency across the Government. This bulletin is located at www.gsa.gov/ftr under the ‘‘FTR & Related Files’’ tab. * [FR Doc. 2018–19878 Filed 9–12–18; 8:45 am] BILLING CODE 6560–50–P GENERAL SERVICES ADMINISTRATION 41 CFR Part 301–1 [Notice–MA–2018–08; Docket No. 2018– 0002, Sequence No. 20] Federal Travel Regulation: Contract City-Pair Business-Class Air Accommodations Office of Government-wide Policy (OGP), General Services Administration (GSA). ACTION: Notification of Federal Travel Regulation (FTR) Bulletin 18–08, Contract City-Pair Business-Class Air Accommodations. AGENCY: GSA is notifying agencies that Federal civilian employees of an agency as defined in its regulations, if authorized to travel via business-class air accommodations, must use the business-class city-pair fare (coded as ‘‘—CB’’) where awarded for the route(s) listed on the travel authorization. The information outlined in an FTR bulletin will provide clarity and promote consistency across the Government. DATES: FTR Bulletin 18–08 is available September 13, 2018. ADDRESSES: The bulletin is located at www.gsa.gov/ftr under the ‘‘FTR & Related Files’’ tab. FOR FURTHER INFORMATION CONTACT: For clarification of content, please contact Mr. Cy Greenidge, Office of Government-wide Policy, Office of Asset and Transportation Management, daltland on DSKBBV9HB2PROD with RULES SUMMARY: VerDate Sep<11>2014 17:40 Sep 12, 2018 Jkt 244001 Dated: September 6, 2018. Jessica Salmoiraghi, Associate Administrator, Office of Government-wide Policy. [FR Doc. 2018–19884 Filed 9–12–18; 8:45 am] BILLING CODE 6820–14–P DEPARTMENT OF VETERANS AFFAIRS 48 CFR Parts 831, 833, 852 and 871 RIN 2900–AQ02 VA Acquisition Regulation: Contract Cost Principles and Procedures; Protests, Disputes and Appeals Department of Veterans Affairs. Final rule. AGENCY: ACTION: The Department of Veterans Affairs (VA) is amending and updating its VA Acquisition Regulation (VAAR) in phased increments to revise or SUMMARY: PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove 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. In particular, this rulemaking revises VAAR concerning Contract Cost Principles and Procedures and Protests, Disputes and Appeals. DATES: This rule is effective on October 15, 2018. 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: On April 6, 2018, VA published a proposed rule in the Federal Register (83 FR 14826), which announced VA‘s intent to amend regulations for VAAR Case RIN 2900– AQ02 (Parts 831 and 833). In particular, this final rule revises VAAR part 831 to clarify the cost principles under the chapter 31 program and to apply those principles to both fixed-price and cost reimbursement contracts with educational institutions, as well as those with commercial and non-profit organizations. It revises VAAR part 833 to update information for where an E:\FR\FM\13SER1.SGM 13SER1 46414 Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Rules and Regulations interested party may protest to the contracting officer; provides for independent review a level above the contracting officer; and clarifies how interested parties may appeal a contracting officer’s decision on a protest. Other revisions include clarification of the types of protests that may be dismissed by VA without consideration of the merits, or may be forwarded to another agency for appropriate action; states that certain challenges of the legal status of a firm as a regular dealer or manufacturer is determined solely by the procuring agency, the Small Business Administration (SBA) if a small business is involved, and the Secretary of Labor; updates two clauses in part 852 related to protests; clarifies a contractor’s obligation to continue performance under a dispute; and, revises a definition of a term in VAAR part 871 to comport with the same term used in VAAR part 831. VA provided a 60-day comment period for the public to respond to the proposed rule. The comment period for the proposed rule ended on June 5, 2018 and VA received no comments. This document adopts as a final rule the proposed rule published in the Federal Register on April 6, 2018, with minor stylistic and grammatical edits. This final rule has Federal Register administrative format changes in the amendatory text which make no substantive text changes at the affected sections. 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 final rule will have no such effect on State, local, and tribal Governments or on the private sector. daltland on DSKBBV9HB2PROD with RULES Paperwork Reduction Act This final 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 final 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. This final rule will generally be small business neutral. The overall impact of the rule will be of benefit to small VerDate Sep<11>2014 17:40 Sep 12, 2018 Jkt 244001 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 businesses will 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 final rule will 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. 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 http:// 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 http:// www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 Through Fiscal Year to Date. This final rule is not subject to the requirements of E.O. 13771 because this final rule is expected to result in no more than de minimis costs. 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 48 CFR Part 833 PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 List of Subjects 48 CFR Part 831 Accounting, Government procurement. 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 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. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on August 24, 2018, for publication. Dated: August 28, 2018. Consuela Benjamin, Regulations Development Coordinator, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. For the reasons set out in the preamble, VA amends 48 CFR parts 831, 833, 852 and 871 as follows: 1. Part 831 is revised to read as follows: ■ E:\FR\FM\13SER1.SGM 13SER1 Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Rules and Regulations PART 831—CONTRACT COST PRINCIPLES AND PROCEDURES Subpart 831.70—Contract Cost Principles and Procedures for Veterans Services 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. 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 831.70—Contract Cost Principles and Procedures for Veterans 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 nonprofit organizations. daltland on DSKBBV9HB2PROD with RULES 831.7000–1 Definitions. Chapter 31 refers to the vocational rehabilitation and employment (VR&E) program that provides training and rehabilitation for Veterans with serviceconnected 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 VerDate Sep<11>2014 17:40 Sep 12, 2018 Jkt 244001 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 nonVeteran 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. PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 46415 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 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 E:\FR\FM\13SER1.SGM 13SER1 46416 Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Rules and Regulations (2) The handling charge is for Government-owned books that the contractor procures from the Library of Congress. 831.7001–4 care. Medical services and hospital (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. daltland on DSKBBV9HB2PROD with RULES 831.7001–5 supplies. Consumable instructional (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. VerDate Sep<11>2014 17:40 Sep 12, 2018 Jkt 244001 (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. ■ 2. Part 833 is revised 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) Agency protests. Pursuant to FAR 33.103(d)(4), an interested party may PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 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: EDProtests@va.gov. (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) Agency actions on specific types of protests. 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 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 E:\FR\FM\13SER1.SGM 13SER1 daltland on DSKBBV9HB2PROD with RULES Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Rules and Regulations 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 the Government Accountability Office’s (GAO) timeliness requirements for protests to GAO. By filing an appeal as VerDate Sep<11>2014 17:40 Sep 12, 2018 Jkt 244001 46417 provided in this paragraph (d), 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). 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). 833.106–70 833.214 (ADR). 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. Alternative dispute resolution 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: http:// www.cbca.gsa.gov. 833.215 Contract clauses. The contracting officer shall use the clause at 52.233–1, Disputes, or with its Alternate I (see 833.213). PART 852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 3. 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. 4. The heading of subpart 852.2 is revised to read as follows: ■ Subpart 852.2—Text of Provisions and Clauses (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. PROTEST CONTENT/ALTERNATIVE DISPUTE RESOLUTION (SEP 2018) (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; (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. (a) As provided in FAR 33.213, contracting officers shall use FAR clause 52.233–1, Disputes, or 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 PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 5. 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: E:\FR\FM\13SER1.SGM 13SER1 46418 Federal Register / Vol. 83, No. 178 / Thursday, September 13, 2018 / Rules and Regulations (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. considers to be necessary for the rehabilitation of the trainee. [FR Doc. 2018–18985 Filed 9–12–18; 8:45 am] BILLING CODE 8320–01–P ENVIRONMENTAL PROTECTION AGENCY (End of provision) ■ 6. Section 852.233–71 is revised to read as follows: 852.233–71 48 CFR Parts 1506 and 1552 [EPA–HQ–OARM–2017–0281; FRL–9974– 44–OARM] ALTERNATE PROTEST PROCEDURE (SEP 2018) (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 or 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 7. 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 8. Amend section 871.201–1 by revising the introductory text and paragraph (b) to read as follows: ■ daltland on DSKBBV9HB2PROD with RULES 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 VerDate Sep<11>2014 FOR FURTHER INFORMATION CONTACT: Alternate Protest Procedure. As prescribed in 833.106–70(b), insert the following provision: 20:53 Sep 12, 2018 Jkt 244001 make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/ commenting-epa-dockets. Acquisition Regulation: Update to Clauses Pertaining to Release of Contractor Confidential Business Information, Submission of Invoices, and the ‘‘Authorized or Required by Statute’’ Exception for Other Than Full and Open Competition Environmental Protection Agency (EPA). ACTION: Direct final rule. AGENCY: The Environmental Protection Agency (EPA) is taking direct final action to amend the EPA Acquisition Regulation (EPAAR). The clause pertaining to ‘‘Release of Contractor Confidential Business’’ is updated to incorporate the existing class deviation and make a minor addition. The ‘‘Submission of Invoices’’ clause is revised to incorporate the existing class deviation and updated with minor administrative edits. The clause ‘‘Authorized or Required by Statute’’ is clarified regarding the applicability of written justification requirements for the exception for other than full and open competition. DATES: This final rule is effective on December 12, 2018 without further notice, unless EPA receives adverse comment by October 15, 2018. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– OARM–2017–0281, at https:// www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to SUMMARY: PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 Holly Hubbell, Policy, Training, and Oversight Division, Acquisition Policy and Training Service Center (3802R), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202–564– 1091; email address: hubbell.holly@ epa.gov. SUPPLEMENTARY INFORMATION: Executive Summary This direct final rule makes changes to the EPAAR, Federal Acquisition Regulation (FAR), 48 CFR parts 1506 and 1552. This rule includes the following content changes: (1) Under EPAAR § 1506.302–5(b)(1), adds clarifying language that the Contracting Officer need not provide any written justification under FAR 8.405–6 or 13.501 for use of other than full and open competition when acquiring expert services under the authority of section 109(e) of the Superfund Amendments and Reauthorization Act of 1986 (SARA); (2) revises EPAAR § 1552.232–70 to add information on circumstances that may require obtaining subcontractor costs, makes minor administrative changes, and incorporates invoice preparation instructions; and (3) revises EPAAR § 1552.235–79 to expand the possible circumstances where the EPA may release the Contractor’s CBI. II. General Information A. Why is EPA using a direct final rule? EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. Any parties interested in commenting must do so at this time. B. Does this action apply to me? EPAAR §§ 1552.232–70 and 1552.235–79 apply to contractors who hold a cost-reimbursable contract with EPA. EPAAR § 1506.302–5 applies to E:\FR\FM\13SER1.SGM 13SER1

Agencies

[Federal Register Volume 83, Number 178 (Thursday, September 13, 2018)]
[Rules and Regulations]
[Pages 46413-46418]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18985]


=======================================================================
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DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 831, 833, 852 and 871

RIN 2900-AQ02


VA Acquisition Regulation: Contract Cost Principles and 
Procedures; Protests, Disputes and Appeals

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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

SUMMARY: The Department of Veterans Affairs (VA) is amending and 
updating its VA Acquisition Regulation (VAAR) in phased increments to 
revise or remove any policy superseded by changes in the Federal 
Acquisition Regulation (FAR), to remove procedural guidance internal to 
VA into the 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. In particular, this rulemaking revises VAAR 
concerning Contract Cost Principles and Procedures and Protests, 
Disputes and Appeals.

DATES: This rule is effective on October 15, 2018.

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: On April 6, 2018, VA published a proposed 
rule in the Federal Register (83 FR 14826), which announced VA`s intent 
to amend regulations for VAAR Case RIN 2900-AQ02 (Parts 831 and 833). 
In particular, this final rule revises VAAR part 831 to clarify the 
cost principles under the chapter 31 program and to apply those 
principles to both fixed-price and cost reimbursement contracts with 
educational institutions, as well as those with commercial and non-
profit organizations. It revises VAAR part 833 to update information 
for where an

[[Page 46414]]

interested party may protest to the contracting officer; provides for 
independent review a level above the contracting officer; and clarifies 
how interested parties may appeal a contracting officer's decision on a 
protest. Other revisions include clarification of the types of protests 
that may be dismissed by VA without consideration of the merits, or may 
be forwarded to another agency for appropriate action; states that 
certain challenges of the legal status of a firm as a regular dealer or 
manufacturer is determined solely by the procuring agency, the Small 
Business Administration (SBA) if a small business is involved, and the 
Secretary of Labor; updates two clauses in part 852 related to 
protests; clarifies a contractor's obligation to continue performance 
under a dispute; and, revises a definition of a term in VAAR part 871 
to comport with the same term used in VAAR part 831.
    VA provided a 60-day comment period for the public to respond to 
the proposed rule. The comment period for the proposed rule ended on 
June 5, 2018 and VA received no comments. This document adopts as a 
final rule the proposed rule published in the Federal Register on April 
6, 2018, with minor stylistic and grammatical edits. This final rule 
has Federal Register administrative format changes in the amendatory 
text which make no substantive text changes at the affected sections.

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 final rule will have no such effect on 
State, local, and tribal Governments or on the private sector.

Paperwork Reduction Act

    This final 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 final 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. This final rule will 
generally be small business neutral. The overall impact of the rule 
will 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 businesses will 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 final rule will 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.

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 
http://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 
http://www.va.gov/orpm by following the link for VA Regulations 
Published from FY 2004 Through Fiscal Year to Date. This final rule is 
not subject to the requirements of E.O. 13771 because this final rule 
is expected to result in no more than de minimis costs.

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 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. Robert L. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on August 24, 2018, for publication.

    Dated: August 28, 2018.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA amends 48 CFR parts 
831, 833, 852 and 871 as follows:

0
1. Part 831 is revised to read as follows:

[[Page 46415]]

PART 831--CONTRACT COST PRINCIPLES AND PROCEDURES

Subpart 831.70--Contract Cost Principles and Procedures for Veterans 
Services
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.

    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 831.70--Contract Cost Principles and Procedures for 
Veterans 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 vocational rehabilitation and employment 
(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 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

[[Page 46416]]

    (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
2. Part 833 is revised 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) Agency protests. 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) Agency actions on specific types of protests. 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 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

[[Page 46417]]

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 the Government Accountability Office's 
(GAO) timeliness requirements for protests to GAO. By filing an appeal 
as provided in this paragraph (d), 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, or 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: http://www.cbca.gsa.gov.


833.215   Contract clauses.

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

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. 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.

0
4. The heading of subpart 852.2 is revised to read as follows:

Subpart 852.2--Text of Provisions and Clauses

0
5. 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 (SEP 2018)

    (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;
    (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.

[[Page 46418]]

    (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
6. 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 (SEP 2018)

    (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 or 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
7. 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
8. 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. 2018-18985 Filed 9-12-18; 8:45 am]
 BILLING CODE 8320-01-P