VA Acquisition Regulation: Describing Agency Needs; Contract Financing, 49302-49311 [2018-18984]
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Federal Register / Vol. 83, No. 190 / Monday, October 1, 2018 / Rules and Regulations
Air pollution control, Intergovernmental
relations, Operating permits, Reporting
and recordkeeping requirements.
Part 52—APPROVAL AND
PROMULGATION OF
IMPLEMENTATION PLANS
Dated: September 25, 2018.
Edward H. Chu,
Acting Regional Administrator, Region 7.
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Subpart Q—Iowa
2. Amend § 52.820(c) by revising the
entry ‘‘567–22.1’’ to read as follows:
■
1. The authority citation for part 52
continues to read as follows:
For the reasons stated in the
preamble, EPA amends 40 CFR parts 52
and 70 as set forth below:
§ 52.820
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Authority: 42 U.S.C. 7401 et seq.
Identification of plan.
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(c) * * *
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EPA-APPROVED IOWA REGULATIONS
Iowa citation
State
effective
date
Title
EPA approval date
Explanation
Iowa Department of Natural Resources Environmental Protection Commission [567]
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Chapter 22—Controlling Pollution
567–22.1 ...........
Permits Required for New or Existing Stationary Sources.
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12/13/17
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PART 70—STATE OPERATING PERMIT
PROGRAMS
3. The authority citation for part 70
continues to read as follows:
10/1/2018, [Insert Federal Register citation].
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DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
■
44 CFR Chapter I
Authority: 42 U.S.C. 7401, et seq.
4. Amend appendix A to part 70 by
adding paragraph (s) under the heading
‘‘Iowa’’ to read as follows:
■
Appendix A to Part 70—Approval
Status of State and Local Operating
Permits Programs
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Iowa
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(s) The Iowa Department of Natural
Resources submitted for program approval
revisions to rule 567–22.105. Electronic
submittal referred to in 22.105 is not
approved in the operating permits program.
The state effective date is December 13, 2017.
This revision is effective November 30, 2018.
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BILLING CODE 6560–50–P
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Technical, Organizational and
Conforming Amendments
CFR Correction
In Title 44 of the Code of Federal
Regulations, revised as of October 1,
2017, make the following corrections:
■ 1. On page 45, in § 7.14, in paragraph
(e), remove the word ‘‘Director’’ and add
the word ‘‘Administrator’’ in its place.
■ 2. On page 135, in § 59.24, in
paragraph (a), and on page 137, in
paragraph (f), remove the term ‘‘the
Administrator’’ and add the term
‘‘Federal Insurance Administrator’’ in
its place.
■ 3. On page 285, in § 151.11, in the
introductory text, remove the word
‘‘Director’’ and add the word
‘‘Administrator’’ in its place.
■ 4. On page 286, in § 151.12, in the last
sentence of paragraph (b)(2), remove the
word ‘‘Director’’ and add the word
‘‘Administrator’’ in its place.
■ 5. On page 319, in § 206.2, in
paragraph (a)(11), remove the word
‘‘Director’’ and add the word
‘‘Administrator’’ in its place.
■ 6. On page 371, in § 206.164, in
paragraph (b), remove the word
‘‘Director’’ and add the word
‘‘Administrator’’ in its place.
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22.1(3) is not SIP approved.
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7. On page 505, in § 332.2, in
paragraph (e)(2), remove the word
‘‘Director’’ and add the word
‘‘Administrator’’ in its place.
■ 8. On page 516, in § 350.9, in the last
sentence of paragraph (c)(3), remove the
term ‘‘Associate Director’’ and add the
term ‘‘Deputy Administrator for the
National Preparedness Directorate’’ in
its place.
■ 9. On page 518, in § 350.12 in the
introductory text of paragraph (b),
remove the term ‘‘Regional Director’s’’
and add the term ‘‘Regional
Administrator’s’’ in its place.
■
[FR Doc. 2018–21367 Filed 9–28–18; 8:45 am]
BILLING CODE 1301–00–D
DEPARTMENT OF VETERANS
AFFAIRS
48 CFR Parts 801, 811, 832, 852, and
870
RIN 2900–AP81
VA Acquisition Regulation: Describing
Agency Needs; Contract Financing
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
remove any policy superseded by
changes in the Federal Acquisition
Regulation (FAR), to remove procedural
guidance internal to VA into the VA
SUMMARY:
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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 Describing
Agency Needs and Contract Financing,
as well as affected parts covering the
Department of Veterans Affairs
Acquisition Regulation System,
Solicitation Provisions and Contract
Clauses, and Special Procurement
Controls.
DATES: This rule is effective on October
31, 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
number.)
SUPPLEMENTARY INFORMATION: On March
26, 2018, VA published a proposed rule
in the Federal Register (83 FR 12922)
which announced VA’s intent to amend
regulations for VAAR Case RIN 2900–
AP81 (parts 811 and 832). In particular,
this final rule revises part 811 to remove
coverage of what brand name or equal
purchase descriptions must include as
the FAR provides sufficient coverage;
removes coverage pertaining to brand
names based on current FAR coverage;
removes purchase description clauses;
removes VAAR coverage of bid samples;
removes the section providing coverage
on procedures for negotiated
procurements; removes VAAR coverage
on ‘‘items peculiar to one
manufacturer.’’ It revises part 832 to add
policy to implement an OMB
memorandum entitled ‘‘Accelerating
Payments to Small Businesses for Goods
and Services,’’ to encourage making
payments to small business contractors
within 15 days of receipt of invoice;
delegates authority within VA to
approve contract terms concerning
advance payments; and removes
subparts 832.5, Progress Payments
Based on Costs and 832.8, Assignment
of Claims, as both contain internal
procedural guidance not having a
significant effect beyond the internal
operating procedures of VA.
VA provided a 60-day comment
period for the public to respond to the
proposed rule. The comment period for
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the proposed rule ended on May 25,
2018 and VA received no comments.
This document adopts as a final rule,
the proposed rule published in the
Federal Register on March 26, 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 imposes the following
amended information collection
requirements to two of the six existing
information collection approval
numbers associated with this rule.
Although this action contains
provisions constituting collections of
information at 48 CFR 852.236–82 and
852.236–83, under the provisions of the
Paperwork Reduction Act (44 U.S.C.
3501–3521), no new proposed
collections of information are associated
with these clauses. The information
collection requirements for 48 CFR
852.236–82 and 852.236–83 are
currently approved by the Office of
Management and Budget (OMB) and
have been assigned OMB control
number 2900–0422. However, this
information collection was submitted to
OMB to revise the title and to
redesignate and renumber the two
clauses currently numbered as sections
852.236–82, Payments Under FixedPrice Construction Contracts (Without
NAS), and 852.236–83, Payments Under
Fixed-Price Construction Contracts
(Including NAS). Accordingly, they will
reflect the new designation and revised
titles as set forth in the amendatory
language of the rule to read: 852.232–70,
Payments Under Fixed-Price
Construction Contracts (Without NAS–
CPM), and 852.232–71, Payments Under
Fixed-Price Construction Contracts
(Including NAS–CPM), respectively,
under the associated OMB control
number 2900–0422. The references to
the old numbers—852.236–82 and
852.236–83, are accordingly removed.
There is no change in the information
collection burden that is associated with
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this action. As required by the
Paperwork Reduction Act of 1995 (at 44
U.S.C. 3507(d)), VA has submitted these
information collection amendments to
OMB for its review. Notice of OMB
approval for this information collection
was published on Reginfo.gov on May
15, 2018.
This final rule imposes the following
amended information collection
requirements to one of the six existing
information collection approval
numbers associated with this rule.
Although this action contains
provisions constituting collections of
information at 48 CFR 852.211–70,
Service Data Manuals, under the
provisions of the Paperwork Reduction
Act (44 U.S.C. 3501–3521), no new
proposed information collection is
associated with this clause. The
information collection requirement for
48 CFR 852.211–70 is currently
approved by OMB and has been
assigned OMB control number 2900–
0587. However, this information
collection has been submitted to OMB
to revise the title from ‘‘Service Data
Manuals,’’ to read, ‘‘Equipment
Operation and Maintenance Manuals.’’
The information collection request
reflects the revised title for this clause
to read: 852.211–70, Equipment
Operation and Maintenance Manuals,
under the associated OMB control
number 2900–0587. By revising the
clause and removing the requirement to
develop Government-specified service
manuals, VA has eliminated an
unnecessary burden on the public by
making use of commercial operation
and maintenance manuals consistent
with the general public and established
commercial practices, thereby reducing
by half the estimated annual hourly
burden which is now estimated at 311
hours, a reduction of 310 annual hours.
Notice of OMB approval for this
information collection will be published
in a future Federal Register document.
This final rule removes two of the six
existing information collection
requirements associated with this action
at 48 CFR 852.211–71, Special Notice,
and 48 CFR 852.211–73, Brand Name or
Equal. Under the provisions of the
Paperwork Reduction Act (44 U.S.C.
3501–3521), it discontinues the
associated corresponding approved
OMB control numbers, 2900–0588 and
2900–0585, respectively. For 48 CFR
852.211–71, Special Notice, and its
corresponding OMB control number
2900–0588, this results in a removal of
875 estimated annual burden hours. For
48 CFR 852.211–73, Brand Name or
Equal, and its corresponding OMB
control number 2900–0585, this results
in a removal of 1,125 estimated annual
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burden hours. Notice of OMB approval
for the information collection requests
will be published in a future Federal
Register document.
This final rule also contains two other
provisions constituting a collection of
information at 48 CFR 852.211–72,
Technical Industry Standards, and 48
CFR 832.202–4, Security for
Government financing, which remain
unchanged. Under the provisions of the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3521), no new or proposed
revised collection of information is
associated with these provisions as a
part of this rule. The information
collection requests for 48 CFR 852.211–
72 and 48 CFR 832.202–4 are currently
approved by OMB and have been
assigned OMB control numbers 2900–
0586 and 2900–0688, respectively. The
burden of these information collections
remains unchanged. In accordance with
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501–3521), OMB has
approved the reporting or recordkeeping
provisions that are included in the
clause and the text under section
832.202–4 cited above and has given the
VA the following approval numbers:
OMB 2900–0586 and OMB 2900–0688,
respectively.
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 rule text does not
change VA’s policy regarding small
businesses. Therefore, the rule does not
have a significant economic impact on
substantial number of small entities.
There are no increased and/or decreased
costs to small entities. The overall
impact of this final 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
business resulting 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, this final rule will not have a
significant economic impact on a
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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
final rule 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.) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits of reducing costs, of
harmonizing rules, and of promoting
flexibility. E.O. 12866, Regulatory
Planning and Review defines
‘‘significant regulatory action’’ to mean
any regulatory action that is likely to
result in a rule that may: ‘‘(1) Have an
annual effect on the economy of $100
million or more or adversely affect in a
material way the economy, a sector of
the economy, productivity, competition,
jobs, the environment, public health or
safety, or State, local, or tribal
governments or communities; (2) Create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
Materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) Raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in this Executive
order.’’
VA has examined the economic,
interagency, budgetary, legal, and policy
implications of this regulatory action,
and it has been determined not to be a
significant regulatory action under E.O.
12866 because it does not raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in this Executive
Order.
VA’s impact analysis can be found as
a supporting document at https://
www.regulations.gov, usually within 48
hours after the rulemaking document is
published. Additionally, a copy of the
rulemaking and its impact analysis are
available on VA’s website at https://
www.va.gov/orpm by following the link
for VA Regulations Published from FY
2004 Through Fiscal Year to Date. This
final rule is considered an E.O. 13771
deregulatory action. Details on the
estimated cost savings of this final rule
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can be found in the rule’s economic
analysis.
List of Subjects
48 CFR Part 801
Administrative practice and
procedure, Government procurement,
Reporting and recordkeeping
requirements.
48 CFR Parts 811 and 832
Government procurement.
48 CFR Part 852
Government procurement, Reporting
and recordkeeping requirements.
48 CFR Part 870
Asbestos, Frozen foods, Government
procurement, Telecommunications.
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 801,
811, 832, 852, and 870 as follows:
PART 801—DEPARTMENT OF
VETERANS AFFAIRS ACQUISITION
REGULATION SYSTEM
1. The authority citation for part 801
is revised to read as follows:
■
Authority: 40 U.S.C. 121(c); 41 U.S.C.
1121; 41 U.S.C. 1303; 41 U.S.C. 1702; and 48
CFR 1.301–1.304.
2. In section 801.106, table columns
titled ‘‘48 CFR part or section where
identified and described’’ and ‘‘Current
OMB control number’’ are amended
by—
■ a. Removing the reference to section
832.006–4 and OMB Control Number
2900–0668.
■ b. Removing the reference to section
852.211–71 and OMB Control Number
2900–0588.
■ c. Removing the reference to section
852.211–73 and OMB Control Number
2900–0585.
■ d. Removing ‘‘852.236–82 through.’’
■ e. Adding an entry for sections
852.232–70 and 852.232–71 in
numerical order.
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The addition reads as follows:
Subpart 811.4—[Removed and
Reserved]
801.106 OMB approval under the
Paperwork Reduction Act.
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8. Subpart 811.4 is removed and
reserved.
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48 CFR part or section
where identified and
described
Current OMB
control No.
Subpart 811.5—[Removed and
Reserved]
9. Subpart 811.5 is removed and
reserved.
■
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852.232–70 and 852.232–71
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2900–0422
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3. Under the authority of 48 CFR 1.301
through 1.304, the heading of
subchapter B is revised to read as
follows:
SUBCHAPTER B—ACQUISITION PLANNING
PART 811—DESCRIBING AGENCY
NEEDS
5. Section 811.001 is removed.
6. Revise subpart 811.1 to read as
follows:
■
Subpart 811.1—Selecting and
Developing Requirements Documents
Contract clause.
The contracting officer shall insert the
clause at 852.211–70, Equipment
Operation and Maintenance Manuals, in
solicitations and contracts for technical
medical equipment, and other technical
and mechanical equipment and devices
where the requiring activity determines
manuals are a necessary requirement for
operation and maintenance of the
equipment.
7. Revise subpart 811.2 to read as
follows:
Subpart 811.2—Using and Maintaining
Requirements Documents
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Contract clause.
The contracting officer shall insert the
clause at 852.211–72, Technical
Industry Standards, in solicitations and
contracts requiring conformance to
technical industry standards, federal
specifications, standards and
commercial item descriptions unless
comparable coverage is included in the
item specification.
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Definitions.
As used in this part:
(a) Designated agency office means
the office designated by the purchase
order, agreement, or contract to first
receive and review invoices. This office
can be contractually designated as the
receiving entity. This office may be
different from the office issuing the
payment.
(b) Electronic form means an
automated system transmitting
information electronically according to
the accepted electronic data
transmission methods identified in
832.7002–1. Facsimile, email, and
scanned documents are not acceptable
electronic forms for submission of
payment requests.
(c) Payment request means any
request for contract financing payment
or invoice payment submitted by a
contractor under a contract.
■ 13. Revise section 832.006–1 to read
as follows:
832.006–1
■
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Authority: 40 U.S.C. 121(c); 41 U.S.C.
1303; 41 U.S.C. 1702; and 48 CFR 1.301–
1.304.
832.001
[Removed]
811.204–70
11. The authority citation for part 832
is revised to read as follows:
■
12. Section 832.001 is added to read
as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C.
1303; 41 U.S.C. 1702; and 48 CFR 1.301–
1.304.
811.107–70
PART 832—CONTRACT FINANCING
■
4. The authority citation for part 811
is revised to read as follows:
■
■
10. Subpart 811.6 is removed and
reserved.
■
■
811.001
Subpart 811.6—[Removed and
Reserved]
General.
(b) The Senior Procurement Executive
(SPE) is authorized to make
determinations that there is substantial
evidence that contractors’ requests for
advance, partial, or progress payments
are based on fraud and may direct that
further payments to the contractors be
reduced or suspended, as provided in
FAR 32.006.
832.006–2 and 832.006–3
[Removed]
14. Remove sections 832.006–2 and
832.006–3.
■ 15. Section 832.006–4 is revised to
read as follows:
■
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832.006–4
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Procedures.
(b) The Remedy Coordination Official
(RCO) for VA is the Deputy Senior
Procurement Executive (DSPE) who
shall carry out the responsibilities of the
Secretary or designee in FAR 32.006–
4(b).
(e) The RCO shall carry out the
responsibilities of the agency head in
FAR 32.006–4(e) to notify the contractor
of the reasons for the recommended
action and of its right to submit
information within a reasonable period
of time in response to the proposed
action under FAR 32.006.
(1) The notice of proposed action will
be sent to the last known address of the
contractor, the contractor’s counsel, or
agent for service of process, by certified
mail, return receipt requested, or any
other method that provides signed
evidence of receipt. In the case of a
business, the notice of proposed action
may be sent to any partner, principal,
officer, director, owner or co-owner, or
joint venture. The contractor will be
afforded an opportunity to appear before
the RCO to present information or
argument in person or through a
representative and may supplement the
oral presentation with written
information and argument.
(2) The contractor may supplement
the oral presentation with written
information and argument. The
proceedings will be conducted in an
informal manner and without the
requirement for a transcript. If the RCO
does not receive a reply from the
contractor within 30 calendar days, the
RCO will base his or her
recommendations on the information
available. Any recommendation of the
RCO under FAR 31.006–4(a) and
paragraph (b) of this section, must
address the results of this notification
and the information, if any, provided by
the contractor. After reviewing all the
information, the RCO shall make a
recommendation to the SPE whether or
not substantial evidence of fraud exists.
(g) In addition to following the
procedures in FAR 32.006–4, the SPE
shall provide a copy of each final
determination and the supporting
documentation to the contractor, the
RCO, the contracting officer, and the
Office of the Inspector General (OIG).
The contracting officer will place a copy
of the determination and the supporting
documentation in the contract file.
Subpart 832.1—Non-Commercial Item
Purchase Financing
16. Section 832.111 is revised to read
as follows:
■
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832.111 Contract clauses for noncommercial purchases.
17. Section 832.111–70 is added to
read as follows:
■
832.111–70 VA contract clauses for noncommercial purchases.
(a)(1) Insert the clause at 852.232–70,
Payments Under Fixed-Price
Construction Contracts (Without NAS–
CPM) in solicitations and contracts that
contain the FAR clause at 52.232–5,
Payments Under Fixed-Price
Construction Contracts, and if the
solicitation or contract does not require
use of the ‘‘Network Analysis System—
Critical Path Method (NAS–CPM).’’
(2) If the solicitation or contract
includes guarantee period services, the
contracting officer shall use the clause
with its Alternate I.
(b)(1) Insert the clause at 852.232–71,
Payments Under Fixed-Price
Construction Contracts (Including NAS–
CPM), in solicitations and contracts that
contain the FAR clause at 52.232–5,
Payments Under Fixed-Price
Construction Contracts, and if the
solicitation or contract requires use of
the ‘‘Network Analysis System—Critical
Path Method (NAS–CPM).’’
(2) If the solicitation or contract
includes guarantee period services, the
contracting officer shall use the clause
with its Alternate I.
Subpart 832.2—Commercial Item
Purchase Financing
832.201
[Removed]
18. Section 832.201 is removed.
■ 19. Section 832.202–1 is revised to
read as follows:
■
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832.202–1
Security for Government
(a)(2) An offeror’s financial condition
may be considered adequate security to
protect the Government’s interest when
the Government provides contract
16:43 Sep 28, 2018
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Subpart 832.4—Advance Payments for
Non-Commercial Items
Subpart 832.9—Prompt Payment
21. Section 832.402 is revised to read
as follows:
Policy.
VerDate Sep<11>2014
832.404
■
(d) HCAs shall report, no later than
December 31st of each calendar year, to
the Senior Procurement Executive (SPE)
and the DSPE, on the number of
contracts for commercial items with
unusual contract financing or with
commercial interim or advance
payments approved for the previous
fiscal year. The report shall include the
contract number and amount, the
amount of the unusual contract
financing or with commercial interim or
advance payments approved, and the
kind and amount of security obtained
for the advance.
■ 20. Section 832.202–4 is revised to
read as follows:
832.202–4
financing.
financing. In assessing the offeror’s
financial condition, the contracting
officer may obtain, to the extent
required, the following information—
(i) A current year interim balance
sheet and income statement and balance
sheets and income statements for the
two preceding fiscal years. The
statements should be prepared in
accordance with generally accepted
accounting principles and must be
audited and certified by an independent
public accountant or an appropriate
officer of the firm;
(ii) A cash flow forecast for the
remainder of the contract term showing
the planned origin and use of cash
within the firm or branch performing
the contract;
(iii) Information on financing
arrangements disclosing the availability
of cash to finance contract performance,
the contractor’s exposure to financial
risk, and credit arrangements;
(iv) A statement of the status of all
State, local, and Federal tax accounts,
including any special mandatory
contributions;
(v) A description and explanation of
the financial effects of any leases,
deferred purchase arrangements, patent
or royalty arrangements, insurance,
planned capital expenditures, pending
claims, contingent liabilities, and other
financial aspects of the business; and
(vi) Any other financial information
deemed necessary.
832.402
General.
(c)(1)(iii) The authority to make the
determination required by FAR
32.402(c)(1)(iii) and to approve contract
terms is delegated to the head of the
contracting activity (HCA). The request
for approval shall include the
information required by FAR 32.409–1
and shall address the standards for
advance payment in FAR 32.402(c)(2).
HCAs shall report, no later than
December 31st of each calendar year, to
the Senior Procurement Executive (SPE)
and the DSPE, on number of contracts
for non-commercial items with advance
payments approved in the previous
fiscal year. The report shall include the
contract number and amount, the
amount of the advance payment, and
the kind and amount of security
obtained for the advance.
22. Section 832.404 is revised to read
as follows:
■
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Exclusions.
(b)(1) As permitted by 31 U.S.C.
3324(d)(2), VA allows advance payment
for subscriptions or other charges for
newspapers, magazines, periodicals,
and other publications for official use,
notwithstanding the provisions of 31
U.S.C. 3324(a). The term ‘‘other
publications’’ includes any publication
printed, microfilmed, photocopied or
magnetically or otherwise recorded for
auditory or visual use.
(2) As permitted by 31 U.S.C. 1535,
VA allows advance payment for services
and supplies obtained from another
Government agency.
(3) As permitted by 5 U.S.C. 4109, VA
allows advance payment for all or any
part of the necessary expenses for
training Government employees,
including obtaining professional
credentials under 5 U.S.C. 5757, in
Government or non-Government
facilities, including the purchase or
rental of books, materials, and supplies
or services directly related to the
training of a Government employee.
Subpart 832.5 [Removed and
Reserved]
23. Subpart 832.5 is removed and
reserved.
■
Subpart 832.8 [Removed and
Reserved]
24. Subpart 832.8 is removed and
reserved.
■
832.904 [Redesignated as 832.904–70 and
Amended]
25. Redesignate section 832.904 as
832.904–70 and revise newly
redesignated section 832.904–70 to read
as follows:
■
832.904–70 Determining payment due
dates for small businesses.
Pursuant to Office of Management and
Budget Memorandum M–11–32,
Accelerating Payments to Small
Businesses for Goods and Services,
contracting officers shall, to the full
extent permitted by law, make payments
to small business contractors as soon as
practicable, with the goal of making
payments within 15 days of receipt of a
proper invoice and confirmation that
the goods and services have been
received and accepted by the Federal
Government.
Subpart 832.11 [Removed and
Reserved]
26. Subpart 832.11 is removed and
reserved.
■
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832.7001–2
27. Revise subpart 832.70 to read as
follows:
■
Subpart 832.70—Electronic Invoicing
Requirements
Sec.
832.7000 General.
832.7001 Electronic payment requests.
832.7001–1 Data transmission.
832.7001–2 Contract clause.
832.7000
General.
PART 852—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
This subpart prescribes policy
requirements for submitting and
processing payment requests in
electronic form.
832.7001
28. The authority citation for part 852
is revised to read as follows:
■
Electronic payment requests.
(a) The contractor shall submit
payment requests in electronic form
unless directed by the contracting
officer to submit payment requests by
mail. Purchases paid with a
Government-wide commercial purchase
card are considered to be an electronic
transaction for purposes of this rule, and
therefore no additional electronic
invoice submission is required.
(b) The contracting officer may direct
the contractor to submit payment
requests by mail, through the United
States Postal Service, to the designated
agency office for—
(1) Awards made to foreign vendors
for work performed outside the United
States;
(2) Classified contracts or purchases
when electronic submission and
processing of payment requests could
compromise the safeguarding of
classified or privacy information;
(3) Contracts awarded by contracting
officers in the conduct of emergency
operations, such as responses to
national emergencies;
(4) Solicitations or contracts in which
the designated agency office is a VA
entity other than the VA Financial
Services Center in Austin, Texas; or
(5) Solicitations or contracts in which
the VA designated agency office does
not have electronic invoicing capability
as described above.
amozie on DSK3GDR082PROD with RULES
832.7001–1
Data transmission.
The contractor shall submit electronic
payment requests through—
(a) VA’s Electronic Invoice
Presentment and Payment System at the
current website address provided in the
contract; or
(b) A system that conforms to the X12
electronic data interchange (EDI)
formats established by the Accredited
Standards Center (ASC) chartered by the
American National Standards Institute
(ANSI).
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Contract clause.
The contracting officer shall insert the
clause at 852.232–72, Electronic
Submission of Payment Requests, in
solicitations and contracts exceeding the
micro-purchase threshold, except those
for which the contracting officer has
directed otherwise under 832.7001, and
those paid with a Governmentwide
commercial purchase card.
Authority: 38 U.S.C. 8127–8128, and
8151–8153; 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); 41 U.S.C. 1303; 41 U.S.C. 1702;
and 48 CFR 1.301–1.304.
Subpart 852.2—Text of Provisions and
Clauses
29. Section 852.211–70 is revised to
read as follows:
■
852.211–70 Equipment Operation and
Maintenance Manuals.
As prescribed in 811.107–70, insert
the following clause:
Equipment Operation and Maintenance
Manuals (Nov 2018)
The Contractor shall follow standard
commercial practices to furnish
manual(s), handbook(s) or brochure(s)
containing operation, installation, and
maintenance instructions, including
pictures or illustrations, schematics, and
complete repair/test guides, as
necessary, for technical medical
equipment and devices, and/or other
technical and mechanical equipment
provided per CLIN(s) #lll
[Contracting Officer insert CLIN
information]. The manuals, handbooks
or brochures shall be provided in hard
copy, soft copy or with electronic access
instructions, consistent with standard
industry practices for the equipment or
device. Where applicable, the manuals,
handbooks or brochures will include
electrical data and connection diagrams
for all utilities. The documentation shall
also contain a complete list of all
replaceable parts showing part number,
name, and quantity required.
(End of clause)
852.211–71
[Removed and Reserved]
30. Section 852.211–71 is removed
and reserved.
■ 31. Section 852.211–72 is revised to
read as follows:
■
852.211–72
Technical Industry Standards.
As prescribed in 811.204–70, insert
the following clause:
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49307
Technical Industry Standards (Nov
2018)
(a) The Contractor shall conform to
the standards established by:lll
[Contracting Officer: Insert name of
organization establishing the
requirement, reference title, cite and
date, e.g., United States Department of
Agriculture (USDA), Institutional Meat
Purchase Specifications (IMPS), Series
100, Beef products, Jan 2010] as to
[Contracting Officer: Insert item and
CLIN, e.g., CLIN 0005 Ground Beef].
(b) The Contractor shall submit proof
of conformance to the standard. This
proof may be a label or seal affixed to
the equipment or supplies, warranting
that the item(s) have been tested in
accordance with the standards and meet
the contract requirement. Proof may also
be furnished by the organization listed
above certifying that the item(s)
furnished have been tested in
accordance with and conform to the
specified standards.
(c) Offerors may obtain the standards
cited in this provision by submitting a
request, including the solicitation
number, title and number of the
publication to: [Organization]lllll
[Mail or email address] lllll.
(d) The offeror shall contact the
Contracting Officer if response is not
received within two weeks of the
request.
(End of clause)
852.211–73, 852.211–74, and 852.211–75
[Removed and Reserved]
32. Remove and reserve sections
852.211–73 through 852.211–75.
■ 33. Add section 852.232–70 to read as
follows:
■
852.232–70 Payments Under Fixed-Price
Construction Contracts (Without NAS–
CPM).
As prescribed in 832.111–70, insert
the following clause in contracts that do
not contain a section entitled ‘‘Network
Analysis System—Critical Path’’
Payments Under Fixed-Price
Construction Contracts (Without NAS–
CPM) (Nov 2018)
The clause FAR 52.232–5, Payments
Under Fixed-Price Construction
Contracts, is implemented as follows:
(a) Retainage. (1) The Contracting
Officer may retain funds—
(i) Where performance under the
contract has been determined to be
deficient or the Contractor has
performed in an unsatisfactory manner
in the past; or
(ii) As the contract nears completion,
to ensure that deficiencies will be
corrected and that completion is timely.
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(2) Examples of deficient performance
justifying a retention of funds include,
but are not restricted to, the following—
(i) Unsatisfactory progress as
determined by the Contracting Officer;
(ii) Failure to meet schedule in
Schedule of Work Progress;
(iii) Failure to present submittals in a
timely manner; or
(iv) Failure to comply in good faith
with approved subcontracting plans,
certifications, or contract requirements.
(3) Any level of retention shall not
exceed 10 percent either where there is
determined to be unsatisfactory
performance, or when the retainage is to
ensure satisfactory completion. Retained
amounts shall be paid promptly upon
completion of all contract requirements,
but nothing contained in this paragraph
(a)(3) shall be construed as limiting the
Contracting Officer’s right to withhold
funds under other provisions of the
contract or in accordance with the
general law and regulations regarding
the administration of Government
contracts.
(b) The Contractor shall submit a
schedule of cost to the Contracting
Officer for approval within 30 calendar
days after date of receipt of notice to
proceed. Such schedule will be signed
and submitted in triplicate. The
approved cost schedule will be one of
the bases for determining progress
payments to the Contractor for work
completed. This schedule shall show
cost by the work activity/event for each
building or unit of the contract, as
instructed by the resident engineer.
(1) The work activities/events shall be
subdivided into as many sub-activities/
events as are necessary to cover all
component parts of the contract work.
(2) Costs as shown on this schedule
must be true costs and the resident
engineer may require the Contractor to
submit the original estimate sheets or
other information to substantiate the
detailed makeup of the schedule.
(3) The sums of the sub-activities/
events, as applied to each work activity/
event, shall equal the total cost of such
work activity/event. The total cost of all
work activities/events shall equal the
contract price.
(4) Insurance and similar items shall
be prorated and included in the cost of
each branch of the work.
(5) The cost schedule shall include
separate cost information for the
systems listed in the table in this
paragraph (b)(5). The percentages listed
in the following table are proportions of
the cost listed in the Contractor’s cost
schedule and identify, for payment
purposes, the value of the work to
adjust, correct and test systems after the
material has been installed. Payment of
the listed percentages will be made only
after the Contractor has demonstrated
that each of the systems is substantially
complete and operates as required by
the contract.
VALUE OF ADJUSTING, CORRECTING, AND TESTING SYSTEM
System
Percent
amozie on DSK3GDR082PROD with RULES
Pneumatic tube system .......................................................................................................................................................................
Incinerators (medical waste and trash) ...............................................................................................................................................
Sewage treatment plant equipment .....................................................................................................................................................
Water treatment plant equipment ........................................................................................................................................................
Washers (dish, cage, glass, etc.) ........................................................................................................................................................
Sterilizing equipment ...........................................................................................................................................................................
Water distilling equipment ...................................................................................................................................................................
Prefab temperature rooms (cold, constant temperature) ....................................................................................................................
Entire air-conditioning system (Specified under 600 Sections) ..........................................................................................................
Entire boiler plant system (Specified under 700 Sections) .................................................................................................................
General supply conveyors ...................................................................................................................................................................
Food service conveyors .......................................................................................................................................................................
Pneumatic soiled linen and trash system ............................................................................................................................................
Elevators and dumbwaiters .................................................................................................................................................................
Materials transport system ..................................................................................................................................................................
Engine-generator system .....................................................................................................................................................................
Primary switchgear ..............................................................................................................................................................................
Secondary switchgear .........................................................................................................................................................................
Fire alarm system ................................................................................................................................................................................
Nurse call system ................................................................................................................................................................................
Intercom system ..................................................................................................................................................................................
Radio system .......................................................................................................................................................................................
TV (entertainment) system ..................................................................................................................................................................
(c) In addition to this cost schedule,
the Contractor shall submit such unit
costs as may be specifically requested.
The unit costs shall be those used by the
Contractor in preparing its bid and will
not be binding as pertaining to any
contract changes.
(d) The Contracting Officer will
consider for monthly progress payments
material and/or equipment procured by
the Contractor and stored on the
construction site, as space is available,
or at a local approved location off the
site, under such terms and conditions as
the Contracting Officer approves,
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including but not limited to the
following—
(1) The materials or equipment are in
accordance with the contract
requirements and/or approved samples
and shop drawings;
(2) The materials and/or equipment
are approved by the resident engineer;
(3) The materials and/or equipment
are stored separately and are readily
available for inspection and inventory
by the resident engineer;
(4) The materials and/or equipment
are protected against weather, theft and
other hazards and are not subjected to
deterioration; and
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10
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5
(5) The Contractor obtains the
concurrence of its surety for off-site
storage.
(e) The Government reserves the right
to withhold payment until samples,
shop drawings, engineer’s certificates,
additional bonds, payrolls, weekly
statements of compliance, proof of title,
nondiscrimination compliance reports,
or any other requirements of this
contract, have been submitted to the
satisfaction of the Contracting Officer.
(f) The Contracting Officer will notify
the Contractor in writing within 10
calendar-days of exercising retainage
against any payment in accordance with
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FAR clause 52.232–5(e). The notice
shall disclose the amount of the
retainage in value and percent retained
from the payment, and provide
explanation for the retainage.
■
(End of clause)
As prescribed in 832.111–70, insert
the following clause in contracts that
contain a section entitled ‘‘Network
Analysis System—Critical Path Method
(NAS–CPM).’’
Alternate I (Nov 2018). If the
specifications include guarantee period
services, the Contracting Officer shall
include the following paragraphs as
additions to paragraph (b) of the basic
clause:
(6)(i) The Contractor shall at the time
of contract award furnish the total cost
of the guarantee period services in
accordance with specification section(s)
covering guarantee period services. The
Contractor shall submit, within 15
calendar days of receipt of the notice to
proceed, a guarantee period
performance program that shall include
an itemized accounting of the number of
work-hours required to perform the
guarantee period service on each piece
of equipment. The Contractor shall also
submit the established salary costs,
including employee fringe benefits, and
what the Contractor reasonably expects
to pay over the guarantee period, all of
which will be subject to the Contracting
Officer’s approval.
(ii) The cost of the guarantee period
service shall be prorated on an annual
basis and paid in equal monthly
payments by VA during the period of
guarantee. In the event the installer does
not perform satisfactorily during this
period, all payments may be withheld
and the Contracting Officer shall inform
the Contractor of the unsatisfactory
performance, allowing the Contractor 10
days to correct deficiencies and comply
with the contract. The guarantee period
service is subject to those provisions as
set forth in the Payments and Default
clauses.
34. Add section 852.232–71 to read as
follows:
852.232–71 Payments Under Fixed-Price
Construction Contracts (Including NAS–
CPM).
Payments Under Fixed-Price
Construction Contracts (Including
NAS–CPM) (Nov 2018)
The clause FAR 52.232–5, Payments
Under Fixed-Price Construction
Contracts, is implemented as follows:
(a) Retainage. (1) The Contracting
Officer may retain funds—
(i) Where performance under the
contract has been determined to be
deficient or the Contractor has
performed in an unsatisfactory manner
in the past; or
(ii) As the contract nears completion,
to ensure that deficiencies will be
corrected and that completion is timely.
(2) Examples of deficient performance
justifying a retention of funds include,
but are not restricted to, the following—
(i) Unsatisfactory progress as
determined by the Contracting Officer;
(ii) Failure to meet schedule in
Schedule of Work Progress;
(iii) Failure to present submittals in a
timely manner; or
(iv) Failure to comply in good faith
with approved subcontracting plans,
certifications, or contract requirements.
(3) Any level of retention shall not
exceed 10 percent either where there is
determined to be unsatisfactory
performance, or when the retainage is to
ensure satisfactory completion. Retained
amounts shall be paid promptly upon
completion of all contract requirements,
but nothing contained in this paragraph
49309
(a)(3) shall be construed as limiting the
Contracting Officer’s right to withhold
funds under other provisions of the
contract or in accordance with the
general law and regulations regarding
the administration of Government
contracts.
(b) The Contractor shall submit a
schedule of costs in accordance with the
requirements of section ‘‘Network
Analysis System—Critical Path Method
(NAS–CPM)’’ to the Contracting Officer
for approval within 90 calendar days
after date of receipt of notice to proceed.
The approved cost schedule will be one
of the bases for determining progress
payments to the Contractor for work
completed.
(1) Costs as shown on this schedule
must be true costs and the resident
engineer may require the Contractor to
submit its original estimate sheets or
other information to substantiate the
detailed makeup of the cost schedule.
(2) The total costs of all work
activities/events shall equal the contract
price.
(3) Insurance and similar items shall
be prorated and included in each work
activity/event cost of the critical path
method (CPM).
(4) The CPM shall include a separate
cost loaded activity for adjusting and
testing of the systems listed in the table
in paragraph (b)(5) of this clause. The
percentages listed in paragraph (b)(5)
will be used to determine the cost of
adjust and test work activities/events
and identify, for payment purposes, the
value of the work to adjust, correct and
test systems after the material has been
installed.
(5) Payment for adjust and test
activities will be made only after the
Contractor has demonstrated that each
of the systems is substantially complete
and operates as required by the contract.
VALUE OF ADJUSTING, CORRECTING, AND TESTING SYSTEM
amozie on DSK3GDR082PROD with RULES
System
Percent
Pneumatic tube system .......................................................................................................................................................................
Incinerators (medical waste and trash) ...............................................................................................................................................
Sewage treatment plant equipment .....................................................................................................................................................
Water treatment plant equipment ........................................................................................................................................................
Washers (dish, cage, glass, etc.) ........................................................................................................................................................
Sterilizing equipment ...........................................................................................................................................................................
Water distilling equipment ...................................................................................................................................................................
Prefab temperature rooms (cold, constant temperature) ....................................................................................................................
Entire air-conditioning system (Specified under 600 Sections) ..........................................................................................................
Entire boiler plant system (Specified under 700 Sections) .................................................................................................................
General supply conveyors ...................................................................................................................................................................
Food service conveyors .......................................................................................................................................................................
Pneumatic soiled linen and trash system ............................................................................................................................................
Elevators and dumbwaiters .................................................................................................................................................................
Materials transport system ..................................................................................................................................................................
Engine-generator system .....................................................................................................................................................................
Primary switchgear ..............................................................................................................................................................................
Secondary switchgear .........................................................................................................................................................................
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VALUE OF ADJUSTING, CORRECTING, AND TESTING SYSTEM—Continued
System
Percent
amozie on DSK3GDR082PROD with RULES
Fire alarm system ................................................................................................................................................................................
Nurse call system ................................................................................................................................................................................
Intercom system ..................................................................................................................................................................................
Radio system .......................................................................................................................................................................................
TV (entertainment) system ..................................................................................................................................................................
(c) In addition to this cost schedule,
the Contractor shall submit such unit
costs as may be specifically requested.
The unit costs shall be those used by the
Contractor in preparing its bid and will
not be binding as pertaining to any
contract changes.
(d) The Contracting Officer will
consider for monthly progress payments
material and/or equipment procured by
the Contractor and stored on the
construction site, as space is available,
or at a local approved location off the
site, under such terms and conditions as
the Contracting Officer approves,
including but not limited to the
following—
(1) The materials or equipment are in
accordance with the contract
requirements and/or approved samples
and shop drawings;
(2) The materials and/or equipment
are approved by the resident engineer;
(3) The materials and/or equipment
are stored separately and are readily
available for inspection and inventory
by the resident engineer;
(4) The materials and/or equipment
are protected against weather, theft and
other hazards and are not subjected to
deterioration; and
(5) The Contractor obtains the
concurrence of its surety for off-site
storage.
(e) The Government reserves the right
to withhold payment until samples,
shop drawings, engineer’s certificates,
additional bonds, payrolls, weekly
statements of compliance, proof of title,
nondiscrimination compliance reports,
or any other requirements of this
contract, have been submitted to the
satisfaction of the Contracting Officer.
(f) The Contracting Officer will notify
the Contractor in writing within 10
calendar-days of exercising retainage
against any payment in accordance with
FAR clause 52.232–5(e). The notice
shall disclose the amount of the
retainage in value and percent retained
from the payment, and provide
explanation for the retainage.
(End of clause)
Alternate I (Nov 2018). If the
specifications include guarantee period
services, the Contracting Officer shall
include the following paragraphs as
VerDate Sep<11>2014
16:43 Sep 28, 2018
Jkt 247001
additions to paragraph (b) of the basic
clause:
(6)(i) The Contractor shall show on
the critical path method (CPM) the total
cost of the guarantee period services in
accordance with the guarantee period
service section(s) of the specifications.
This cost shall be priced out when
submitting the CPM cost loaded
network. The cost submitted shall be
subject to the approval of the
Contracting Officer. The activity on the
CPM shall have money only and not
activity time.
(ii) The Contractor shall submit with
the CPM a guarantee period
performance program which shall
include an itemized accounting of the
number of work-hours required to
perform the guarantee period service on
each piece of equipment. The Contractor
shall also submit the established salary
costs, including employee fringe
benefits, and what the Contractor
reasonably expects to pay over the
guarantee period, all of which will be
subject to the Contracting Officer’s
approval.
(iii) The cost of the guarantee period
service shall be prorated on an annual
basis and paid in equal monthly
payments by VA during the period of
guarantee. In the event the installer does
not perform satisfactorily during this
period, all payments may be withheld
and the Contracting Officer shall inform
the Contractor of the unsatisfactory
performance, allowing the Contractor 10
days to correct and comply with the
contract. The guarantee period service is
subject to those provisions as set forth
in the Payments and Default clauses.
■ 35. Section 852.232–72 is revised to
read as follows:
852.232–72 Electronic Submission of
Payment Requests.
As prescribed in 832.7001–2, insert
the following clause:
Electronic Submission of Payment
Requests (Nov 2018)
(a) Definitions. As used in this
clause—
(1) Contract financing payment has
the meaning given in FAR 32.001;
(2) Designated agency office means
the office designated by the purchase
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5
5
5
5
order, agreement, or contract to first
receive and review invoices. This office
can be contractually designated as the
receiving entity. This office may be
different from the office issuing the
payment;
(3) Electronic form means an
automated system transmitting
information electronically according to
the accepted electronic data
transmission methods and formats
identified in paragraph (c) of this clause.
Facsimile, email, and scanned
documents are not acceptable electronic
forms for submission of payment
requests;
(4) Invoice payment has the meaning
given in FAR 32.001; and
(5) Payment request means any
request for contract financing payment
or invoice payment submitted by the
Contractor under this contract.
(b) Electronic payment requests.
Except as provided in paragraph (e) of
this clause, the Contractor shall submit
payment requests in electronic form.
Purchases paid with a Government-wide
commercial purchase card are
considered to be an electronic
transaction for purposes of this rule, and
therefore no additional electronic
invoice submission is required.
(c) Data transmission. A Contractor
must ensure that the data transmission
method and format are through one of
the following:
(1) VA’s Electronic Invoice
Presentment and Payment System at the
current website address provided in the
contract.
(2) Any system that conforms to the
X12 electronic data interchange (EDI)
formats established by the Accredited
Standards Center (ASC) and chartered
by the American National Standards
Institute (ANSI).
(d) Invoice requirements. Invoices
shall comply with FAR 32.905.
(e) Exceptions. If, based on one of the
circumstances in this paragraph (e), the
Contracting Officer directs that payment
requests be made by mail, the
Contractor shall submit payment
requests by mail through the United
States Postal Service to the designated
agency office. Submission of payment
requests by mail may be required for—
E:\FR\FM\01OCR1.SGM
01OCR1
Federal Register / Vol. 83, No. 190 / Monday, October 1, 2018 / Rules and Regulations
amozie on DSK3GDR082PROD with RULES
(1) Awards made to foreign vendors
for work performed outside the United
States;
(2) Classified contracts or purchases
when electronic submission and
processing of payment requests could
compromise the safeguarding of
classified or privacy information;
(3) Contracts awarded by Contracting
Officers in the conduct of emergency
operations, such as responses to
national emergencies;
(4) Solicitations or contracts in which
the designated agency office is a VA
VerDate Sep<11>2014
16:43 Sep 28, 2018
Jkt 247001
entity other than the VA Financial
Services Center in Austin, Texas; or
(5) Solicitations or contracts in which
the VA designated agency office does
not have electronic invoicing capability
as described above.
(End of clause)
[Removed and
36. Remove and reserve sections
852.236–82 and 852.236–83.
■
PO 00000
Frm 00047
Fmt 4700
PART 870—SPECIAL PROCUREMENT
CONTROLS
37. The authority citation for part 870
is revised to read as follows:
■
Authority: 40 U.S.C. 121(c); 41 U.S.C.
1702; and 48 CFR 1.301–1.304.
870.112 and 870.113
852.236–82 and 852.236–83
Reserved]
Sfmt 9990
49311
[Removed]
38. Remove sections 870.112 and
870.113.
■
[FR Doc. 2018–18984 Filed 9–28–18; 8:45 am]
BILLING CODE 8320–01–P
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01OCR1
]]>Agencies
[Federal Register Volume 83, Number 190 (Monday, October 1, 2018)]
[Rules and Regulations]
[Pages 49302-49311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18984]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 801, 811, 832, 852, and 870
RIN 2900-AP81
VA Acquisition Regulation: Describing Agency Needs; Contract
Financing
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
[[Page 49303]]
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 Describing Agency Needs and
Contract Financing, as well as affected parts covering the Department
of Veterans Affairs Acquisition Regulation System, Solicitation
Provisions and Contract Clauses, and Special Procurement Controls.
DATES: This rule is effective on October 31, 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 number.)
SUPPLEMENTARY INFORMATION: On March 26, 2018, VA published a proposed
rule in the Federal Register (83 FR 12922) which announced VA's intent
to amend regulations for VAAR Case RIN 2900-AP81 (parts 811 and 832).
In particular, this final rule revises part 811 to remove coverage of
what brand name or equal purchase descriptions must include as the FAR
provides sufficient coverage; removes coverage pertaining to brand
names based on current FAR coverage; removes purchase description
clauses; removes VAAR coverage of bid samples; removes the section
providing coverage on procedures for negotiated procurements; removes
VAAR coverage on ``items peculiar to one manufacturer.'' It revises
part 832 to add policy to implement an OMB memorandum entitled
``Accelerating Payments to Small Businesses for Goods and Services,''
to encourage making payments to small business contractors within 15
days of receipt of invoice; delegates authority within VA to approve
contract terms concerning advance payments; and removes subparts 832.5,
Progress Payments Based on Costs and 832.8, Assignment of Claims, as
both contain internal procedural guidance not having a significant
effect beyond the internal operating procedures of VA.
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
May 25, 2018 and VA received no comments. This document adopts as a
final rule, the proposed rule published in the Federal Register on
March 26, 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 imposes the following amended information
collection requirements to two of the six existing information
collection approval numbers associated with this rule. Although this
action contains provisions constituting collections of information at
48 CFR 852.236-82 and 852.236-83, under the provisions of the Paperwork
Reduction Act (44 U.S.C. 3501-3521), no new proposed collections of
information are associated with these clauses. The information
collection requirements for 48 CFR 852.236-82 and 852.236-83 are
currently approved by the Office of Management and Budget (OMB) and
have been assigned OMB control number 2900-0422. However, this
information collection was submitted to OMB to revise the title and to
redesignate and renumber the two clauses currently numbered as sections
852.236-82, Payments Under Fixed-Price Construction Contracts (Without
NAS), and 852.236-83, Payments Under Fixed-Price Construction Contracts
(Including NAS). Accordingly, they will reflect the new designation and
revised titles as set forth in the amendatory language of the rule to
read: 852.232-70, Payments Under Fixed-Price Construction Contracts
(Without NAS-CPM), and 852.232-71, Payments Under Fixed-Price
Construction Contracts (Including NAS-CPM), respectively, under the
associated OMB control number 2900-0422. The references to the old
numbers--852.236-82 and 852.236-83, are accordingly removed. There is
no change in the information collection burden that is associated with
this action. As required by the Paperwork Reduction Act of 1995 (at 44
U.S.C. 3507(d)), VA has submitted these information collection
amendments to OMB for its review. Notice of OMB approval for this
information collection was published on Reginfo.gov on May 15, 2018.
This final rule imposes the following amended information
collection requirements to one of the six existing information
collection approval numbers associated with this rule. Although this
action contains provisions constituting collections of information at
48 CFR 852.211-70, Service Data Manuals, under the provisions of the
Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed
information collection is associated with this clause. The information
collection requirement for 48 CFR 852.211-70 is currently approved by
OMB and has been assigned OMB control number 2900-0587. However, this
information collection has been submitted to OMB to revise the title
from ``Service Data Manuals,'' to read, ``Equipment Operation and
Maintenance Manuals.'' The information collection request reflects the
revised title for this clause to read: 852.211-70, Equipment Operation
and Maintenance Manuals, under the associated OMB control number 2900-
0587. By revising the clause and removing the requirement to develop
Government-specified service manuals, VA has eliminated an unnecessary
burden on the public by making use of commercial operation and
maintenance manuals consistent with the general public and established
commercial practices, thereby reducing by half the estimated annual
hourly burden which is now estimated at 311 hours, a reduction of 310
annual hours. Notice of OMB approval for this information collection
will be published in a future Federal Register document.
This final rule removes two of the six existing information
collection requirements associated with this action at 48 CFR 852.211-
71, Special Notice, and 48 CFR 852.211-73, Brand Name or Equal. Under
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), it
discontinues the associated corresponding approved OMB control numbers,
2900-0588 and 2900-0585, respectively. For 48 CFR 852.211-71, Special
Notice, and its corresponding OMB control number 2900-0588, this
results in a removal of 875 estimated annual burden hours. For 48 CFR
852.211-73, Brand Name or Equal, and its corresponding OMB control
number 2900-0585, this results in a removal of 1,125 estimated annual
[[Page 49304]]
burden hours. Notice of OMB approval for the information collection
requests will be published in a future Federal Register document.
This final rule also contains two other provisions constituting a
collection of information at 48 CFR 852.211-72, Technical Industry
Standards, and 48 CFR 832.202-4, Security for Government financing,
which remain unchanged. Under the provisions of the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised
collection of information is associated with these provisions as a part
of this rule. The information collection requests for 48 CFR 852.211-72
and 48 CFR 832.202-4 are currently approved by OMB and have been
assigned OMB control numbers 2900-0586 and 2900-0688, respectively. The
burden of these information collections remains unchanged. In
accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521), OMB has approved the reporting or recordkeeping provisions that
are included in the clause and the text under section 832.202-4 cited
above and has given the VA the following approval numbers: OMB 2900-
0586 and OMB 2900-0688, respectively.
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 rule text does not change VA's
policy regarding small businesses. Therefore, the rule does not have a
significant economic impact on substantial number of small entities.
There are no increased and/or decreased costs to small entities. The
overall impact of this final 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
business resulting 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, 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. Therefore, under 5 U.S.C. 605(b),
this final rule 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.) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits
of reducing costs, of harmonizing rules, and of promoting flexibility.
E.O. 12866, Regulatory Planning and Review defines ``significant
regulatory action'' to mean any regulatory action that is likely to
result in a rule that may: ``(1) Have an annual effect on the economy
of $100 million or more or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive order.''
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this regulatory action, and it has been
determined not to be a significant regulatory action under E.O. 12866
because it does not raise novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in this Executive Order.
VA's impact analysis can be found as a supporting document at
https://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its impact analysis are available on VA's website at
https://www.va.gov/orpm by following the link for VA Regulations
Published from FY 2004 Through Fiscal Year to Date. This final rule is
considered an E.O. 13771 deregulatory action. Details on the estimated
cost savings of this final rule can be found in the rule's economic
analysis.
List of Subjects
48 CFR Part 801
Administrative practice and procedure, Government procurement,
Reporting and recordkeeping requirements.
48 CFR Parts 811 and 832
Government procurement.
48 CFR Part 852
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 870
Asbestos, Frozen foods, Government procurement, Telecommunications.
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
801, 811, 832, 852, and 870 as follows:
PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION
SYSTEM
0
1. The authority citation for part 801 is revised to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121; 41 U.S.C. 1303; 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
0
2. In section 801.106, table columns titled ``48 CFR part or section
where identified and described'' and ``Current OMB control number'' are
amended by--
0
a. Removing the reference to section 832.006-4 and OMB Control Number
2900-0668.
0
b. Removing the reference to section 852.211-71 and OMB Control Number
2900-0588.
0
c. Removing the reference to section 852.211-73 and OMB Control Number
2900-0585.
0
d. Removing ``852.236-82 through.''
0
e. Adding an entry for sections 852.232-70 and 852.232-71 in numerical
order.
[[Page 49305]]
The addition reads as follows:
801.106 OMB approval under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
Current OMB
48 CFR part or section where identified and described control No.
------------------------------------------------------------------------
* * * * *
852.232-70 and 852.232-71............................... 2900-0422
* * * * *
------------------------------------------------------------------------
0
3. Under the authority of 48 CFR 1.301 through 1.304, the heading of
subchapter B is revised to read as follows:
SUBCHAPTER B--ACQUISITION PLANNING
PART 811--DESCRIBING AGENCY NEEDS
0
4. The authority citation for part 811 is revised to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702;
and 48 CFR 1.301-1.304.
811.001 [Removed]
0
5. Section 811.001 is removed.
0
6. Revise subpart 811.1 to read as follows:
Subpart 811.1--Selecting and Developing Requirements Documents
811.107-70 Contract clause.
The contracting officer shall insert the clause at 852.211-70,
Equipment Operation and Maintenance Manuals, in solicitations and
contracts for technical medical equipment, and other technical and
mechanical equipment and devices where the requiring activity
determines manuals are a necessary requirement for operation and
maintenance of the equipment.
0
7. Revise subpart 811.2 to read as follows:
Subpart 811.2--Using and Maintaining Requirements Documents
811.204-70 Contract clause.
The contracting officer shall insert the clause at 852.211-72,
Technical Industry Standards, in solicitations and contracts requiring
conformance to technical industry standards, federal specifications,
standards and commercial item descriptions unless comparable coverage
is included in the item specification.
Subpart 811.4--[Removed and Reserved]
0
8. Subpart 811.4 is removed and reserved.
Subpart 811.5--[Removed and Reserved]
0
9. Subpart 811.5 is removed and reserved.
Subpart 811.6--[Removed and Reserved]
0
10. Subpart 811.6 is removed and reserved.
PART 832--CONTRACT FINANCING
0
11. The authority citation for part 832 is revised to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702;
and 48 CFR 1.301-1.304.
0
12. Section 832.001 is added to read as follows:
832.001 Definitions.
As used in this part:
(a) Designated agency office means the office designated by the
purchase order, agreement, or contract to first receive and review
invoices. This office can be contractually designated as the receiving
entity. This office may be different from the office issuing the
payment.
(b) Electronic form means an automated system transmitting
information electronically according to the accepted electronic data
transmission methods identified in 832.7002-1. Facsimile, email, and
scanned documents are not acceptable electronic forms for submission of
payment requests.
(c) Payment request means any request for contract financing
payment or invoice payment submitted by a contractor under a contract.
0
13. Revise section 832.006-1 to read as follows:
832.006-1 General.
(b) The Senior Procurement Executive (SPE) is authorized to make
determinations that there is substantial evidence that contractors'
requests for advance, partial, or progress payments are based on fraud
and may direct that further payments to the contractors be reduced or
suspended, as provided in FAR 32.006.
832.006-2 and 832.006-3 [Removed]
0
14. Remove sections 832.006-2 and 832.006-3.
0
15. Section 832.006-4 is revised to read as follows:
832.006-4 Procedures.
(b) The Remedy Coordination Official (RCO) for VA is the Deputy
Senior Procurement Executive (DSPE) who shall carry out the
responsibilities of the Secretary or designee in FAR 32.006-4(b).
(e) The RCO shall carry out the responsibilities of the agency head
in FAR 32.006-4(e) to notify the contractor of the reasons for the
recommended action and of its right to submit information within a
reasonable period of time in response to the proposed action under FAR
32.006.
(1) The notice of proposed action will be sent to the last known
address of the contractor, the contractor's counsel, or agent for
service of process, by certified mail, return receipt requested, or any
other method that provides signed evidence of receipt. In the case of a
business, the notice of proposed action may be sent to any partner,
principal, officer, director, owner or co-owner, or joint venture. The
contractor will be afforded an opportunity to appear before the RCO to
present information or argument in person or through a representative
and may supplement the oral presentation with written information and
argument.
(2) The contractor may supplement the oral presentation with
written information and argument. The proceedings will be conducted in
an informal manner and without the requirement for a transcript. If the
RCO does not receive a reply from the contractor within 30 calendar
days, the RCO will base his or her recommendations on the information
available. Any recommendation of the RCO under FAR 31.006-4(a) and
paragraph (b) of this section, must address the results of this
notification and the information, if any, provided by the contractor.
After reviewing all the information, the RCO shall make a
recommendation to the SPE whether or not substantial evidence of fraud
exists.
(g) In addition to following the procedures in FAR 32.006-4, the
SPE shall provide a copy of each final determination and the supporting
documentation to the contractor, the RCO, the contracting officer, and
the Office of the Inspector General (OIG). The contracting officer will
place a copy of the determination and the supporting documentation in
the contract file.
Subpart 832.1--Non-Commercial Item Purchase Financing
0
16. Section 832.111 is revised to read as follows:
[[Page 49306]]
832.111 Contract clauses for non-commercial purchases.
0
17. Section 832.111-70 is added to read as follows:
832.111-70 VA contract clauses for non-commercial purchases.
(a)(1) Insert the clause at 852.232-70, Payments Under Fixed-Price
Construction Contracts (Without NAS-CPM) in solicitations and contracts
that contain the FAR clause at 52.232-5, Payments Under Fixed-Price
Construction Contracts, and if the solicitation or contract does not
require use of the ``Network Analysis System--Critical Path Method
(NAS-CPM).''
(2) If the solicitation or contract includes guarantee period
services, the contracting officer shall use the clause with its
Alternate I.
(b)(1) Insert the clause at 852.232-71, Payments Under Fixed-Price
Construction Contracts (Including NAS-CPM), in solicitations and
contracts that contain the FAR clause at 52.232-5, Payments Under
Fixed-Price Construction Contracts, and if the solicitation or contract
requires use of the ``Network Analysis System--Critical Path Method
(NAS-CPM).''
(2) If the solicitation or contract includes guarantee period
services, the contracting officer shall use the clause with its
Alternate I.
Subpart 832.2--Commercial Item Purchase Financing
832.201 [Removed]
0
18. Section 832.201 is removed.
0
19. Section 832.202-1 is revised to read as follows:
832.202-1 Policy.
(d) HCAs shall report, no later than December 31st of each calendar
year, to the Senior Procurement Executive (SPE) and the DSPE, on the
number of contracts for commercial items with unusual contract
financing or with commercial interim or advance payments approved for
the previous fiscal year. The report shall include the contract number
and amount, the amount of the unusual contract financing or with
commercial interim or advance payments approved, and the kind and
amount of security obtained for the advance.
0
20. Section 832.202-4 is revised to read as follows:
832.202-4 Security for Government financing.
(a)(2) An offeror's financial condition may be considered adequate
security to protect the Government's interest when the Government
provides contract financing. In assessing the offeror's financial
condition, the contracting officer may obtain, to the extent required,
the following information--
(i) A current year interim balance sheet and income statement and
balance sheets and income statements for the two preceding fiscal
years. The statements should be prepared in accordance with generally
accepted accounting principles and must be audited and certified by an
independent public accountant or an appropriate officer of the firm;
(ii) A cash flow forecast for the remainder of the contract term
showing the planned origin and use of cash within the firm or branch
performing the contract;
(iii) Information on financing arrangements disclosing the
availability of cash to finance contract performance, the contractor's
exposure to financial risk, and credit arrangements;
(iv) A statement of the status of all State, local, and Federal tax
accounts, including any special mandatory contributions;
(v) A description and explanation of the financial effects of any
leases, deferred purchase arrangements, patent or royalty arrangements,
insurance, planned capital expenditures, pending claims, contingent
liabilities, and other financial aspects of the business; and
(vi) Any other financial information deemed necessary.
Subpart 832.4--Advance Payments for Non-Commercial Items
0
21. Section 832.402 is revised to read as follows:
832.402 General.
(c)(1)(iii) The authority to make the determination required by FAR
32.402(c)(1)(iii) and to approve contract terms is delegated to the
head of the contracting activity (HCA). The request for approval shall
include the information required by FAR 32.409-1 and shall address the
standards for advance payment in FAR 32.402(c)(2). HCAs shall report,
no later than December 31st of each calendar year, to the Senior
Procurement Executive (SPE) and the DSPE, on number of contracts for
non-commercial items with advance payments approved in the previous
fiscal year. The report shall include the contract number and amount,
the amount of the advance payment, and the kind and amount of security
obtained for the advance.
0
22. Section 832.404 is revised to read as follows:
832.404 Exclusions.
(b)(1) As permitted by 31 U.S.C. 3324(d)(2), VA allows advance
payment for subscriptions or other charges for newspapers, magazines,
periodicals, and other publications for official use, notwithstanding
the provisions of 31 U.S.C. 3324(a). The term ``other publications''
includes any publication printed, microfilmed, photocopied or
magnetically or otherwise recorded for auditory or visual use.
(2) As permitted by 31 U.S.C. 1535, VA allows advance payment for
services and supplies obtained from another Government agency.
(3) As permitted by 5 U.S.C. 4109, VA allows advance payment for
all or any part of the necessary expenses for training Government
employees, including obtaining professional credentials under 5 U.S.C.
5757, in Government or non-Government facilities, including the
purchase or rental of books, materials, and supplies or services
directly related to the training of a Government employee.
Subpart 832.5 [Removed and Reserved]
0
23. Subpart 832.5 is removed and reserved.
Subpart 832.8 [Removed and Reserved]
0
24. Subpart 832.8 is removed and reserved.
Subpart 832.9--Prompt Payment
832.904 [Redesignated as 832.904-70 and Amended]
0
25. Redesignate section 832.904 as 832.904-70 and revise newly
redesignated section 832.904-70 to read as follows:
832.904-70 Determining payment due dates for small businesses.
Pursuant to Office of Management and Budget Memorandum M-11-32,
Accelerating Payments to Small Businesses for Goods and Services,
contracting officers shall, to the full extent permitted by law, make
payments to small business contractors as soon as practicable, with the
goal of making payments within 15 days of receipt of a proper invoice
and confirmation that the goods and services have been received and
accepted by the Federal Government.
Subpart 832.11 [Removed and Reserved]
0
26. Subpart 832.11 is removed and reserved.
[[Page 49307]]
0
27. Revise subpart 832.70 to read as follows:
Subpart 832.70--Electronic Invoicing Requirements
Sec.
832.7000 General.
832.7001 Electronic payment requests.
832.7001-1 Data transmission.
832.7001-2 Contract clause.
832.7000 General.
This subpart prescribes policy requirements for submitting and
processing payment requests in electronic form.
832.7001 Electronic payment requests.
(a) The contractor shall submit payment requests in electronic form
unless directed by the contracting officer to submit payment requests
by mail. Purchases paid with a Government-wide commercial purchase card
are considered to be an electronic transaction for purposes of this
rule, and therefore no additional electronic invoice submission is
required.
(b) The contracting officer may direct the contractor to submit
payment requests by mail, through the United States Postal Service, to
the designated agency office for--
(1) Awards made to foreign vendors for work performed outside the
United States;
(2) Classified contracts or purchases when electronic submission
and processing of payment requests could compromise the safeguarding of
classified or privacy information;
(3) Contracts awarded by contracting officers in the conduct of
emergency operations, such as responses to national emergencies;
(4) Solicitations or contracts in which the designated agency
office is a VA entity other than the VA Financial Services Center in
Austin, Texas; or
(5) Solicitations or contracts in which the VA designated agency
office does not have electronic invoicing capability as described
above.
832.7001-1 Data transmission.
The contractor shall submit electronic payment requests through--
(a) VA's Electronic Invoice Presentment and Payment System at the
current website address provided in the contract; or
(b) A system that conforms to the X12 electronic data interchange
(EDI) formats established by the Accredited Standards Center (ASC)
chartered by the American National Standards Institute (ANSI).
832.7001-2 Contract clause.
The contracting officer shall insert the clause at 852.232-72,
Electronic Submission of Payment Requests, in solicitations and
contracts exceeding the micro-purchase threshold, except those for
which the contracting officer has directed otherwise under 832.7001,
and those paid with a Governmentwide commercial purchase card.
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
28. The authority citation for part 852 is revised to read as follows:
Authority: 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C.
121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48
CFR 1.301-1.304.
Subpart 852.2--Text of Provisions and Clauses
0
29. Section 852.211-70 is revised to read as follows:
852.211-70 Equipment Operation and Maintenance Manuals.
As prescribed in 811.107-70, insert the following clause:
Equipment Operation and Maintenance Manuals (Nov 2018)
The Contractor shall follow standard commercial practices to
furnish manual(s), handbook(s) or brochure(s) containing operation,
installation, and maintenance instructions, including pictures or
illustrations, schematics, and complete repair/test guides, as
necessary, for technical medical equipment and devices, and/or other
technical and mechanical equipment provided per CLIN(s) #___
[Contracting Officer insert CLIN information]. The manuals, handbooks
or brochures shall be provided in hard copy, soft copy or with
electronic access instructions, consistent with standard industry
practices for the equipment or device. Where applicable, the manuals,
handbooks or brochures will include electrical data and connection
diagrams for all utilities. The documentation shall also contain a
complete list of all replaceable parts showing part number, name, and
quantity required.
(End of clause)
852.211-71 [Removed and Reserved]
0
30. Section 852.211-71 is removed and reserved.
0
31. Section 852.211-72 is revised to read as follows:
852.211-72 Technical Industry Standards.
As prescribed in 811.204-70, insert the following clause:
Technical Industry Standards (Nov 2018)
(a) The Contractor shall conform to the standards established
by:___ [Contracting Officer: Insert name of organization establishing
the requirement, reference title, cite and date, e.g., United States
Department of Agriculture (USDA), Institutional Meat Purchase
Specifications (IMPS), Series 100, Beef products, Jan 2010] as to
[Contracting Officer: Insert item and CLIN, e.g., CLIN 0005 Ground
Beef].
(b) The Contractor shall submit proof of conformance to the
standard. This proof may be a label or seal affixed to the equipment or
supplies, warranting that the item(s) have been tested in accordance
with the standards and meet the contract requirement. Proof may also be
furnished by the organization listed above certifying that the item(s)
furnished have been tested in accordance with and conform to the
specified standards.
(c) Offerors may obtain the standards cited in this provision by
submitting a request, including the solicitation number, title and
number of the publication to: [Organization]_____ [Mail or email
address] _____.
(d) The offeror shall contact the Contracting Officer if response
is not received within two weeks of the request.
(End of clause)
852.211-73, 852.211-74, and 852.211-75 [Removed and Reserved]
0
32. Remove and reserve sections 852.211-73 through 852.211-75.
0
33. Add section 852.232-70 to read as follows:
852.232-70 Payments Under Fixed-Price Construction Contracts (Without
NAS-CPM).
As prescribed in 832.111-70, insert the following clause in
contracts that do not contain a section entitled ``Network Analysis
System--Critical Path''
Payments Under Fixed-Price Construction Contracts (Without NAS-CPM)
(Nov 2018)
The clause FAR 52.232-5, Payments Under Fixed-Price Construction
Contracts, is implemented as follows:
(a) Retainage. (1) The Contracting Officer may retain funds--
(i) Where performance under the contract has been determined to be
deficient or the Contractor has performed in an unsatisfactory manner
in the past; or
(ii) As the contract nears completion, to ensure that deficiencies
will be corrected and that completion is timely.
[[Page 49308]]
(2) Examples of deficient performance justifying a retention of
funds include, but are not restricted to, the following--
(i) Unsatisfactory progress as determined by the Contracting
Officer;
(ii) Failure to meet schedule in Schedule of Work Progress;
(iii) Failure to present submittals in a timely manner; or
(iv) Failure to comply in good faith with approved subcontracting
plans, certifications, or contract requirements.
(3) Any level of retention shall not exceed 10 percent either where
there is determined to be unsatisfactory performance, or when the
retainage is to ensure satisfactory completion. Retained amounts shall
be paid promptly upon completion of all contract requirements, but
nothing contained in this paragraph (a)(3) shall be construed as
limiting the Contracting Officer's right to withhold funds under other
provisions of the contract or in accordance with the general law and
regulations regarding the administration of Government contracts.
(b) The Contractor shall submit a schedule of cost to the
Contracting Officer for approval within 30 calendar days after date of
receipt of notice to proceed. Such schedule will be signed and
submitted in triplicate. The approved cost schedule will be one of the
bases for determining progress payments to the Contractor for work
completed. This schedule shall show cost by the work activity/event for
each building or unit of the contract, as instructed by the resident
engineer.
(1) The work activities/events shall be subdivided into as many
sub-activities/events as are necessary to cover all component parts of
the contract work.
(2) Costs as shown on this schedule must be true costs and the
resident engineer may require the Contractor to submit the original
estimate sheets or other information to substantiate the detailed
makeup of the schedule.
(3) The sums of the sub-activities/events, as applied to each work
activity/event, shall equal the total cost of such work activity/event.
The total cost of all work activities/events shall equal the contract
price.
(4) Insurance and similar items shall be prorated and included in
the cost of each branch of the work.
(5) The cost schedule shall include separate cost information for
the systems listed in the table in this paragraph (b)(5). The
percentages listed in the following table are proportions of the cost
listed in the Contractor's cost schedule and identify, for payment
purposes, the value of the work to adjust, correct and test systems
after the material has been installed. Payment of the listed
percentages will be made only after the Contractor has demonstrated
that each of the systems is substantially complete and operates as
required by the contract.
Value of Adjusting, Correcting, and Testing System
------------------------------------------------------------------------
System Percent
------------------------------------------------------------------------
Pneumatic tube system................................... 10
Incinerators (medical waste and trash).................. 5
Sewage treatment plant equipment........................ 5
Water treatment plant equipment......................... 5
Washers (dish, cage, glass, etc.)....................... 5
Sterilizing equipment................................... 5
Water distilling equipment.............................. 5
Prefab temperature rooms (cold, constant temperature)... 5
Entire air-conditioning system (Specified under 600 5
Sections)..............................................
Entire boiler plant system (Specified under 700 5
Sections)..............................................
General supply conveyors................................ 10
Food service conveyors.................................. 10
Pneumatic soiled linen and trash system................. 10
Elevators and dumbwaiters............................... 10
Materials transport system.............................. 10
Engine-generator system................................. 5
Primary switchgear...................................... 5
Secondary switchgear.................................... 5
Fire alarm system....................................... 5
Nurse call system....................................... 5
Intercom system......................................... 5
Radio system............................................ 5
TV (entertainment) system............................... 5
------------------------------------------------------------------------
(c) In addition to this cost schedule, the Contractor shall submit
such unit costs as may be specifically requested. The unit costs shall
be those used by the Contractor in preparing its bid and will not be
binding as pertaining to any contract changes.
(d) The Contracting Officer will consider for monthly progress
payments material and/or equipment procured by the Contractor and
stored on the construction site, as space is available, or at a local
approved location off the site, under such terms and conditions as the
Contracting Officer approves, including but not limited to the
following--
(1) The materials or equipment are in accordance with the contract
requirements and/or approved samples and shop drawings;
(2) The materials and/or equipment are approved by the resident
engineer;
(3) The materials and/or equipment are stored separately and are
readily available for inspection and inventory by the resident
engineer;
(4) The materials and/or equipment are protected against weather,
theft and other hazards and are not subjected to deterioration; and
(5) The Contractor obtains the concurrence of its surety for off-
site storage.
(e) The Government reserves the right to withhold payment until
samples, shop drawings, engineer's certificates, additional bonds,
payrolls, weekly statements of compliance, proof of title,
nondiscrimination compliance reports, or any other requirements of this
contract, have been submitted to the satisfaction of the Contracting
Officer.
(f) The Contracting Officer will notify the Contractor in writing
within 10 calendar-days of exercising retainage against any payment in
accordance with
[[Page 49309]]
FAR clause 52.232-5(e). The notice shall disclose the amount of the
retainage in value and percent retained from the payment, and provide
explanation for the retainage.
(End of clause)
Alternate I (Nov 2018). If the specifications include guarantee
period services, the Contracting Officer shall include the following
paragraphs as additions to paragraph (b) of the basic clause:
(6)(i) The Contractor shall at the time of contract award furnish
the total cost of the guarantee period services in accordance with
specification section(s) covering guarantee period services. The
Contractor shall submit, within 15 calendar days of receipt of the
notice to proceed, a guarantee period performance program that shall
include an itemized accounting of the number of work-hours required to
perform the guarantee period service on each piece of equipment. The
Contractor shall also submit the established salary costs, including
employee fringe benefits, and what the Contractor reasonably expects to
pay over the guarantee period, all of which will be subject to the
Contracting Officer's approval.
(ii) The cost of the guarantee period service shall be prorated on
an annual basis and paid in equal monthly payments by VA during the
period of guarantee. In the event the installer does not perform
satisfactorily during this period, all payments may be withheld and the
Contracting Officer shall inform the Contractor of the unsatisfactory
performance, allowing the Contractor 10 days to correct deficiencies
and comply with the contract. The guarantee period service is subject
to those provisions as set forth in the Payments and Default clauses.
0
34. Add section 852.232-71 to read as follows:
852.232-71 Payments Under Fixed-Price Construction Contracts
(Including NAS-CPM).
As prescribed in 832.111-70, insert the following clause in
contracts that contain a section entitled ``Network Analysis System--
Critical Path Method (NAS-CPM).''
Payments Under Fixed-Price Construction Contracts (Including NAS-CPM)
(Nov 2018)
The clause FAR 52.232-5, Payments Under Fixed-Price Construction
Contracts, is implemented as follows:
(a) Retainage. (1) The Contracting Officer may retain funds--
(i) Where performance under the contract has been determined to be
deficient or the Contractor has performed in an unsatisfactory manner
in the past; or
(ii) As the contract nears completion, to ensure that deficiencies
will be corrected and that completion is timely.
(2) Examples of deficient performance justifying a retention of
funds include, but are not restricted to, the following--
(i) Unsatisfactory progress as determined by the Contracting
Officer;
(ii) Failure to meet schedule in Schedule of Work Progress;
(iii) Failure to present submittals in a timely manner; or
(iv) Failure to comply in good faith with approved subcontracting
plans, certifications, or contract requirements.
(3) Any level of retention shall not exceed 10 percent either where
there is determined to be unsatisfactory performance, or when the
retainage is to ensure satisfactory completion. Retained amounts shall
be paid promptly upon completion of all contract requirements, but
nothing contained in this paragraph (a)(3) shall be construed as
limiting the Contracting Officer's right to withhold funds under other
provisions of the contract or in accordance with the general law and
regulations regarding the administration of Government contracts.
(b) The Contractor shall submit a schedule of costs in accordance
with the requirements of section ``Network Analysis System--Critical
Path Method (NAS-CPM)'' to the Contracting Officer for approval within
90 calendar days after date of receipt of notice to proceed. The
approved cost schedule will be one of the bases for determining
progress payments to the Contractor for work completed.
(1) Costs as shown on this schedule must be true costs and the
resident engineer may require the Contractor to submit its original
estimate sheets or other information to substantiate the detailed
makeup of the cost schedule.
(2) The total costs of all work activities/events shall equal the
contract price.
(3) Insurance and similar items shall be prorated and included in
each work activity/event cost of the critical path method (CPM).
(4) The CPM shall include a separate cost loaded activity for
adjusting and testing of the systems listed in the table in paragraph
(b)(5) of this clause. The percentages listed in paragraph (b)(5) will
be used to determine the cost of adjust and test work activities/events
and identify, for payment purposes, the value of the work to adjust,
correct and test systems after the material has been installed.
(5) Payment for adjust and test activities will be made only after
the Contractor has demonstrated that each of the systems is
substantially complete and operates as required by the contract.
Value of Adjusting, Correcting, and Testing System
------------------------------------------------------------------------
System Percent
------------------------------------------------------------------------
Pneumatic tube system................................... 10
Incinerators (medical waste and trash).................. 5
Sewage treatment plant equipment........................ 5
Water treatment plant equipment......................... 5
Washers (dish, cage, glass, etc.)....................... 5
Sterilizing equipment................................... 5
Water distilling equipment.............................. 5
Prefab temperature rooms (cold, constant temperature)... 5
Entire air-conditioning system (Specified under 600 5
Sections)..............................................
Entire boiler plant system (Specified under 700 5
Sections)..............................................
General supply conveyors................................ 10
Food service conveyors.................................. 10
Pneumatic soiled linen and trash system................. 10
Elevators and dumbwaiters............................... 10
Materials transport system.............................. 10
Engine-generator system................................. 5
Primary switchgear...................................... 5
Secondary switchgear.................................... 5
[[Page 49310]]
Fire alarm system....................................... 5
Nurse call system....................................... 5
Intercom system......................................... 5
Radio system............................................ 5
TV (entertainment) system............................... 5
------------------------------------------------------------------------
(c) In addition to this cost schedule, the Contractor shall submit
such unit costs as may be specifically requested. The unit costs shall
be those used by the Contractor in preparing its bid and will not be
binding as pertaining to any contract changes.
(d) The Contracting Officer will consider for monthly progress
payments material and/or equipment procured by the Contractor and
stored on the construction site, as space is available, or at a local
approved location off the site, under such terms and conditions as the
Contracting Officer approves, including but not limited to the
following--
(1) The materials or equipment are in accordance with the contract
requirements and/or approved samples and shop drawings;
(2) The materials and/or equipment are approved by the resident
engineer;
(3) The materials and/or equipment are stored separately and are
readily available for inspection and inventory by the resident
engineer;
(4) The materials and/or equipment are protected against weather,
theft and other hazards and are not subjected to deterioration; and
(5) The Contractor obtains the concurrence of its surety for off-
site storage.
(e) The Government reserves the right to withhold payment until
samples, shop drawings, engineer's certificates, additional bonds,
payrolls, weekly statements of compliance, proof of title,
nondiscrimination compliance reports, or any other requirements of this
contract, have been submitted to the satisfaction of the Contracting
Officer.
(f) The Contracting Officer will notify the Contractor in writing
within 10 calendar-days of exercising retainage against any payment in
accordance with FAR clause 52.232-5(e). The notice shall disclose the
amount of the retainage in value and percent retained from the payment,
and provide explanation for the retainage.
(End of clause)
Alternate I (Nov 2018). If the specifications include guarantee
period services, the Contracting Officer shall include the following
paragraphs as additions to paragraph (b) of the basic clause:
(6)(i) The Contractor shall show on the critical path method (CPM)
the total cost of the guarantee period services in accordance with the
guarantee period service section(s) of the specifications. This cost
shall be priced out when submitting the CPM cost loaded network. The
cost submitted shall be subject to the approval of the Contracting
Officer. The activity on the CPM shall have money only and not activity
time.
(ii) The Contractor shall submit with the CPM a guarantee period
performance program which shall include an itemized accounting of the
number of work-hours required to perform the guarantee period service
on each piece of equipment. The Contractor shall also submit the
established salary costs, including employee fringe benefits, and what
the Contractor reasonably expects to pay over the guarantee period, all
of which will be subject to the Contracting Officer's approval.
(iii) The cost of the guarantee period service shall be prorated on
an annual basis and paid in equal monthly payments by VA during the
period of guarantee. In the event the installer does not perform
satisfactorily during this period, all payments may be withheld and the
Contracting Officer shall inform the Contractor of the unsatisfactory
performance, allowing the Contractor 10 days to correct and comply with
the contract. The guarantee period service is subject to those
provisions as set forth in the Payments and Default clauses.
0
35. Section 852.232-72 is revised to read as follows:
852.232-72 Electronic Submission of Payment Requests.
As prescribed in 832.7001-2, insert the following clause:
Electronic Submission of Payment Requests (Nov 2018)
(a) Definitions. As used in this clause--
(1) Contract financing payment has the meaning given in FAR 32.001;
(2) Designated agency office means the office designated by the
purchase order, agreement, or contract to first receive and review
invoices. This office can be contractually designated as the receiving
entity. This office may be different from the office issuing the
payment;
(3) Electronic form means an automated system transmitting
information electronically according to the accepted electronic data
transmission methods and formats identified in paragraph (c) of this
clause. Facsimile, email, and scanned documents are not acceptable
electronic forms for submission of payment requests;
(4) Invoice payment has the meaning given in FAR 32.001; and
(5) Payment request means any request for contract financing
payment or invoice payment submitted by the Contractor under this
contract.
(b) Electronic payment requests. Except as provided in paragraph
(e) of this clause, the Contractor shall submit payment requests in
electronic form. Purchases paid with a Government-wide commercial
purchase card are considered to be an electronic transaction for
purposes of this rule, and therefore no additional electronic invoice
submission is required.
(c) Data transmission. A Contractor must ensure that the data
transmission method and format are through one of the following:
(1) VA's Electronic Invoice Presentment and Payment System at the
current website address provided in the contract.
(2) Any system that conforms to the X12 electronic data interchange
(EDI) formats established by the Accredited Standards Center (ASC) and
chartered by the American National Standards Institute (ANSI).
(d) Invoice requirements. Invoices shall comply with FAR 32.905.
(e) Exceptions. If, based on one of the circumstances in this
paragraph (e), the Contracting Officer directs that payment requests be
made by mail, the Contractor shall submit payment requests by mail
through the United States Postal Service to the designated agency
office. Submission of payment requests by mail may be required for--
[[Page 49311]]
(1) Awards made to foreign vendors for work performed outside the
United States;
(2) Classified contracts or purchases when electronic submission
and processing of payment requests could compromise the safeguarding of
classified or privacy information;
(3) Contracts awarded by Contracting Officers in the conduct of
emergency operations, such as responses to national emergencies;
(4) Solicitations or contracts in which the designated agency
office is a VA entity other than the VA Financial Services Center in
Austin, Texas; or
(5) Solicitations or contracts in which the VA designated agency
office does not have electronic invoicing capability as described
above.
(End of clause)
852.236-82 and 852.236-83 [Removed and Reserved]
0
36. Remove and reserve sections 852.236-82 and 852.236-83.
PART 870--SPECIAL PROCUREMENT CONTROLS
0
37. The authority citation for part 870 is revised to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.
870.112 and 870.113 [Removed]
0
38. Remove sections 870.112 and 870.113.
[FR Doc. 2018-18984 Filed 9-28-18; 8:45 am]
BILLING CODE 8320-01-P
