VA Acquisition Regulation: Competition Requirements, 1041-1046 [2018-28206]

Download as PDF Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this action. This action merely proposes to approve a state negative declaration submitted in response to a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rulemaking also is not subject to Executive Order 13045, ‘‘Protection of Children from Environmental Health Risks and Safety Risks’’ (62 FR 19885, April 23, 1997) because it proposes to approve a state submission in response to a Federal standard. This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Burden is defined at 5 CFR 1320.3(b). Environmental protection, Air pollution control, Administrative practice and procedure, Intergovernmental relations, Reporting and recordkeeping requirements, phosphate fertilizer plants. Dated: December 26, 2018. Edward H. Chu, Acting Regional Administrator, Region 7. 48 CFR Part 806 RIN 2900–AQ21 Department of Veterans Affairs. Proposed rule. The Department of Veterans Affairs (VA) is proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in Federal Acquisition Regulation (FAR), to remove procedural guidance that is internal to VA into the VA Acquisition Manual (VAAM), and to incorporate any new agency specific regulations or policies. These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors. The VAAM incorporates portions of the removed VAAR as well as other internal agency acquisition policy. VA will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are rewritten, will publish them in the Federal Register. VA will combine related topics, as appropriate. In particular, this rulemaking revises the VAAR concerning Competition Requirements. DATES: Comments must be received on or before April 2, 2019 to be considered in the formulation of the final rule. SUMMARY: 1. The authority citation for part 62 continues to read as follows: Authority: 42 U.S.C. 7401 et seq. Subpart AA—Missouri 2. Amend § 62.6350 by adding paragraph (b)(7) and revising paragraph (c) to read as follows: ■ Identification of plan. * * * * (b) * * * (7) A revision to Missouri’s 111(d) plan for control of fluoride emissions from existing phosphate fertilizer plants was state effective on September 30, 2018 and was submitted to the EPA on December 3, 2018. Submission included a negative declaration, dated December 3, 2018, supporting state documentation, and request for the EPA to withdraw the EPA’s prior plan Jkt 247001 DEPARTMENT OF VETERANS AFFAIRS ACTION: ■ 16:27 Jan 31, 2019 [FR Doc. 2019–00782 Filed 1–31–19; 8:45 am] AGENCY: PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS VerDate Sep<11>2014 Letter from the Missouri Department of of Natural Resources, submitted December 3, 2018, certifying that there are no Diammonium Phosphate Ferilizer Units subject to 40 CFR part 60, subpart V. Effective date: The effective date of the negative declaration and EPA withdrawal of the prior plan approval is [DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE IN THE Federal Register]. VA Acquisition Regulation: Competition Requirements For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 62 as set forth below: * § 62.6351 Identification of plan—negative declaration. BILLING CODE 6560–50–P List of Subjects in 40 CFR Part 62 § 62.6350 approval for existing Diammonium Phosphate Fertilizer Units. (c) Designated facilities. The plan applies to existing facilities in the following categories of sources: (1) Primary aluminum reduction plants. (2) Sulfuric acid production plants. ■ 3. Section 62.6351 is revised to read as follows: PO 00000 Frm 00062 Fmt 4702 Sfmt 4702 1041 Written comments may be submitted through www.Regulations.gov; by mail or handdelivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW, Room 1063B, Washington, DC 20420; or by fax to (202) 273–9026. (This is not a toll-free number.) Comments should indicate that they are submitted in response to ‘‘RIN 2900– AQ21 VA Acquisition Regulation: Competition Requirements.’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461–4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Mr. Rafael N. Taylor, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382–2787. (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: ADDRESSES: Background This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR. VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any redundant guidance and guidance that is applicable only to VA’s internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. All amendments, revisions, and removals have been reviewed and concurred with by VA’s Integrated Product Team of agency stakeholders. The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are consistent with the FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, and sections. The Office of Federal Procurement Policy Act, as codified in 41 U.S.C. 1707, provides the authority for the Federal Acquisition Regulation and for the issuance of agency acquisition regulations consistent with the FAR. When Federal agencies acquire supplies and services using E:\FR\FM\01FEP1.SGM 01FEP1 1042 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules appropriated funds, the purchase is governed by the FAR, set forth at Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873. Discussion and Analysis VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal has been considered for inclusion in VA’s internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authority that are removed from the VAAR will be included in VA Acquisition Manual (VAAM) as internal departmental guidance. The VAAM is being created in parallel with these revisions to the VAAR and is not subject to the rulemaking process as they are internal VA procedures and guidance. Therefore, the VAAM will not be finalized until corresponding VAAR parts are finalized, and the VAAM is not yet available on line. VAAR Part 806—Competition Requirements This proposed rule would revise the authority citations pertaining to part 806 to include a reference to 41 U.S.C. 1121(c)(3), which is from Title 41, Public Contracts, and speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. We also propose to revise the part 806 authorities to add 41 U.S.C. 1303, an updated positive law codification to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA, and to add 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA’s Chief Acquisition Officer. We also propose to include a reference to 41 U.S.C. 3304 as the basic authority to award contracts by other than full and open competition. Any other proposed changes to authorities or additional authorities are shown under VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 the individual sections as described in the preamble and reflected in the amendatory language. We also propose to remove 38 U.S.C. 501 as it is a more general authority for the Secretary to utilize to prescribe all rules and regulations. The title 41 authority is more appropriate to cite when publishing the VAAR. We propose to add 806.004–70, Definition, to establish that as used in part 806, ‘‘health-care resource(s)’’ has the same definition as that provided in VAAR 873.102. VAAR 873.102 provides that ‘‘health-care resource’’ includes hospital care and medical services (as those terms are defined in section 1701 of title 38 United States Code (U.S.C.)), any other health-care service, and any health-care support or administrative resource, including the use of medical equipment or space. (38 U.S.C. 8153). A future rule may contain revisions to VAAR part 873 which also might include any updated definition for ‘‘health-care resource.’’ We propose to add subpart 806.1— Full and Open Competition, and section 806.102, Use of competitive procedures, to address the application of 38 U.S.C. 8127 to competitive General Services Administration (GSA) and VA Federal Supply Schedules. We propose to add subpart 806.2— Full and Open Competition After Exclusion of Sources, which would contain two sections: 806.203, Setasides for small business concerns, which directs attention to subparts 819.5 and 819.70 for VA’s policies on set-asides for small business concerns, and 806.270, Set-asides for verified Veteran-owned small businesses. In 806.270, we propose to set-forth VA’s authority under VA’s supplement to FAR part 6—VAAR part 806, and the requirement mandated by 38 U.S.C. 8127, to conduct set-asides for Veteranowned small businesses whenever market research provides the contracting officer with a reasonable expectation of receiving two or more offers/quotes from eligible and verified service-disabled veteran-owned small businesses (SDVOSBs) or veteranowned small businesses (VOSBs), and award can be made at a fair and reasonable price that offers best value to the Government (VA Rule of Two). This section would also state that the requirement to set aside procurements for Veteran-owned small businesses applies to all contracts under this regulation, including orders under interagency acquisition vehicles such as the Federal Supply Schedules (FSS), Governmentwide acquisition contracts (GWACs), and multi-agency contracts. We propose to also include language in PO 00000 Frm 00063 Fmt 4702 Sfmt 4702 paragraph (c) that contracting officers shall utilize the authority in paragraph (a), for set-asides to verified SDVOSBs and VOSBs, over other set-asides authorized in FAR subpart 6.2. The reason is the statutory requirement in 38 U.S.C. 8127–8128 for the VA Rule of Two which provides VA a unique authority for set-asides that includes both categories of Veteran-owned small businesses. While FAR 6.206, Set-asides for service-disabled veteran-owned small business concerns, does provide for an SDVOSB set-aside, SDVOSBs who may receive contract awards under that authority self-represent their status, whereas eligibility for and participation in the VA SDVOSB set-aside program requires verification and inclusion in the VA, Office of Small and Disadvantaged Business Utilization (OSDBU), Center for Verification and Evaluation, Vendor Information Pages (VIP). Additionally, the FAR does not have a specific set-aside program for VOSBs, while VA does, which also requires that in order to be eligible for and to participate in the program, VOSBs must also go through a thorough verification program and be included in VA OSBDU’s VIP. This section also proposes to include language that would provide that for Indefinite-Delivery contracts, when a set-aside is restricted to verified SDVOSBs or VOSBs, it satisfies competition requirements. In subpart 806.3—Other Than Full and Open Competition, we propose to revise the entire subpart to add specific reference to VA’s authority for noncompetitive procedures for verified Veteran-owned small businesses and to clarify existing authorities regarding such noncompetitive procedures. The revised subpart would also clarify existing statutory authority for other VA unique authorities and update new Title 41 citations and require other specific citation requirements. We propose to amend section 806.302, Circumstances permitting other than full and open competition, to add several sections. We propose to revise 806.302–5, Authorized or required by statute, to remove its text and retain the title. The removed text has been revised and moved to 806.302–571. Under 806.302–5, we propose to add two sections: 806.302–570 and 806.302– 571. We propose to add 806.302–570, Noncompetitive procedures for verified Veteran-owned small businesses, to provide coverage of the authority to enter into contracts non-competitively, when specifically authorized under the VA Veterans First Contracting Program in accordance with VAAR 819.7007 or 819.7008. Paragraph (a) provides that justification and approval requirements E:\FR\FM\01FEP1.SGM 01FEP1 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules of FAR 6.303 and 6.304, and internal agency review and approval thresholds set forth in VA internal procedures apply. Paragraph (b) provides the required updated 41 U.S.C. 3304(a)(5) citation, the specific authority under 38 U.S.C. 8127(b), and states that contracting officers may award a contract to a VIP verified SDVOSB first, then VOSB, using other than full and open competition, for contracts at or below the Simplified Acquisition Threshold (SAT). Paragraph (c) provides the proposed noncompetitive procedures for contracts above the SAT, as well as specific limitations that apply for actions over the SAT: the proposed SDVOSB or VOSB business must be responsible; the anticipated award price of the contract, including options, will exceed the SAT, but will not exceed $5 million; and, contract award can be made at a fair and reasonable price that offers best value to the United States. We also propose to add 806.302–571, Authorized or required by statute—VA unique authorities, which would contain the statutes previously listed in 806.302–5 and provide policy under the statutes to make awards by other than full and open competition. Paragraph (a) provides the updated Title 41 authority—41 U.S.C. 3304(a)(5), updated from the moved coverage under 806.302–5. Paragraph (b)(1) would provide that full and open competition is not required for the acquisition of prosthetic appliances and services based on the authority under 38 U.S.C. 8123. Paragraph (b)(2) would provide the existing policy for the acquisition of commercial health-care resources, use of medical equipment or space, or research acquired from an institution affiliated with VA under the authority set forth in 38 U.S.C. 8153(a)(3)(A). Paragraph (b)(3) would provide policy for the acquisition of commercial health-care resources, use of medical equipment or space from other than an affiliated institution, but only when conducted in accordance with simplified procedures in VAAR part 873, Simplified Acquisition Procedures for Health-Care Resources, under the authority set forth in 38 U.S.C. 8153(a)(3)(B). Paragraph (b)(4) would provide the authority under 38 U.S.C. 8153(a)(3)(C) for the sole source acquisition of commercial health-care resources, the use of medical equipment or space, when not acquired from an affiliated institution in accordance with paragraph (b)(2). The justification and approval requirements of FAR 6.303 and agency internal review procedures apply. 806.302–571, paragraph (c), would require that contracts awarded using the authority set forth under paragraph (a), VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 with the exception of acquisitions authorized under paragraph (b)(2) of this section, shall be supported by the written justifications and approvals described in FAR 6.303 and 6.304, and VA internal agency procedures. 806.302–571, paragraph (d), would incorporate an updated Title 41 citation reference: 41 U.S.C. 3304(a)(5), and would also permit VA to procure certain supplies and services and require contracting officers, pursuant to FAR 6.302–5(c)(2)(ii), to comply with written justification and approval requirements set forth in FAR 6.303 and 6.304, citing 41 U.S.C. 3304(a)(5) and the applicable statute. Specifically, 806.302–571(d) contains authorities previously under 806.302–5 and would continue existing policy to allow VA to continue to enter into contracts for the following: Scarce medical specialist services through contracts with 1) schools and colleges of medicine, osteopathy, dentistry, podiatry, optometry, and nursing; 2) clinics; and 3) any other group or individual capable of furnishing such scarce medical specialist services at VA facilities, to include the services of physicians, dentists, podiatrists, optometrists, chiropractors, nurses, physician assistants, expanded-function dental auxiliaries, technicians, and other medical support personnel, in accordance with the authority of 38 U.S.C. 7409. We also propose to remove language that was previously codified that restricted such contracts to institutions affiliated with VA under 38 U.S.C. 7302 as no such restriction is contained in the statute for 38 U.S.C. 7409; Purchase or sell merchandise, equipment, fixtures, supplies and services for the operation of the Veterans Canteen Service under the authority of 38 U.S.C. 7802(f); Contracts or leases for the operation of parking facilities authorized by the Secretary or designee under the authority of 38 U.S.C. 8109(f); Contracts for laundry and other common services, such as the purchase of steam, negotiated with non-profit, tax-exempt educational, medical, or community institutions, under the authority of 38 U.S.C. 8122(c), when specifically approved by the Secretary or designee and when such services are not reasonably available from private commercial sources; and Contracts or agreements with private or public agencies or persons, including contracts for services of translators under the authority of 38 U.S.C. 513. We propose to remove the authority currently listed in 806.302–5(a)(1), concerning VA ability to procure scarce PO 00000 Frm 00064 Fmt 4702 Sfmt 4702 1043 medical specialist services, as an exception to full and open competition and place this authority in 806.302– 571(d)(1) to require a written justification and approval before procuring services using the 38 U.S.C. 7409 authority. While 38 U.S.C. 7409 states that VA may procure scarce medical specialist services from certain persons and institutions identified in the statute, the statute does not contain language which expressly exempts these types of procurements from the competition requirements found in 41 U.S.C. 3301 et. seq. We propose to require that the use of this authority comply with written justification and approval requirements set forth in FAR 6.303 and 6.304 and cite 41 U.S.C. 3304(a)(5) and 38 U.S.C. 7409.We propose to remove 806.302–7, Public interest, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM. We propose to remove 806.304, Approval of the justification, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM. We propose to revise subpart 806.5— Competition Advocates, to amend the title to Advocates for Competition to conform to the revised title in FAR part 6. We propose to revise 806.501, Requirement, to identify the Deputy Senior Procurement Executive as the VA Advocate for Competition. We propose to remove 806.570, Planning requirements, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM. Effect of Rulemaking Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent VA’s implementation of its legal authority and publication of the VAAR for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with FAR subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or E:\FR\FM\01FEP1.SGM 01FEP1 1044 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules procedures would be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts. Executive Orders 12866, 13563 and 13771 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory Planning and Review defines ‘‘significant regulatory action’’ to mean any regulatory action that is likely to result in a rule that may: ‘‘(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive order.’’ VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined this rule is a significant regulatory action under E.O. 12866, because it may create a serious inconsistency or otherwise interfere with an action taken or planned by another agency and raises novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in this Executive order. VA’s impact analysis can be found as a supporting document at http:// www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA’s website at http:// www.va.gov/orpm by following the link VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 for VA Regulations Published from FY 2004 Through Fiscal Year to Date. This proposed rule is not expected to be subject to the requirements of E.O. 13771 because this proposed rule is expected to result in no more than de minimis costs. Paperwork Reduction Act This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– 3521). Regulatory Flexibility Act This proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601–612. This proposed rule would generally be small business neutral. The overall impact of the proposed rule would be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA’s internal operating procedures. VA estimates that no cost impact to individual business would result from these rule updates. On this basis, the adoption of this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601– 612. Therefore, under 5 U.S.C. 605(b), this regulatory action is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal Governments or on the private sector. List of Subjects in 48 CFR Part 806 Government procurement. 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, PO 00000 Frm 00065 Fmt 4702 Sfmt 4702 Secretary, Department of Veterans Affairs, approved this document on October 29, 2018, for publication. Dated: December 21, 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 proposes to revise 48 CFR part 806 to read as follows: ■ PART 806—COMPETITION REQUIREMENTS Sec. 806.004–70 Definition. Subpart 806.1—Full and Open Competition 806.102 Use of competitive procedures. Subpart 806.2—Full and Open Competition After Exclusion of Sources 806.203 Set-asides for small business concerns. 806.270 Set-asides for verified Veteranowned small businesses. Subpart 806.3—Other Than Full and Open Competition 806.302 Circumstances permitting other than full and open competition. 806.302–5 Authorized or required by statute. 806.302–570 Noncompetitive procedures for verified Veteran-owned small businesses. 806.302–571 Authorized or required by statute—VA unique authorities. Subpart 806.5—Advocates for Competition 806.501 Requirement. Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1303; 41 U.S.C. 1702; 41 U.S.C. 3304; and 48 CFR 1.301–1.304. 806.004–70 Definition. As used in this part— Health-care resources has the same definition as that provided in VAAR 873.102. Subpart 806.1—Full and Open Competition 806.102 Use of competitive procedures. (d)(3) Awards made using General Services Administration (GSA) or Department of Veterans Affairs (VA) Federal Supply Schedules (FSS) are considered competitive when awarded in accordance with the procedures specified in FAR part 8 and this part. Subpart 806.2—Full and Open Competition After Exclusion of Sources 806.203 Set-asides for small business concerns. (c) Subpart 819.5 and subpart 819.70 prescribe the policies and procedures E:\FR\FM\01FEP1.SGM 01FEP1 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules that shall be followed with respect to set-asides for small business and Veteran-owned small business concerns. 806.270 Set-asides for verified Veteranowned small businesses. (a) To fulfill the statutory requirements relating to Public Law 109–461, the Veterans Benefits, Health Care and Information Technology Act of 2006 (38 U.S.C. 8127–8128), contracting officers shall set aside solicitations in accordance with 819.70 and the VA Rule of Two (see 802.101) for Vendor Information Pages (VIP) verified servicedisabled Veteran-owned small businesses (SDVOSBs) and Veteranowned small businesses (VOSBs) (see 819.7005 and 819.7006). (38 U.S.C. 8127–8128) (b) This requirement to set aside procurements for VIP verified SDVOSBs and VOSBs applies to all types of contracts, including orders placed under GSA’s Federal Supply Schedules (FSS) and indefinite-delivery contracts, including Governmentwide acquisition contracts (GWACs). (38 U.S.C. 8127– 8128) Subpart 806.3—Other Than Full and Open Competition 806.302 Circumstances permitting other than full and open competition. 806.302–5 statute. Authorized or required by 806.302–570 Noncompetitive procedures for verified Veteran-owned small businesses. (a) Full and open competition need not be provided for when awarding a sole source contract under (b) or (c) of this section, to a verified SDVOSB or VOSB in accordance with 819.7007 or 819.7008, respectively, as authorized. Contracts awarded using this authority shall be supported by justification and approval requirements of FAR 6.302– 5(c)(2)(ii), 6.303 and 6.304. (b) Sole source awards below the Simplified Acquisition Threshold. (Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 8127(b)). A contracting officer may award a contract under this authority to a VIP verified SDVOSB first, then VOSB if no SDVOSBs can fulfill the need, for an amount less than the simplified acquisition threshold, using procedures other than full and open competition. (38 U.S.C. 8127) (c) Sole source awards above the Simplified Acquisition Threshold. (Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 8127(c)). A contracting officer may award a contract to a VIP verified SDVOSB first, then VOSB if no SDVOSB can satisfy the VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 need, using procedures other than full and open competition when— (1) Such concern is determined to be a responsible source with respect to performance of such contract opportunity; (2) The anticipated award price of the contract (including options) will exceed the simplified acquisition threshold, but will not exceed $5 million; and (3) Contract award can be made at a fair and reasonable price that offers best value to the United States. (38 U.S.C. 8127) 806.302–571 Authorized or required by statute—VA unique authorities. (a) Authority. (1) Citation: 41 U.S.C. 3304(a)(5). Contracting officers shall also cite the specific authorities in paragraph (b) below for the statutes related to the products and services procured. (2) Full and open competition need not be provided for when—a statute expressly authorizes or requires that the acquisition be made through another agency or from a specified source. (b) Application. The following products and services are authorized to be acquired from a specified source: (1) Prosthetic appliances and services. Contracting activities may procure prosthetic appliances and necessary services required in the fitting, supplying, and training and use of prosthetic appliances by purchase, manufacture, contract, or in such other manner as determined to be proper, without regard to any other provision of law as set forth in VA directives governing prosthetic appliances, sensory aids and services supporting the same. (38 U.S.C. 8123) (2) Commercial health-care resources, the use of medical equipment or space, or research, and acquired from an institution affiliated with the Department of Veterans Affairs. Contracting activities may procure health care resources, including medical practice groups and other approved entities associated with affiliated institutions, blood banks, organ banks, or research centers from an affiliated institution affiliated with VA in accordance with 38 U.S.C. 7302. Medical practice groups and other entities shall be approved when determined by the contracting activity to be legally associated with affiliated institutions. The justification and approval requirements of FAR 6.303 and paragraph (c) of this section do not apply. (38 U.S.C. 8153(a)(3)(A)) (3) Commercial health-care resources, the use of medical equipment or space, and is not to be acquired from an entity described in (b)(2) of this section. PO 00000 Frm 00066 Fmt 4702 Sfmt 4702 1045 Contracting activities may procure health care resources from a nonaffiliated institution only if the procurement is conducted in accordance with the simplified procedures prescribed in part 873. The justification and approval requirements of FAR 6.303 shall apply. (38 U.S.C. 8153(a)(3)(B)) (4) Commercial health-care resources, the use of medical equipment or space, when not acquired from an affiliated institution described in (b)(2) of this section and to be conducted on a sole source basis. This authority applies if not acquired from an affiliated institution in accordance with part 873. The justification and approval requirements of FAR 6.303 shall apply. (38 U.S.C. 8153(a)(3)(C)) (c) Contracts awarded using this authority, with the exception of acquisitions authorized under paragraph (b)(2) of this section, shall be supported by the written justifications and approvals described in FAR 6.303 and 6.304. (d) When a contracting officer enters into a contract without providing full and open competition for any of the following items or services, the contracting officer must cite 41 U.S.C. 3304(a)(5) and the following authorities that apply, in the written justifications and approvals as required by FAR 6.303 and 6.304: (1) Contracts for scarce medical specialist services. (Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 7409). Contracting officers may enter into contracts with (1) schools and colleges of medicine, osteopathy, dentistry, podiatry, optometry, and nursing; (2) clinics; and (3) any other group or individual capable of furnishing such scarce medical specialist services at VA facilities, to include the services of physicians, dentists, podiatrists, optometrists, chiropractors, nurses, physician assistants, expanded-function dental auxiliaries, technicians, and other medical support personnel. (38 U.S.C. 7409) (2) Contracts or agreements to purchase or sell merchandise, equipment, fixtures, supplies and services for the operation of the Veterans Canteen Service. (Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 7802(f)). Contracts or agreements may be entered into without regard to 41 U.S.C. 6101(b) through (d). (3) Contracts or leases for the operation of parking facilities established under authority of 38 U.S.C. 8109(b). (Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 8109(f)). Contracts or leases may be entered into E:\FR\FM\01FEP1.SGM 01FEP1 1046 Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Proposed Rules provided that the establishment, operation, and maintenance of such facilities have been authorized by the Secretary or designee. (4) Contracts for laundry and other common services, such as the purchase of steam, negotiated with non-profit, tax-exempt educational, medical, or community institutions. (Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 8122(c)). Contracts may be entered into when specifically approved by the Secretary or designee and when such services are not reasonably available from private commercial sources. (5) Contracts or agreements with private or public agencies or persons for translator services. (Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 513). Subpart 806.5—Advocates for Competition 806.501 Requirement. The Deputy Senior Procurement Executive (DSPE) is designated as the VA Advocate for Competition. The DSPE may further delegate this authority to other VA officials. A complete list of VA procuring activity Advocates for Competition can be found at https://www.va.gov/oal/business/pps/ policy.asp. [FR Doc. 2018–28206 Filed 1–31–19; 8:45 am] BILLING CODE 8320–01–P VerDate Sep<11>2014 16:27 Jan 31, 2019 Jkt 247001 SURFACE TRANSPORTATION BOARD 49 CFR Parts 1002 and 1312 [Docket No. EP 743] Water Carrier Tariff Filing Procedures Surface Transportation Board. Notice. AGENCY: ACTION: The Board provides notice that comments to this notice of proposed rulemaking due to the Board during the partial Federal government shutdown period will now be due by February 4, 2019. DATES: Comments on the proposed rule are due by February 4, 2019. Reply comments are due by March 4, 2019. ADDRESSES: Comments may be submitted either via the Board’s e-filing format or in paper format. Any person using e-filing should attach a document and otherwise comply with the instructions found on the Board’s website at www.stb.gov at the E–FILING link. Any person submitting a filing in paper format should send an original and 10 paper copies of the filing to: Surface Transportation Board, Attn: Docket No. EP 743, 395 E Street SW, Washington, DC 20423–0001. Written comments and replies will be posted on the Board’s website and can also be obtained by contacting the Office of Public Assistance, Governmental Affairs, and Compliance (OPAGAC) at RCPA@stb.gov or (202) 245–0238. FOR FURTHER INFORMATION CONTACT: Michael Higgins at 202–245–0284. Assistance for the hearing impaired is available through the Federal SUMMARY: PO 00000 Frm 00067 Fmt 4702 Sfmt 9990 Information Relay Service (FIRS) at 1– 800–877–8339. SUPPLEMENTARY INFORMATION: In a notice of proposed rulemaking (NPRM) served on December 21, 2018, the Board proposed new procedures for water carriers operating in the noncontiguous domestic trade to electronically publish, file, and keep tariffs available for public inspection. Notice of the proposed rulemaking was published in the Federal Register on December 26, 2018 (83 FR 66229). In the NPRM, the Board directed comments to be submitted by January 25, 2019, and reply comments to be submitted by February 25, 2019. During the partial shutdown of the Federal government from December 22, 2018 through January 25, 2019, all deadlines requiring the submission of material to the Board, including the deadlines in this proceeding, were tolled. Comments on the NPRM will be due by February 4, 2019, and reply comments will be due by March 4, 2019. It is ordered: 1. Comments are due by February 4, 2019. Reply comments are due by March 4, 2019. 2. Notice of this decision will be published in the Federal Register. 3. This decision is effective on its service date. Decided: January 29, 2019. By the Board, Allison C. Davis, Acting Director, Office of Proceedings. Jeffrey Herzig, Clearance Clerk. [FR Doc. 2019–00788 Filed 1–31–19; 8:45 am] BILLING CODE 4915–01–P E:\FR\FM\01FEP1.SGM 01FEP1

Agencies

[Federal Register Volume 84, Number 22 (Friday, February 1, 2019)]
[Proposed Rules]
[Pages 1041-1046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-28206]


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DEPARTMENT OF VETERANS AFFAIRS

48 CFR Part 806

RIN 2900-AQ21


VA Acquisition Regulation: Competition Requirements

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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

DATES: Comments must be received on or before April 2, 2019 to be 
considered in the formulation of the final rule.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue NW, Room 1063B, Washington, DC 20420; or by fax to (202) 
273-9026. (This is not a toll-free number.) Comments should indicate 
that they are submitted in response to ``RIN 2900-AQ21 VA Acquisition 
Regulation: Competition Requirements.'' Copies of comments received 
will be available for public inspection in the Office of Regulation 
Policy and Management, Room 1063B, between the hours of 8:00 a.m. and 
4:30 p.m., Monday through Friday (except holidays). Please call (202) 
461-4902 for an appointment. (This is not a toll-free number.) In 
addition, during the comment period, comments may be viewed online 
through the Federal Docket Management System (FDMS) at 
www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Rafael N. Taylor, Senior 
Procurement Analyst, Procurement Policy and Warrant Management 
Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382-
2787. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: 

Background

    This rulemaking is issued under the authority of the Office of 
Federal Procurement Policy (OFPP) Act which provides the authority for 
an agency head to issue agency acquisition regulations that implement 
or supplement the FAR.
    VA is proposing to revise the VAAR to add new policy or regulatory 
requirements and to remove any redundant guidance and guidance that is 
applicable only to VA's internal operating processes or procedures. 
Codified acquisition regulations may be amended and revised only 
through rulemaking. All amendments, revisions, and removals have been 
reviewed and concurred with by VA's Integrated Product Team of agency 
stakeholders.
    The VAAR uses the regulatory structure and arrangement of the FAR 
and headings and subject areas are consistent with the FAR content. The 
VAAR is divided into subchapters, parts (each of which covers a 
separate aspect of acquisition), subparts, and sections.
    The Office of Federal Procurement Policy Act, as codified in 41 
U.S.C. 1707, provides the authority for the Federal Acquisition 
Regulation and for the issuance of agency acquisition regulations 
consistent with the FAR.
    When Federal agencies acquire supplies and services using

[[Page 1042]]

appropriated funds, the purchase is governed by the FAR, set forth at 
Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 
53, and the agency regulations that implement and supplement the FAR. 
The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873.

Discussion and Analysis

    VA proposes to make the following changes to the VAAR in this phase 
of its revision and streamlining initiative. For procedural guidance 
cited below that is proposed to be deleted from the VAAR, each section 
cited for removal has been considered for inclusion in VA's internal 
agency operating procedures in accordance with FAR 1.301(a)(2). 
Similarly, delegations of authority that are removed from the VAAR will 
be included in VA Acquisition Manual (VAAM) as internal departmental 
guidance. The VAAM is being created in parallel with these revisions to 
the VAAR and is not subject to the rulemaking process as they are 
internal VA procedures and guidance. Therefore, the VAAM will not be 
finalized until corresponding VAAR parts are finalized, and the VAAM is 
not yet available on line.

VAAR Part 806--Competition Requirements

    This proposed rule would revise the authority citations pertaining 
to part 806 to include a reference to 41 U.S.C. 1121(c)(3), which is 
from Title 41, Public Contracts, and speaks to the authority of an 
executive agency under another law to prescribe policies, regulations, 
procedures, and forms for procurement that are subject to the authority 
conferred in the cited section, as well as other sections of Title 41 
as shown therein.
    We also propose to revise the part 806 authorities to add 41 U.S.C. 
1303, an updated positive law codification to reflect additional 
authority of the VA as an executive agency to issue regulations that 
are essential to implement Governmentwide policies and procedures in 
the agency, as well as to issue additional policies and procedures 
required to satisfy the specific needs of the VA, and to add 41 U.S.C. 
1702, which addresses overall direction of procurement policy, 
acquisition planning and management responsibilities of VA's Chief 
Acquisition Officer.
    We also propose to include a reference to 41 U.S.C. 3304 as the 
basic authority to award contracts by other than full and open 
competition. Any other proposed changes to authorities or additional 
authorities are shown under the individual sections as described in the 
preamble and reflected in the amendatory language. We also propose to 
remove 38 U.S.C. 501 as it is a more general authority for the 
Secretary to utilize to prescribe all rules and regulations. The title 
41 authority is more appropriate to cite when publishing the VAAR.
    We propose to add 806.004-70, Definition, to establish that as used 
in part 806, ``health-care resource(s)'' has the same definition as 
that provided in VAAR 873.102. VAAR 873.102 provides that ``health-care 
resource'' includes hospital care and medical services (as those terms 
are defined in section 1701 of title 38 United States Code (U.S.C.)), 
any other health-care service, and any health-care support or 
administrative resource, including the use of medical equipment or 
space. (38 U.S.C. 8153). A future rule may contain revisions to VAAR 
part 873 which also might include any updated definition for ``health-
care resource.''
    We propose to add subpart 806.1--Full and Open Competition, and 
section 806.102, Use of competitive procedures, to address the 
application of 38 U.S.C. 8127 to competitive General Services 
Administration (GSA) and VA Federal Supply Schedules.
    We propose to add subpart 806.2--Full and Open Competition After 
Exclusion of Sources, which would contain two sections: 806.203, Set-
asides for small business concerns, which directs attention to subparts 
819.5 and 819.70 for VA's policies on set-asides for small business 
concerns, and 806.270, Set-asides for verified Veteran-owned small 
businesses.
    In 806.270, we propose to set-forth VA's authority under VA's 
supplement to FAR part 6--VAAR part 806, and the requirement mandated 
by 38 U.S.C. 8127, to conduct set-asides for Veteran-owned small 
businesses whenever market research provides the contracting officer 
with a reasonable expectation of receiving two or more offers/quotes 
from eligible and verified service-disabled veteran-owned small 
businesses (SDVOSBs) or veteran-owned small businesses (VOSBs), and 
award can be made at a fair and reasonable price that offers best value 
to the Government (VA Rule of Two). This section would also state that 
the requirement to set aside procurements for Veteran-owned small 
businesses applies to all contracts under this regulation, including 
orders under interagency acquisition vehicles such as the Federal 
Supply Schedules (FSS), Governmentwide acquisition contracts (GWACs), 
and multi-agency contracts. We propose to also include language in 
paragraph (c) that contracting officers shall utilize the authority in 
paragraph (a), for set-asides to verified SDVOSBs and VOSBs, over other 
set-asides authorized in FAR subpart 6.2. The reason is the statutory 
requirement in 38 U.S.C. 8127-8128 for the VA Rule of Two which 
provides VA a unique authority for set-asides that includes both 
categories of Veteran-owned small businesses. While FAR 6.206, Set-
asides for service-disabled veteran-owned small business concerns, does 
provide for an SDVOSB set-aside, SDVOSBs who may receive contract 
awards under that authority self-represent their status, whereas 
eligibility for and participation in the VA SDVOSB set-aside program 
requires verification and inclusion in the VA, Office of Small and 
Disadvantaged Business Utilization (OSDBU), Center for Verification and 
Evaluation, Vendor Information Pages (VIP). Additionally, the FAR does 
not have a specific set-aside program for VOSBs, while VA does, which 
also requires that in order to be eligible for and to participate in 
the program, VOSBs must also go through a thorough verification program 
and be included in VA OSBDU's VIP. This section also proposes to 
include language that would provide that for Indefinite-Delivery 
contracts, when a set-aside is restricted to verified SDVOSBs or VOSBs, 
it satisfies competition requirements.
    In subpart 806.3--Other Than Full and Open Competition, we propose 
to revise the entire subpart to add specific reference to VA's 
authority for noncompetitive procedures for verified Veteran-owned 
small businesses and to clarify existing authorities regarding such 
noncompetitive procedures. The revised subpart would also clarify 
existing statutory authority for other VA unique authorities and update 
new Title 41 citations and require other specific citation 
requirements.
    We propose to amend section 806.302, Circumstances permitting other 
than full and open competition, to add several sections. We propose to 
revise 806.302-5, Authorized or required by statute, to remove its text 
and retain the title. The removed text has been revised and moved to 
806.302-571.
    Under 806.302-5, we propose to add two sections: 806.302-570 and 
806.302-571. We propose to add 806.302-570, Noncompetitive procedures 
for verified Veteran-owned small businesses, to provide coverage of the 
authority to enter into contracts non-competitively, when specifically 
authorized under the VA Veterans First Contracting Program in 
accordance with VAAR 819.7007 or 819.7008. Paragraph (a) provides that 
justification and approval requirements

[[Page 1043]]

of FAR 6.303 and 6.304, and internal agency review and approval 
thresholds set forth in VA internal procedures apply. Paragraph (b) 
provides the required updated 41 U.S.C. 3304(a)(5) citation, the 
specific authority under 38 U.S.C. 8127(b), and states that contracting 
officers may award a contract to a VIP verified SDVOSB first, then 
VOSB, using other than full and open competition, for contracts at or 
below the Simplified Acquisition Threshold (SAT). Paragraph (c) 
provides the proposed noncompetitive procedures for contracts above the 
SAT, as well as specific limitations that apply for actions over the 
SAT: the proposed SDVOSB or VOSB business must be responsible; the 
anticipated award price of the contract, including options, will exceed 
the SAT, but will not exceed $5 million; and, contract award can be 
made at a fair and reasonable price that offers best value to the 
United States.
    We also propose to add 806.302-571, Authorized or required by 
statute--VA unique authorities, which would contain the statutes 
previously listed in 806.302-5 and provide policy under the statutes to 
make awards by other than full and open competition. Paragraph (a) 
provides the updated Title 41 authority--41 U.S.C. 3304(a)(5), updated 
from the moved coverage under 806.302-5. Paragraph (b)(1) would provide 
that full and open competition is not required for the acquisition of 
prosthetic appliances and services based on the authority under 38 
U.S.C. 8123. Paragraph (b)(2) would provide the existing policy for the 
acquisition of commercial health-care resources, use of medical 
equipment or space, or research acquired from an institution affiliated 
with VA under the authority set forth in 38 U.S.C. 8153(a)(3)(A). 
Paragraph (b)(3) would provide policy for the acquisition of commercial 
health-care resources, use of medical equipment or space from other 
than an affiliated institution, but only when conducted in accordance 
with simplified procedures in VAAR part 873, Simplified Acquisition 
Procedures for Health-Care Resources, under the authority set forth in 
38 U.S.C. 8153(a)(3)(B). Paragraph (b)(4) would provide the authority 
under 38 U.S.C. 8153(a)(3)(C) for the sole source acquisition of 
commercial health-care resources, the use of medical equipment or 
space, when not acquired from an affiliated institution in accordance 
with paragraph (b)(2). The justification and approval requirements of 
FAR 6.303 and agency internal review procedures apply.
    806.302-571, paragraph (c), would require that contracts awarded 
using the authority set forth under paragraph (a), with the exception 
of acquisitions authorized under paragraph (b)(2) of this section, 
shall be supported by the written justifications and approvals 
described in FAR 6.303 and 6.304, and VA internal agency procedures.
    806.302-571, paragraph (d), would incorporate an updated Title 41 
citation reference: 41 U.S.C. 3304(a)(5), and would also permit VA to 
procure certain supplies and services and require contracting officers, 
pursuant to FAR 6.302-5(c)(2)(ii), to comply with written justification 
and approval requirements set forth in FAR 6.303 and 6.304, citing 41 
U.S.C. 3304(a)(5) and the applicable statute. Specifically, 806.302-
571(d) contains authorities previously under 806.302-5 and would 
continue existing policy to allow VA to continue to enter into 
contracts for the following:
    Scarce medical specialist services through contracts with 1) 
schools and colleges of medicine, osteopathy, dentistry, podiatry, 
optometry, and nursing; 2) clinics; and 3) any other group or 
individual capable of furnishing such scarce medical specialist 
services at VA facilities, to include the services of physicians, 
dentists, podiatrists, optometrists, chiropractors, nurses, physician 
assistants, expanded-function dental auxiliaries, technicians, and 
other medical support personnel, in accordance with the authority of 38 
U.S.C. 7409. We also propose to remove language that was previously 
codified that restricted such contracts to institutions affiliated with 
VA under 38 U.S.C. 7302 as no such restriction is contained in the 
statute for 38 U.S.C. 7409;
    Purchase or sell merchandise, equipment, fixtures, supplies and 
services for the operation of the Veterans Canteen Service under the 
authority of 38 U.S.C. 7802(f);
    Contracts or leases for the operation of parking facilities 
authorized by the Secretary or designee under the authority of 38 
U.S.C. 8109(f);
    Contracts for laundry and other common services, such as the 
purchase of steam, negotiated with non-profit, tax-exempt educational, 
medical, or community institutions, under the authority of 38 U.S.C. 
8122(c), when specifically approved by the Secretary or designee and 
when such services are not reasonably available from private commercial 
sources; and
    Contracts or agreements with private or public agencies or persons, 
including contracts for services of translators under the authority of 
38 U.S.C. 513.
    We propose to remove the authority currently listed in 806.302-
5(a)(1), concerning VA ability to procure scarce medical specialist 
services, as an exception to full and open competition and place this 
authority in 806.302-571(d)(1) to require a written justification and 
approval before procuring services using the 38 U.S.C. 7409 authority. 
While 38 U.S.C. 7409 states that VA may procure scarce medical 
specialist services from certain persons and institutions identified in 
the statute, the statute does not contain language which expressly 
exempts these types of procurements from the competition requirements 
found in 41 U.S.C. 3301 et. seq. We propose to require that the use of 
this authority comply with written justification and approval 
requirements set forth in FAR 6.303 and 6.304 and cite 41 U.S.C. 
3304(a)(5) and 38 U.S.C. 7409.We propose to remove 806.302-7, Public 
interest, as it provides internal procedural guidance not having a 
significant effect beyond the internal operating procedures of the VA 
(see FAR 1.301(b)) and which will be moved to the VAAM.
    We propose to remove 806.304, Approval of the justification, as it 
provides internal procedural guidance not having a significant effect 
beyond the internal operating procedures of the VA (see FAR 1.301(b)) 
and which will be moved to the VAAM.
    We propose to revise subpart 806.5--Competition Advocates, to amend 
the title to Advocates for Competition to conform to the revised title 
in FAR part 6.
    We propose to revise 806.501, Requirement, to identify the Deputy 
Senior Procurement Executive as the VA Advocate for Competition.
    We propose to remove 806.570, Planning requirements, as it provides 
internal procedural guidance not having a significant effect beyond the 
internal operating procedures of the VA (see FAR 1.301(b)) and which 
will be moved to the VAAM.

Effect of Rulemaking

    Title 48, Federal Acquisition Regulations System, Chapter 8, 
Department of Veterans Affairs, of the Code of Federal Regulations, as 
proposed to be revised by this rulemaking, would represent VA's 
implementation of its legal authority and publication of the VAAR for 
the cited applicable parts. Other than future amendments to this rule 
or governing statutes for the cited applicable parts, or as otherwise 
authorized by approved deviations or waivers in accordance with FAR 
subpart 1.4, Deviations from the FAR, and as implemented by VAAR 
subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or

[[Page 1044]]

procedures would be authorized. All existing or subsequent VA guidance 
would be read to conform with the rulemaking if possible or, if not 
possible, such guidance would be superseded by this rulemaking as 
pertains to the cited applicable VAAR parts.

Executive Orders 12866, 13563 and 13771

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
E.O. 12866, Regulatory Planning and Review defines ``significant 
regulatory action'' to mean any regulatory action that is likely to 
result in a rule that may: ``(1) Have an annual effect on the economy 
of $100 million or more or adversely affect in a material way the 
economy, a sector of the economy, productivity, competition, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive order.''
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action, and it has been 
determined this rule is a significant regulatory action under E.O. 
12866, because it may create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency and raises 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in this Executive 
order.
    VA's impact analysis can be found as a supporting document at 
http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's website at 
http://www.va.gov/orpm by following the link for VA Regulations 
Published from FY 2004 Through Fiscal Year to Date.
    This proposed rule is not expected to be subject to the 
requirements of E.O. 13771 because this proposed rule is expected to 
result in no more than de minimis costs.

Paperwork Reduction Act

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

Regulatory Flexibility Act

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

Unfunded Mandates

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

List of Subjects in 48 CFR Part 806

    Government procurement.

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 October 29, 2018, for publication.

    Dated: December 21, 2018.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

0
For the reasons set out in the preamble, VA proposes to revise 48 CFR 
part 806 to read as follows:

PART 806--COMPETITION REQUIREMENTS

Sec.
806.004-70 Definition.
Subpart 806.1--Full and Open Competition
806.102 Use of competitive procedures.
Subpart 806.2--Full and Open Competition After Exclusion of Sources
806.203 Set-asides for small business concerns.
806.270 Set-asides for verified Veteran-owned small businesses.
Subpart 806.3--Other Than Full and Open Competition
806.302 Circumstances permitting other than full and open 
competition.
806.302-5 Authorized or required by statute.
806.302-570 Noncompetitive procedures for verified Veteran-owned 
small businesses.
806.302-571 Authorized or required by statute--VA unique 
authorities.
Subpart 806.5--Advocates for Competition
806.501 Requirement.

    Authority:  40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 
1303; 41 U.S.C. 1702; 41 U.S.C. 3304; and 48 CFR 1.301-1.304.


806.004-70   Definition.

    As used in this part--
    Health-care resources has the same definition as that provided in 
VAAR 873.102.

Subpart 806.1--Full and Open Competition


806.102   Use of competitive procedures.

    (d)(3) Awards made using General Services Administration (GSA) or 
Department of Veterans Affairs (VA) Federal Supply Schedules (FSS) are 
considered competitive when awarded in accordance with the procedures 
specified in FAR part 8 and this part.

Subpart 806.2--Full and Open Competition After Exclusion of Sources


806.203   Set-asides for small business concerns.

    (c) Subpart 819.5 and subpart 819.70 prescribe the policies and 
procedures

[[Page 1045]]

that shall be followed with respect to set-asides for small business 
and Veteran-owned small business concerns.


806.270   Set-asides for verified Veteran-owned small businesses.

    (a) To fulfill the statutory requirements relating to Public Law 
109-461, the Veterans Benefits, Health Care and Information Technology 
Act of 2006 (38 U.S.C. 8127-8128), contracting officers shall set aside 
solicitations in accordance with 819.70 and the VA Rule of Two (see 
802.101) for Vendor Information Pages (VIP) verified service-disabled 
Veteran-owned small businesses (SDVOSBs) and Veteran-owned small 
businesses (VOSBs) (see 819.7005 and 819.7006). (38 U.S.C. 8127-8128)
    (b) This requirement to set aside procurements for VIP verified 
SDVOSBs and VOSBs applies to all types of contracts, including orders 
placed under GSA's Federal Supply Schedules (FSS) and indefinite-
delivery contracts, including Governmentwide acquisition contracts 
(GWACs). (38 U.S.C. 8127-8128)

Subpart 806.3--Other Than Full and Open Competition


806.302   Circumstances permitting other than full and open 
competition.


806.302-5   Authorized or required by statute.


806.302-570  Noncompetitive procedures for verified Veteran-owned small 
businesses.

    (a) Full and open competition need not be provided for when 
awarding a sole source contract under (b) or (c) of this section, to a 
verified SDVOSB or VOSB in accordance with 819.7007 or 819.7008, 
respectively, as authorized. Contracts awarded using this authority 
shall be supported by justification and approval requirements of FAR 
6.302-5(c)(2)(ii), 6.303 and 6.304.
    (b) Sole source awards below the Simplified Acquisition Threshold. 
(Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 8127(b)). A 
contracting officer may award a contract under this authority to a VIP 
verified SDVOSB first, then VOSB if no SDVOSBs can fulfill the need, 
for an amount less than the simplified acquisition threshold, using 
procedures other than full and open competition. (38 U.S.C. 8127)
    (c) Sole source awards above the Simplified Acquisition Threshold. 
(Citation: 41 U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 8127(c)). A 
contracting officer may award a contract to a VIP verified SDVOSB 
first, then VOSB if no SDVOSB can satisfy the need, using procedures 
other than full and open competition when--
    (1) Such concern is determined to be a responsible source with 
respect to performance of such contract opportunity;
    (2) The anticipated award price of the contract (including options) 
will exceed the simplified acquisition threshold, but will not exceed 
$5 million; and
    (3) Contract award can be made at a fair and reasonable price that 
offers best value to the United States. (38 U.S.C. 8127)


806.302-571   Authorized or required by statute--VA unique authorities.

    (a) Authority. (1) Citation: 41 U.S.C. 3304(a)(5). Contracting 
officers shall also cite the specific authorities in paragraph (b) 
below for the statutes related to the products and services procured.
    (2) Full and open competition need not be provided for when--a 
statute expressly authorizes or requires that the acquisition be made 
through another agency or from a specified source.
    (b) Application. The following products and services are authorized 
to be acquired from a specified source:
    (1) Prosthetic appliances and services. Contracting activities may 
procure prosthetic appliances and necessary services required in the 
fitting, supplying, and training and use of prosthetic appliances by 
purchase, manufacture, contract, or in such other manner as determined 
to be proper, without regard to any other provision of law as set forth 
in VA directives governing prosthetic appliances, sensory aids and 
services supporting the same. (38 U.S.C. 8123)
    (2) Commercial health-care resources, the use of medical equipment 
or space, or research, and acquired from an institution affiliated with 
the Department of Veterans Affairs. Contracting activities may procure 
health care resources, including medical practice groups and other 
approved entities associated with affiliated institutions, blood banks, 
organ banks, or research centers from an affiliated institution 
affiliated with VA in accordance with 38 U.S.C. 7302. Medical practice 
groups and other entities shall be approved when determined by the 
contracting activity to be legally associated with affiliated 
institutions. The justification and approval requirements of FAR 6.303 
and paragraph (c) of this section do not apply. (38 U.S.C. 
8153(a)(3)(A))
    (3) Commercial health-care resources, the use of medical equipment 
or space, and is not to be acquired from an entity described in (b)(2) 
of this section. Contracting activities may procure health care 
resources from a non-affiliated institution only if the procurement is 
conducted in accordance with the simplified procedures prescribed in 
part 873. The justification and approval requirements of FAR 6.303 
shall apply. (38 U.S.C. 8153(a)(3)(B))
    (4) Commercial health-care resources, the use of medical equipment 
or space, when not acquired from an affiliated institution described in 
(b)(2) of this section and to be conducted on a sole source basis. This 
authority applies if not acquired from an affiliated institution in 
accordance with part 873. The justification and approval requirements 
of FAR 6.303 shall apply. (38 U.S.C. 8153(a)(3)(C))
    (c) Contracts awarded using this authority, with the exception of 
acquisitions authorized under paragraph (b)(2) of this section, shall 
be supported by the written justifications and approvals described in 
FAR 6.303 and 6.304.
    (d) When a contracting officer enters into a contract without 
providing full and open competition for any of the following items or 
services, the contracting officer must cite 41 U.S.C. 3304(a)(5) and 
the following authorities that apply, in the written justifications and 
approvals as required by FAR 6.303 and 6.304:
    (1) Contracts for scarce medical specialist services. (Citation: 41 
U.S.C. 3304(a)(5), as authorized by 38 U.S.C. 7409). Contracting 
officers may enter into contracts with (1) schools and colleges of 
medicine, osteopathy, dentistry, podiatry, optometry, and nursing; (2) 
clinics; and (3) any other group or individual capable of furnishing 
such scarce medical specialist services at VA facilities, to include 
the services of physicians, dentists, podiatrists, optometrists, 
chiropractors, nurses, physician assistants, expanded-function dental 
auxiliaries, technicians, and other medical support personnel. (38 
U.S.C. 7409)
    (2) Contracts or agreements to purchase or sell merchandise, 
equipment, fixtures, supplies and services for the operation of the 
Veterans Canteen Service. (Citation: 41 U.S.C. 3304(a)(5), as 
authorized by 38 U.S.C. 7802(f)). Contracts or agreements may be 
entered into without regard to 41 U.S.C. 6101(b) through (d).
    (3) Contracts or leases for the operation of parking facilities 
established under authority of 38 U.S.C. 8109(b). (Citation: 41 U.S.C. 
3304(a)(5), as authorized by 38 U.S.C. 8109(f)). Contracts or leases 
may be entered into

[[Page 1046]]

provided that the establishment, operation, and maintenance of such 
facilities have been authorized by the Secretary or designee.
    (4) Contracts for laundry and other common services, such as the 
purchase of steam, negotiated with non-profit, tax-exempt educational, 
medical, or community institutions. (Citation: 41 U.S.C. 3304(a)(5), as 
authorized by 38 U.S.C. 8122(c)). Contracts may be entered into when 
specifically approved by the Secretary or designee and when such 
services are not reasonably available from private commercial sources.
    (5) Contracts or agreements with private or public agencies or 
persons for translator services. (Citation: 41 U.S.C. 3304(a)(5), as 
authorized by 38 U.S.C. 513).

Subpart 806.5--Advocates for Competition


806.501   Requirement.

    The Deputy Senior Procurement Executive (DSPE) is designated as the 
VA Advocate for Competition. The DSPE may further delegate this 
authority to other VA officials. A complete list of VA procuring 
activity Advocates for Competition can be found at https://www.va.gov/oal/business/pps/policy.asp.

[FR Doc. 2018-28206 Filed 1-31-19; 8:45 am]
 BILLING CODE 8320-01-P