Issuance of Class Deviation From VA Acquisition Regulation (VAAR) Part 808-Required Sources of Supplies and Services and Conforming Amendments, 29389-29391 [2019-13217]
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Federal Register / Vol. 84, No. 121 / Monday, June 24, 2019 / Rules and Regulations
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finds that consumer-driven call blocking
is an enhancement of service, not a
discontinuance or impairment of
‘‘service’’ to a ‘‘community, or part of a
community,’’ within the meaning of
section 214(a) of the Act. In any event,
because the Commission’s discussion in
the 2015 TCPA Order focusing on optin call blocking programs created
uncertainty as to the call-blocking tools
that voice service providers can offer
their customers, the Commission is
expressly authorized to issue a
declaratory ruling here to clarify that
voice service providers’ long-recognized
ability to block unlawful calls
encompasses the right to block calls
where the customer chooses on an
informed opt-out basis. In short, as
stated above, the Commission finds that
opt-out call-blocking programs are
generally just and reasonable practices
(not unjust and unreasonable practices)
under section 201 of the Act and
enhancements of service (not
impairments of service) under section
214 of the Act.
Reports on Deployment and
Implementation of Call Blocking and
Caller ID Authentication
19. In order to measure the
effectiveness of efforts of the
Commission and industry to thwart
illegal robocalls and empower
consumers, the Commission directs
CGB, in consultation with the WCB and
PSHSB, to prepare two reports on the
state of deployment of advanced
methods and tools to eliminate such
calls, including the impact of call
blocking on 911 and public safety. The
reports shall be submitted to the
Commission no later than June 23, 2020,
for the first report, and no later than
June 23, 2021, for the second report.
20. Specifically, the Commission
adopts the recommendation of its
Consumer Advisory Committee dated
September 18, 2017, to study the
implementation and effectiveness of
blocking measures, to include:
[T]he availability to consumers of call
blocking solutions; the fees charged, if
any, for call blocking tools available to
consumers; the proportion of
subscribers whose providers offer
and/or enable call blocking tools; the
effectiveness of various categories of call
blocking tools; and an assessment of the
number of subscribers availing
themselves of available call blocking
tools.
21. The Commission recognizes that
to determine the ‘‘effectiveness of
various categories of call blocking
tools,’’ as the Consumer Advisory
Committee recommended, it may be
necessary for CGB to collect additional
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information and data from voice service
providers. The Commission explicitly
delegates authority to CGB, in
consultation with WCB and PSHSB, to
collect any and all relevant information
and data from voice service providers
necessary to complete these reports.
Following delivery of the first report,
the Commission will assess whether,
contrary to expectation, consumers are
being charged and, if so, the
Commission will seek comment on rules
requiring providers that offer these
services to do so for free.
Ordering Clause
22. Pursuant to sections 4(i), 4(j), 201,
and 214 of the Communications Act of
1934, as amended, 47 U.S.C. 154(i),
154(j), 201, 214, and §§ 1.2 and 64.1200
of the Commission’s rules, 47 CFR 1.2,
64.1200, the Declaratory Ruling in CG
Docket No. 17–59 is adopted.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
[FR Doc. 2019–13270 Filed 6–21–19; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF VETERANS
AFFAIRS
48 CFR Part 808
[Docket VA–2019–VACO–0018]
Issuance of Class Deviation From VA
Acquisition Regulation (VAAR) Part
808—Required Sources of Supplies
and Services and Conforming
Amendments
AGENCY:
Department of Veterans Affairs
(VA).
Temporary rule; request for
comments.
ACTION:
VA provides notification that
the agency has issued a class deviation
from VA Acquisition Regulation
(VAAR) Part 808—Required Sources of
Supplies and Services. VA is amending
the VAAR to implement the Federal
Circuit’s mandate. VA has determined
that publication of this notification in
the Federal Register would be beneficial
to both the agency’s acquisition
workforce and industry stakeholders.
The class deviation, which is effective
May 20, 2019, was issued to
immediately implement the Federal
Circuit’s mandate, and this publication
is to further notify the public in order
to avoid confusion regarding applicable
policy and to make conforming
amendments to the CFR. The public is
invited to submit comments on VA’s
approach to implementing the Federal
SUMMARY:
PO 00000
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29389
Circuit mandate, as set forth in the class
deviation and the conforming
amendments to the CFR set forth in this
publication.
DATES: The rule is effective June 24,
2019 through July 1, 2021. The class
deviation is effective as of May 20, 2019.
Comments: Interested parties are invited
to submit comments in writing by July
24, 2019.
ADDRESSES: Written comments may be
submitted through https://
www.regulations.gov; by mail or hand
delivery to the Director, Office of
Regulation Policy and Management
(00REG), Department of Veterans
Affairs, 810 Vermont Avenue NW,
Room 1064, Washington DC 20420; or
by fax to 202–273–9026. Comments
should indicate that they are submitted
in response to Docket #VA–2019–
VACO–0018, titled—‘‘Issuance of Class
Deviation from VA Acquisition
Regulation (VAAR) Part 808 — Required
Sources of Supplies and Services.’’
During the comment period, comments
may also be viewed online through the
Federal Docket Management System at
www.regulations.gov. The full class
deviation text is available at: https://
www.va.gov/oal/docs/business/pps/
deviationVaar20190520.PDF.
FOR FURTHER INFORMATION CONTACT:
Sheila P. Darrell, Ph.D., CFCM, Office of
Acquisition and Logistics (003A),
Procurement Policy and Warrant
Management Service (003A2A) via
email at VA.Procurement.Policy@va.gov
or (202) 632–5288. (This is not a tollfree number).
SUPPLEMENTARY INFORMATION: On
October 17, 2018, the Federal Circuit,
which has nationwide appellate
jurisdiction over challenges to federal
agency procurement decisions, issued a
decision in PDS Consultants, Inc., v.
The United States, Winston-Salem
Industries for the Blind (PDS
Consultants), 907 F.3d 1345 (Fed. Cir.
2018). In the decision, the Federal
Circuit noted that in 2016 the United
States Supreme Court, in its decision in
Kingdomware Technologies, Inc. v.
United States, held that, ‘‘[e]xcept when
the [VA] uses the noncompetitive and
sole-source contracting procedures in
subsections (b) and (c), § 8127(d)
requires the [VA] to use the Rule of Two
before awarding a contract to another
supplier.’’ However, the Federal Circuit
acknowledged that Kingdomware did
not directly address the interaction
between 38 U.S.C. 8127 and the JavitsWagner O’Day Act (JWOD), 41. U.S.C.
8504, and, instead focused on whether
VA had the discretion to place orders
under a preexisting Federal Supply
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Federal Register / Vol. 84, No. 121 / Monday, June 24, 2019 / Rules and Regulations
Schedule before resorting to the Rule of
Two.
The Federal Circuit further found
that, under 38 U.S.C. 8128(a), the
Secretary of Veterans Affairs, when
‘‘procuring goods and services pursuant
to a contracting preference under [title
38] or any other provision of law . . .
shall give priority to a small business
concern owned and controlled by
veterans, if such business concern meets
the requirements of that contracting
preference.’’ (emphasis added). The
Federal Circuit found that the phrase
‘‘or any other provision of law’’ by its
terms encompasses the JWOD.
Therefore, the Federal Circuit found that
where a product or service is on the
Procurement List and ordinarily would
result in the contract being awarded to
a nonprofit qualified under the JWOD,
38 U.S.C. 8127(d) would require VA to
apply the VA Rule of Two before
awarding a contract to a qualified
nonprofit organization.
VA provides notice that the agency
has issued a class deviation from VA
Acquisition Regulation (VAAR) Part
808—Required Sources of Supplies and
Services on May 20, 2019. The class
deviation from the VAAR supersedes
and effectively updates the language
previously set forth in Class Deviation
from 808.002, Priorities for Use of
Mandatory Government Sources, dated
February 9, 2018. On May 20, 2019, the
United States Court of Appeals for the
Federal Circuit (the Federal Circuit)
issued a mandate effectuating the
October 17, 2018 decision in PDS
Consultants, Inc., v. The United States,
Winston-Salem Industries for the Blind,
(PDS Consultants) and creating a
binding circuit precedent which
necessitated immediate policy change.
Accordingly, the class deviation
authorizes contracting officers to deviate
from VAAR 808.002 and 808.603 to
reflect language consistent with the
decision of the Federal Circuit.
Specifically, the class deviation
requires VA contracting officers to apply
the VA Rule of Two, as implemented in
VAAR subpart 819.70, before awarding
a contract to a qualified nonprofit
organization under the Javits-Wagner
O’Day Act (JWOD) or making a contract
award to Federal Prison Industries, Inc.
(FPI). The deviation clarifies that if VA
is unable to award to a Vendor
Information Pages (VIP)-listed and
verified service-disabled veteran-owned
small business (SDVOSB) or a veteranowned small business (VOSB) using the
procedures set forth in VAAR subpart
819.70, AbilityOne nonprofit
organization and FPI would retain their
mandatory source status.
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VA has determined that this
publication in the Federal Register is
necessary to make conforming edits to
the CFR in order to clarify existing
requirements to both the agency’s
acquisition workforce and industry
stakeholders.
This document provides a comment
period of 30 days in which commenters
may address VA’s approach to
implementing the Federal Circuit
mandate, as set forth in the class
deviation and the conforming
amendments to the CFR set forth in this
publication. VA believes 30 days is
sufficient to provide comments given
the litigation history and the
information being requested. As
discussed above, the Federal Circuit’s
mandate required that the agency’s
acquisition workforce immediately
comply with the binding precedent.
This demonstrates that a delay of the
effective date of the rule on the public
would be unnecessary. Accordingly, the
Secretary finds good cause to dispense
with the opportunity for advanced
notice and opportunity for public
comment and to publish this temporary
rule with an effective date of June 24,
2019.
Executive Orders 12866
VA has examined the economic,
interagency, budgetary, legal, and policy
implications of this regulatory action,
and it has been determined not be a
significant regulatory action under E.O.
12866.
Congressional Review Act
Pursuant to the Congressional Review
Act (5 U.S.C. Section 801 et seq.), the
Office of Information and Regulatory
Affairs designated this rule as not a
major rule, as defined by 5 U.S.C.
Section 804(2).
Signing Authority
The Secretary of Veterans Affairs, or
designee, approved this document and
authorized the undersigned to sign and
submit the document to the Office of the
Federal Register for publication
electronically as an official document of
the Department of Veterans Affairs.
Robert L. Wilkie, Secretary, Department
of Veterans Affairs, approved this
document on June 13, 2019, for
publication.
Dated: June 18, 2019.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy
& Management, Office of the Secretary,
Department of Veterans Affairs.
For the reasons set forth in the
preamble, we amend 48 CFR part 808 as
follows:
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PART 808—REQUIRED SOURCES OF
SUPPLIES AND SERVICES
1. The authority citation for part 808
continues to read as follows:
■
Authority: 38 U.S.C. 8127 and 8128; 40
U.S.C. 121(c) and (d); and 48 CFR 1.301–
1.304.
2. In § 808.002, revise the section
heading and paragraphs (a) and (b) to
read as follows:
■
§ 808.002 Priorities for use of mandatory
Government sources.
(a) Sources. Contracting activities
shall satisfy requirements for supplies
and services from or through the
mandatory sources listed below in
descending order of priority:
(1) Supplies. (i) VA inventories
including the VA supply stock program
(41 CFR 101–26.704) and VA excess.
(ii) Excess from other agencies (see
FAR subpart 8.1).
(iii) Federal Prison Industries, Inc.
(see VAAR 808.603). Prior to
considering award of a contract to
Federal Prison Industries, Inc,
contracting officers shall apply the VA
Rule of Two to determine whether a
requirement should be awarded to
veteran-owned small businesses under
the authority of 38 U.S.C. 8127–28, by
using the preferences and priorities in
subpart 819.70. If an award is not made
to a VIP-listed and verified service
disabled veteran-owned small business
(SDVOSB)/veteran-owned small
business (VOSB) as provided in subpart
819.70, FPI remains a mandatory source
in accordance with FAR 8.002.
(iv) Supplies that are on the
Procurement List maintained by the
Committee for Purchase from People
Who Are Blind or Severely Disabled,
known as AbilityOne (FAR subpart 8.7).
Prior to considering award of a contract
under the AbilityOne program,
contracting officers shall apply the VA
Rule of Two to determine whether a
requirement should be awarded to
veteran-owned small businesses under
the authority of 38 U.S.C. 8127–28, by
using the preferences and priorities in
subpart 819.70. If an award is not made
to a VIP-listed and verified SDVOSB/
VOSB as provided in subpart 819.70,
AbilityOne remains a mandatory source
in accordance with FAR 8.002. All new
VA requirements must be approved by
the Chief Acquisition Officer, via the
Senior Procurement Executive, before
contacting the Committee to request
addition of new items to the
Procurement List.
(v) Wholesale supply sources, such as
stock programs of the General Services
Administration (GSA) (see 41 CFR 101–
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26.3), the Defense Logistics Agency (see
41 CFR 101–26.6), the Department of
Veterans Affairs (see 41 CFR 101–
26.704), and military inventory control
points.
(2) Services that are on the
Procurement List maintained by the
Committee for Purchase from People
Who Are Blind or Severely Disabled,
known as AbilityOne (FAR subpart 8.7).
Prior to considering award of a contract
under the AbilityOne program,
contracting officers shall apply the VA
Rule of Two to determine whether a
requirement should be awarded to
veteran-owned small businesses under
the authority of 38 U.S.C. 8127–28, by
using the preferences and priorities in
subpart 819.70. If an award is not made
to a VIP-listed and verified SDVOSB/
VOSB as provided in subpart 819.70,
AbilityOne remains a mandatory source
in accordance with FAR 8.002. All new
VA requirements must be approved by
the Chief Acquisition Officer, via the
Senior Procurement Executive, before
contacting the Committee to request
addition of new items to the
Procurement List.
(b) Unusual and compelling urgency.
The contracting officer may use a source
other than those listed in paragraph (a)
of this section when the need for
supplies or services is of an unusual and
compelling urgency (see FAR 6.302–2,
8.405–6 and 13.106–1 for justification
requirements).
*
*
*
*
*
■ 3. Revise § 808.603 to read as follows:
§ 808.603
Purchasing priorities.
A waiver from FPI is not needed
when comparable supplies and services
are procured in accordance with subpart
819.70.
[FR Doc. 2019–13217 Filed 6–21–19; 8:45 am]
BILLING CODE 8320–01–P
DEPARTMENT OF VETERANS
AFFAIRS
48 CFR Parts 817 and 852
RIN 2900–AQ19
VA Acquisition Regulation: Special
Contracting Methods
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
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SUMMARY:
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Acquisition Manual (VAAM), and to
incorporate any new agency specific
regulations or policies. These changes
seek to 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, VA will publish
them in the Federal Register. In
particular, this rulemaking revises
VAAR coverage concerning Special
Contracting Methods as well as an
affected part covering Solicitation
Provisions and Contract Clauses.
DATES: This rule is effective on July 24,
2019.
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
December 27, 2018, VA published a
proposed rule in the Federal Register
(83 FR 66662) which announced VA’s
intent to amend regulations for VAAR
Case RIN 2900–AQ19—VA Acquisition
Regulation: Special Contracting
Methods. VA provided a 60-day
comment period for the public to
respond to the proposed rule and
submit comments. The comment period
for the proposed rule ended on February
25, 2019 and VA received one comment.
VA makes no changes to this final rule
as a result of the one comment received.
However, this rule adopts as a final rule,
the proposed rule that published in the
Federal Register on December 27, 2018,
along with two technical nonsubstantive changes to the proposed
rule and minor formatting and/or
grammatical edits. The two technical
non-substantive changes to the
proposed rule are described below.
In particular, this final rule revises
part 817, Special Contracting Methods.
This final rule removes subpart 817.1,
Multi-year Contracting, in its entirety
since it deals with internal procedures
about the uses of multi-year contracting
and internal approvals to be obtained.
This final rule also removes subpart
817.2 in its entirety by removing
817.202, Use of options, and 817.204,
Contracts. 817.202 consisted of internal
procedures to develop solicitations and
cost comparisons under Office of
Management and Budget Circular A–76.
Since there is currently a moratorium on
public-private competitions this will not
be moved to the VAAM. 817.204,
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29391
Contracts, contained internal
procedures and approvals to be obtained
for contracts with option periods greater
than five years, and this coverage was
moved to the VAAM.
This rule removes subpart 817.4,
Leader Company Contracting, and
817.402, Limitations, since they
included internal procedures and
approval requirements for leader
company contracts. The coverage was
moved to the VAAM.
This final rule revises the title of
subpart 817.5 to read ‘‘Interagency
Acquisitions,’’ and adds 817.501,
General, which requires that any
governmental entity that acquires goods
and services on behalf of the
Department of Veterans Affairs shall
comply, to the maximum extent
feasible, with the provisions of 38
U.S.C. 8127 and 8128, and the Veterans
First Contracting Program as
implemented at subpart 819.70.
This regulatory action removes
817.502, General, which is replaced
with updated policy in 817.501. The
coverage was moved to comport with
the numbering in the FAR.
This rule adds subpart 817.70,
Undefinitized Contract Actions, to
provide policy and procedures for the
use of undefinitized contract actions
(UCAs) as UCAs are a high-risk method
of procurement. This final rule adds
817.7000, Scope, which describes the
material being introduced in this
subpart, and 817.7001, Definitions, to
provide definitions of four terms used in
the subpart: contract action,
definitization, definitization proposal,
and undefinitized contract action.
This final rule also adds 817.7002,
Exceptions, which exempts simplified
acquisitions and congressionally
mandated long-lead procurement
contracts from this policy but requires
the contracting officer to apply the
policy and procedures to the maximum
extent practicable.
817.7003, Policy, was added to clearly
convey that undefinitized contract
actions should be limited to situations
where it is not possible to negotiate a
definitive contract action in time to
meet the government’s requirements,
and where the interests of the
government demand that the contractor
be given a commitment so that contract
performance can begin immediately.
This final rule adds 817.7004,
Limitations, with no text, and the
following sections: 817.7004–1,
Authorization, which provides guidance
as to when the contracting officer must
obtain approval to use an undefinitized
contract action; and 817.7004–2, Price
ceiling, which requires all undefinitized
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]]>Agencies
[Federal Register Volume 84, Number 121 (Monday, June 24, 2019)]
[Rules and Regulations]
[Pages 29389-29391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13217]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
48 CFR Part 808
[Docket VA-2019-VACO-0018]
Issuance of Class Deviation From VA Acquisition Regulation (VAAR)
Part 808--Required Sources of Supplies and Services and Conforming
Amendments
AGENCY: Department of Veterans Affairs (VA).
ACTION: Temporary rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: VA provides notification that the agency has issued a class
deviation from VA Acquisition Regulation (VAAR) Part 808--Required
Sources of Supplies and Services. VA is amending the VAAR to implement
the Federal Circuit's mandate. VA has determined that publication of
this notification in the Federal Register would be beneficial to both
the agency's acquisition workforce and industry stakeholders. The class
deviation, which is effective May 20, 2019, was issued to immediately
implement the Federal Circuit's mandate, and this publication is to
further notify the public in order to avoid confusion regarding
applicable policy and to make conforming amendments to the CFR. The
public is invited to submit comments on VA's approach to implementing
the Federal Circuit mandate, as set forth in the class deviation and
the conforming amendments to the CFR set forth in this publication.
DATES: The rule is effective June 24, 2019 through July 1, 2021. The
class deviation is effective as of May 20, 2019. Comments: Interested
parties are invited to submit comments in writing by July 24, 2019.
ADDRESSES: Written comments may be submitted through https://www.regulations.gov; by mail or hand delivery to the Director, Office
of Regulation Policy and Management (00REG), Department of Veterans
Affairs, 810 Vermont Avenue NW, Room 1064, Washington DC 20420; or by
fax to 202-273-9026. Comments should indicate that they are submitted
in response to Docket #VA-2019-VACO-0018, titled--``Issuance of Class
Deviation from VA Acquisition Regulation (VAAR) Part 808 -- Required
Sources of Supplies and Services.'' During the comment period, comments
may also be viewed online through the Federal Docket Management System
at www.regulations.gov. The full class deviation text is available at:
https://www.va.gov/oal/docs/business/pps/deviationVaar20190520.PDF.
FOR FURTHER INFORMATION CONTACT: Sheila P. Darrell, Ph.D., CFCM, Office
of Acquisition and Logistics (003A), Procurement Policy and Warrant
Management Service (003A2A) via email at [email protected]
or (202) 632-5288. (This is not a toll-free number).
SUPPLEMENTARY INFORMATION: On October 17, 2018, the Federal Circuit,
which has nationwide appellate jurisdiction over challenges to federal
agency procurement decisions, issued a decision in PDS Consultants,
Inc., v. The United States, Winston-Salem Industries for the Blind (PDS
Consultants), 907 F.3d 1345 (Fed. Cir. 2018). In the decision, the
Federal Circuit noted that in 2016 the United States Supreme Court, in
its decision in Kingdomware Technologies, Inc. v. United States, held
that, ``[e]xcept when the [VA] uses the noncompetitive and sole-source
contracting procedures in subsections (b) and (c), Sec. 8127(d)
requires the [VA] to use the Rule of Two before awarding a contract to
another supplier.'' However, the Federal Circuit acknowledged that
Kingdomware did not directly address the interaction between 38 U.S.C.
8127 and the Javits-Wagner O'Day Act (JWOD), 41. U.S.C. 8504, and,
instead focused on whether VA had the discretion to place orders under
a preexisting Federal Supply
[[Page 29390]]
Schedule before resorting to the Rule of Two.
The Federal Circuit further found that, under 38 U.S.C. 8128(a),
the Secretary of Veterans Affairs, when ``procuring goods and services
pursuant to a contracting preference under [title 38] or any other
provision of law . . . shall give priority to a small business concern
owned and controlled by veterans, if such business concern meets the
requirements of that contracting preference.'' (emphasis added). The
Federal Circuit found that the phrase ``or any other provision of law''
by its terms encompasses the JWOD. Therefore, the Federal Circuit found
that where a product or service is on the Procurement List and
ordinarily would result in the contract being awarded to a nonprofit
qualified under the JWOD, 38 U.S.C. 8127(d) would require VA to apply
the VA Rule of Two before awarding a contract to a qualified nonprofit
organization.
VA provides notice that the agency has issued a class deviation
from VA Acquisition Regulation (VAAR) Part 808--Required Sources of
Supplies and Services on May 20, 2019. The class deviation from the
VAAR supersedes and effectively updates the language previously set
forth in Class Deviation from 808.002, Priorities for Use of Mandatory
Government Sources, dated February 9, 2018. On May 20, 2019, the United
States Court of Appeals for the Federal Circuit (the Federal Circuit)
issued a mandate effectuating the October 17, 2018 decision in PDS
Consultants, Inc., v. The United States, Winston-Salem Industries for
the Blind, (PDS Consultants) and creating a binding circuit precedent
which necessitated immediate policy change. Accordingly, the class
deviation authorizes contracting officers to deviate from VAAR 808.002
and 808.603 to reflect language consistent with the decision of the
Federal Circuit.
Specifically, the class deviation requires VA contracting officers
to apply the VA Rule of Two, as implemented in VAAR subpart 819.70,
before awarding a contract to a qualified nonprofit organization under
the Javits-Wagner O'Day Act (JWOD) or making a contract award to
Federal Prison Industries, Inc. (FPI). The deviation clarifies that if
VA is unable to award to a Vendor Information Pages (VIP)-listed and
verified service-disabled veteran-owned small business (SDVOSB) or a
veteran-owned small business (VOSB) using the procedures set forth in
VAAR subpart 819.70, AbilityOne nonprofit organization and FPI would
retain their mandatory source status.
VA has determined that this publication in the Federal Register is
necessary to make conforming edits to the CFR in order to clarify
existing requirements to both the agency's acquisition workforce and
industry stakeholders.
This document provides a comment period of 30 days in which
commenters may address VA's approach to implementing the Federal
Circuit mandate, as set forth in the class deviation and the conforming
amendments to the CFR set forth in this publication. VA believes 30
days is sufficient to provide comments given the litigation history and
the information being requested. As discussed above, the Federal
Circuit's mandate required that the agency's acquisition workforce
immediately comply with the binding precedent. This demonstrates that a
delay of the effective date of the rule on the public would be
unnecessary. Accordingly, the Secretary finds good cause to dispense
with the opportunity for advanced notice and opportunity for public
comment and to publish this temporary rule with an effective date of
June 24, 2019.
Executive Orders 12866
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this regulatory action, and it has been
determined not be a significant regulatory action under E.O. 12866.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. Section 801 et
seq.), the Office of Information and Regulatory Affairs designated this
rule as not a major rule, as defined by 5 U.S.C. Section 804(2).
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Robert L.
Wilkie, Secretary, Department of Veterans Affairs, approved this
document on June 13, 2019, for publication.
Dated: June 18, 2019.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
the Secretary, Department of Veterans Affairs.
For the reasons set forth in the preamble, we amend 48 CFR part 808
as follows:
PART 808--REQUIRED SOURCES OF SUPPLIES AND SERVICES
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1. The authority citation for part 808 continues to read as follows:
Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c) and (d);
and 48 CFR 1.301-1.304.
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2. In Sec. 808.002, revise the section heading and paragraphs (a) and
(b) to read as follows:
Sec. 808.002 Priorities for use of mandatory Government sources.
(a) Sources. Contracting activities shall satisfy requirements for
supplies and services from or through the mandatory sources listed
below in descending order of priority:
(1) Supplies. (i) VA inventories including the VA supply stock
program (41 CFR 101-26.704) and VA excess.
(ii) Excess from other agencies (see FAR subpart 8.1).
(iii) Federal Prison Industries, Inc. (see VAAR 808.603). Prior to
considering award of a contract to Federal Prison Industries, Inc,
contracting officers shall apply the VA Rule of Two to determine
whether a requirement should be awarded to veteran-owned small
businesses under the authority of 38 U.S.C. 8127-28, by using the
preferences and priorities in subpart 819.70. If an award is not made
to a VIP-listed and verified service disabled veteran-owned small
business (SDVOSB)/veteran-owned small business (VOSB) as provided in
subpart 819.70, FPI remains a mandatory source in accordance with FAR
8.002.
(iv) Supplies that are on the Procurement List maintained by the
Committee for Purchase from People Who Are Blind or Severely Disabled,
known as AbilityOne (FAR subpart 8.7). Prior to considering award of a
contract under the AbilityOne program, contracting officers shall apply
the VA Rule of Two to determine whether a requirement should be awarded
to veteran-owned small businesses under the authority of 38 U.S.C.
8127-28, by using the preferences and priorities in subpart 819.70. If
an award is not made to a VIP-listed and verified SDVOSB/VOSB as
provided in subpart 819.70, AbilityOne remains a mandatory source in
accordance with FAR 8.002. All new VA requirements must be approved by
the Chief Acquisition Officer, via the Senior Procurement Executive,
before contacting the Committee to request addition of new items to the
Procurement List.
(v) Wholesale supply sources, such as stock programs of the General
Services Administration (GSA) (see 41 CFR 101-
[[Page 29391]]
26.3), the Defense Logistics Agency (see 41 CFR 101-26.6), the
Department of Veterans Affairs (see 41 CFR 101-26.704), and military
inventory control points.
(2) Services that are on the Procurement List maintained by the
Committee for Purchase from People Who Are Blind or Severely Disabled,
known as AbilityOne (FAR subpart 8.7). Prior to considering award of a
contract under the AbilityOne program, contracting officers shall apply
the VA Rule of Two to determine whether a requirement should be awarded
to veteran-owned small businesses under the authority of 38 U.S.C.
8127-28, by using the preferences and priorities in subpart 819.70. If
an award is not made to a VIP-listed and verified SDVOSB/VOSB as
provided in subpart 819.70, AbilityOne remains a mandatory source in
accordance with FAR 8.002. All new VA requirements must be approved by
the Chief Acquisition Officer, via the Senior Procurement Executive,
before contacting the Committee to request addition of new items to the
Procurement List.
(b) Unusual and compelling urgency. The contracting officer may use
a source other than those listed in paragraph (a) of this section when
the need for supplies or services is of an unusual and compelling
urgency (see FAR 6.302-2, 8.405-6 and 13.106-1 for justification
requirements).
* * * * *
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3. Revise Sec. 808.603 to read as follows:
Sec. 808.603 Purchasing priorities.
A waiver from FPI is not needed when comparable supplies and
services are procured in accordance with subpart 819.70.
[FR Doc. 2019-13217 Filed 6-21-19; 8:45 am]
BILLING CODE 8320-01-P
