VA Acquisition Regulation: Contractor Qualifications; Acquisition of Utility Services; and Contract Administration and Audit Services, 21811-21820 [2020-07799]

Download as PDF Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands. List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Ozone, Volatile organic compounds. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: April 13, 2020. Kurt Thiede, Regional Administrator, Region 5. [FR Doc. 2020–08031 Filed 4–17–20; 8:45 am] BILLING CODE 6560–50–P DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Parts 431, 433, 435, 441, and 483 [CMS–2418–N] RIN 0938–AT95 Medicaid Program; Preadmission Screening and Resident Review; Extension of Comment Period Centers for Medicare & Medicaid Services (CMS), HHS. ACTION: Proposed rule; Extension of comment period. jbell on DSKJLSW7X2PROD with PROPOSALS AGENCY: This document extends the comment period for the proposed rule entitled ‘‘Medicaid Program; Preadmission Screening and Resident Review’’ that appeared in the February 20, 2020 Federal Register. The comment SUMMARY: VerDate Sep<11>2014 16:24 Apr 17, 2020 Jkt 250001 period for the proposed rule, which would end on April 20, 2020, is extended 30 days to May 20, 2020. DATES: The comment period for the proposed rule (85 FR 9990) is extended to 5 p.m., eastern daylight time, on May 20, 2020. ADDRESSES: You may submit comments as outlined in the February 20, 2020 proposed rule (85 FR 9990). Please choose only one method listed. FOR FURTHER INFORMATION CONTACT: Anne Blackfield, (410) 786–8518. SUPPLEMENTARY INFORMATION: In the ‘‘Medicaid Program; Preadmission Screening and Resident Review’’ proposed rule that appeared in the February 20, 2020 Federal Register (85 FR 9990), we solicited public comments on proposed policies that aim to modernize the requirements for Preadmission Screening and Resident Review (PASRR), currently referred to in regulation as Preadmission Screening and Annual Resident Review, by including statutory changes, reflecting updates to diagnostic criteria for mental illness and intellectual disability, reducing duplicative requirements and other administrative burdens on State PASRR programs, and making the process more streamlined and personcentered. Since the issuance of the proposed rule, the United States and its citizens have endured a dramatic upheaval to our way of life as a result of the COVID– 19 global pandemic. The federal and state governments, as well as private businesses, have made drastic but necessary decisions to restrict access to buildings, businesses, and transportation to slow the spread of the disease. As a result, many workplaces are dealing with changed priorities, new work procedures, and a limited workforce. We acknowledge the difficulties the current situation presents, including the limited ability of states and stakeholders to analyze and respond to our proposed rule. To maximize the opportunity for the public to provide meaningful input to CMS, we believe that it is important to allow additional time for the public to prepare comments on the proposed rule. In addition, we believe that granting an extension to the public comment period in this instance would further our overall objective to obtain public input on the proposed provisions to modernize PASRR requirements. Therefore, we are extending the comment period for the proposed rule for an additional 30 days. The Administrator of the Centers for Medicare & Medicaid Services (CMS), Seema Verma, having reviewed and PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 21811 approved this document, authorizes Evell J. Barco Holland, who is the Federal Register Liaison, to electronically sign this document for purposes of publication in the Federal Register. Evell J. Barco Holland, Federal Register Liaison, Department of Health and Human Services. [FR Doc. 2020–08329 Filed 4–17–20; 8:45 am] BILLING CODE 4120–01–P DEPARTMENT OF VETERANS AFFAIRS 48 CFR Parts 802, 809, 841, 842, and 852 RIN 2900–AQ38 VA Acquisition Regulation: Contractor Qualifications; Acquisition of Utility Services; and Contract Administration and Audit Services Department of Veterans Affairs. Proposed rule. AGENCY: ACTION: 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 the Federal Acquisition Regulation (FAR), to remove any procedural guidance internal to VA into the VA Acquisition Manual (VAAM), and to incorporate any new agency specific regulations or policies. These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors. The VAAM incorporates portions of the removed VAAR as well as other internal agency acquisition policy. VA will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are rewritten, will publish them in the Federal Register. VA will combine related topics, as appropriate. This rulemaking revises VAAR coverage concerning Contractor Qualifications, Acquisition of Utility Services, and Contract Administration and Audit Services, as well as affected parts concerning Definitions of Words and Terms and Solicitation Provisions and Contract Clauses. DATES: Comments must be received on or before June 19, 2020 to be considered in the formulation of the final rule. ADDRESSES: Written comments may be submitted through www.Regulations.gov; by mail or handdelivery to Director, Office of Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 SUMMARY: E:\FR\FM\20APP1.SGM 20APP1 21812 Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules 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 ‘‘RIN 2900–AQ38—VA Acquisition Regulation: Contractor Qualifications; Acquisition of Utility Services; and Contract Administration and Audit Services.’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1064, 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 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: jbell on DSKJLSW7X2PROD with PROPOSALS Background This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR. VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any redundant guidance and guidance that is applicable only to VA’s internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. All amendments, revisions and removals have been reviewed and concurred with by VA’s Integrated Product Team of agency stakeholders. The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are consistent with FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, 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 appropriated funds, the purchase is governed by the FAR, set forth at Title 48 Code of Federal Regulations (CFR), VerDate Sep<11>2014 16:24 Apr 17, 2020 Jkt 250001 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 the 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. The VAAM will not be finalized until corresponding VAAR parts are finalized, and therefore the VAAM is not yet available online. VAAR Part 802—Definitions of Words and Terms Under part 802, we propose to amend Section 802.101 to remove definitions of ‘‘Suspending and Debarring Official (SDO)’’ and ‘‘Suspension and Debarment Committee (S&D Committee).’’ VAAR Part 809—Contractor Qualifications Under part 809, Contractor Qualifications, we propose to add the authority citation for 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. We propose to revise the authority citation of 40 U.S.C. 121 to remove the reference to paragraph (d), as paragraph (c) which will be retained comports with FAR and VAAR standard usage and reference to paragraph (d) is unnecessary. The authorities cited for this part are 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301–1.304. In subpart 809.1, Responsible Prospective Contractors, we propose to delete 809.104, Standards (no text), and 809.104–2, Special standards, as it includes internal VA procedural guidance and will be moved to the VAAM. PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 We propose to delete subpart 809.2, Qualifications Requirements, as the policy and procedures relating to the establishment of qualification requirements are no longer being used by VA and have been deemed unnecessary. As a result of this change, 809.202, Policy, which designated the HCA as the authority for establishing a qualification requirement in accordance with FAR 9.202(a)(1) is also being removed. This rulemaking also proposes to remove 809.206, Acquisitions subject to qualification requirements, which contained no text. We also propose to remove 809.206–1, General, consisting of one sentence that provided that HCAs may determine that an emergency exists as provided by FAR 9.206–1(b); and 809.270, Qualified products for convenience/labor-saving foods, which provided internal guidance to Veterans Integrated Service Networks. All of the sections are being deleted as the Department is no longer using Qualified Product Lists. We propose to revise subpart 809.4, Debarment, Suspension, and Ineligibility. In section 809.400, Scope of subpart, we propose to clarify that the policy supplements the FAR coverage under FAR subpart 9.4 and prescribes VA’s procedures for the suspension and debarment of contractors. We propose to revise 809.402, Policy, which would establish that when VA is considering a debarment or suspension action, the Suspension and Debarment (S&D) Committee shall coordinate the action with the Interagency Committee on Debarment and Suspension in order to identify other agencies with an interest in the action, and to identify the agency that will take the lead on the action. We propose to add 809.403, Definitions. This section would define the terms that are used through subpart 809.4, Debarment, Suspension, and Ineligibility, including the S&D Committee and the Suspending and Debarring Official (SDO). We propose to remove 809.404, Excluded Parties List System, as this system has been replaced by the System for Award Management (SAM) and the FAR has sufficient coverage in this area. We propose to revise 809.405, Effect of listing, to state that the authority to determine whether to solicit from, evaluate bids or proposals from, or award contracts to contractors with active exclusions in SAM is delegated to the Suspending and Debarring Official (SDO). The revised section also establishes that this authority is further delegated to the head of the contracting activity (HCA) or their designee. We propose to revise 809.405–1, E:\FR\FM\20APP1.SGM 20APP1 jbell on DSKJLSW7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules Continuation of current contracts, and 809.405–2, Restrictions on subcontracting, to delegate the authority to the SDO, who further delegates the authority to the HCA or designee to make the determinations described under these sections. Under 809.406, Debarment, we propose to revise 809.406–1, General, to delegate to the SDO the authority to determine whether to continue business dealings between VA and a contractor suspended, proposed for debarment, or debarred. In 809.406–2, Causes for debarment, we propose to revise the title to comport with the FAR and to remove the existing language and reflect no text. The coverage would be moved to a new section that follows. We propose to add new section 809.406–270, Additional causes for debarment, to reflect VA’s program that would conform with the governing statute 38 U.S.C. 8127(g), Enforcement Penalties for Misrepresentation, to state that any business concern that has willfully and intentionally misrepresented the status of that concern as a small business concern owned and controlled by veterans or as a small business concern owned and controlled by servicedisabled veterans pursuant to this section shall be debarred for no less than 5 years. It would also provide a definition for ‘‘willful and intentional’’ misrepresentations for the purposes of debarment actions taken pursuant to 38 U.S.C. 8127(g). We propose to revise 809.406–3, Procedures, to provide to the public the updated procedures for debarments and to provide the responsibilities of the SDO and Suspension and Debarment (S&D) Committee. This section apprises contractors of their rights when they have been notified of their proposed debarment. We propose to revise 809.406–4, Period of debarment, to inform prospective vendors that the period of debarment for willful and intentional misrepresentations of SDVOSB or VOSB status pursuant to 809.406–270(b) shall not be less than 5 years. Under 809.407, Suspension, we propose to revise 809.407–1, General, to reflect that the authority to determine whether to continue to contract with a suspended contractor has been delegated to the HCAs. We propose to revise 809.407–3, Procedures, to apprise contractors of their rights when they have been notified of their proposed suspension. It has been revised to reflect the updated procedures. We propose to revise section 809.470, Fact-finding procedures, to inform the contractor or individual that they may submit VerDate Sep<11>2014 16:24 Apr 17, 2020 Jkt 250001 documentary evidence, present witnesses, and confront any person the agency presents in the case of a suspension or debarment. We propose to delete 809.503, Waiver, and move it to the VAAM as it provides internal procedural guidance. We propose to delete 809.504, Contracting officer responsibilities, and move it to the VAAM as it provides procedural guidance to VA’s contracting officers. We propose to revise section 809.507– 1, Solicitation provision, to correctly identify 852.209–70 as a provision that must be included in any solicitation for the contracts outlined in FAR 9.502 which might have the potential for conflicts of interest. It was previously incorrectly referred to as a clause. VAAR Part 841—Acquisition of Utility Services Under part 841, Acquisition of Utility Services, we propose to add the authority citation for 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. We propose to revise the authority citation of 40 U.S.C. 121, to remove the reference to paragraph (d), as paragraph (c) which will be retained comports with FAR and VAAR standard usage and reference to paragraph (d) is unnecessary. The authorities cited for this part are 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301–1.304. We propose to revise subpart 841.1, General, by deleting 841.100, Scope of part, as the section limited the scope of the part to connection charges and since the revised part 841 would cover the full breadth of utility services, and 841.103, Statutory and delegated authority, and to move it to the VAAM as it represents internal guidance to contracting officers. We propose to add section 841.102, Applicability, to clarify that the part applies to acquisitions of utility services from both regulated and nonregulated utility suppliers and that when energy is acquired as a commodity it is considered to be purchase of supplies rather than utility services. We propose to delete subpart 841.2, Acquiring Utility Services, as its requirements for technical and legal review are redundant with Part 801. We propose to add subpart 841.5, Solicitation Provision and Contract Clauses, and sections 841.501, Solicitation provision and contract clauses (no text), and 841.501–70, PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 21813 Disputes—Utility contracts, which prescribes the use of new clause 852.841–70, Disputes—Utility Contracts, in solicitations and contracts for utility services subject to the jurisdiction and regulation of a utility rate commission. VAAR Part 842—Contract Administration and Audit Services We propose to revise section 842.000, Scope of part, to clarify that the part prescribes policies and procedures for contract administration and audit services for Department of Veteran Affairs (VA) contracts. We propose to revise 842.070, Definitions, to revise the definition of ‘‘Contract Administration’’ to provide more detail. We also propose to add a definition for ‘‘Administrative Contracting Officer Letter of Delegation’’ to the section. We propose to delete subpart 842.1, Contract Audit Services. Under the subpart, we propose to delete 842.101, Contract audit responsibilities, because the FAR guidance is sufficient in terms of policy, and the procedural guidance was moved to the VAAM. We also propose to remove 842.102, Assignment of contract audit services, from the VAAR as it provides internal guidance to VA’s contracting officers on how to obtain contract audit services and move coverage to the VAAM. We propose to revise subpart 842.2, Contract Administration Services, to add section 842.270, Contracting Officer’s Representatives’ role in contract administration, to provide policy on the appointment of the Contracting Officer’s Representative in contract administration. We propose to redesignate 842.271, Contract clause for Government construction contract administration, to 842.272 as we propose to add a new section, title and content at 842.271. The new section 842.271, Administrative Contracting Officer’s role in contract administration and delegated functions, describes the requisite ACO Letter of Delegation and the limitations of ACO authority, and in paragraph (d) would prescribe clause 852.242–71, Administrative Contracting Officer. Under the revision to subpart 842.2, the newly added 842.272, Contract clause for Government construction contract administration, prescribes clause 852.242–70, Government Construction Contract Administration, and revises the prescription for use in solicitations and contracts for construction expected to exceed the micro-purchase threshold by adding the words ‘‘,when contract administration is delegated’’ at the end of the prescription to reflect that the clause would only be inserted by the E:\FR\FM\20APP1.SGM 20APP1 21814 Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS contracting officer when contract administration is delegated to another contracting activity or contracting officer. We propose to revise section 842.705, Final indirect cost rates, to require contracting officers to request audits on proposed final indirect cost rates and billing rates for use in cost reimbursement and fixed-price incentive contracts except when quick closeout procedures are used. We propose to remove paragraph (b) of the existing text as internal procedural guidance and move it to the VAAM. We propose to delete subpart 842.8, Disallowance of Costs. We propose to delete 842.801–70, Audit assistance prior to disallowing costs, as it references an office that no longer exists. We propose to delete 842.803, Disallowing costs after incurrence, which emphasizes that COs cannot exceed their contracting authority which is redundant to the FAR. We propose to revise subpart 842.12, Novation and Change-of-Name Agreements, to add 842.1202, Responsibility for executing agreements, which provides detailed policy requirements regarding responsibilities for executing agreements related to a successor in interest to, or a change of name of a contractor. This is information that is relevant to the public at large as to how such modifications will be processed. We propose to remove 842.1203, Processing agreements, as the VAAR coverage provided is redundant to FAR 42.1203. Internal requirements for OGC legal counsel review have been moved to the VAAM. VAAR Part 852—Solicitation Provisions and Contract Clauses In subpart 852.2, Text of Provisions and Clauses, we propose to revise provision 852.209–70, Organizational Conflicts of Interest, to remove an outdated citation and to correct capitalization. The remaining language in the provision is unchanged. We propose to add clause 852.241–70, Disputes—Utility Contracts, to provide that matters involving the interpretation of tariffed retail rates, tariff rate schedules, and tariffed terms provided under this contract are subject to any determinations by the independent regulatory body having jurisdiction. We propose to revise clause 852.242– 70, Government Construction Contract Administration, for use in all construction solicitations and contracts expected to exceed the micro-purchase threshold, when contract administration is delegated. The text of the clause remains the same, but the first sentence VerDate Sep<11>2014 16:24 Apr 17, 2020 Jkt 250001 ‘‘As prescribed in 842.271, . . .’’ is revised to ‘‘As prescribed in 842.272, . . .’’ to reflect the new designation as this rule has added different content at 842.271. The clause authorizes the contracting officer to delegate contract administration authority to another contracting officer, and to designate another VA employee to act as resident engineer at the construction site with limited and specific authority. We propose to add clause 852.242–71, Administrative Contracting Officer, for use in all construction solicitations and contracts expected to exceed the micropurchase threshold, which states that the contracting officer reserves the right to designate an Administrative Contracting Officer (ACO) for the purpose of performing certain tasks/ duties in the administration of the contract and that the designation will be in writing through an ACO Letter of Delegation. 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, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). E.O. 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. 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 an E.O. 13771 regulatory action because this proposed rule is not significant under E.O. 12866. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi). This proposed rule contains one provision constituting a collection of information at 48 CFR 809.507–1 and 48 CFR 852.209–70 which require offerors on solicitations for management support and consulting services to advise, as part of the firm’s offer, whether or not award of the contract to the firm might involve a conflict of interest and, if so, to disclose all relevant facts regarding the conflict. The information is used by the contracting officer to determine whether or not to award a contract to the firm or, if a contract is to be awarded despite a potential conflict, whether or not additional contract terms and conditions are necessary to mitigate the conflict. No new collection of information is associated with this provision as a part of this proposed rule. The information collection requirement for 809.507–1 and 852.209–70 is currently approved by OMB and has been assigned OMB control number 2900–0418. This rule amends this information collection requirement to revise 809.507–1 to designate 852.209– 70 as a provision instead of a clause. For the requested administrative amendments to VAAR 852.209–70, as required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA will submit this information collection amendment to OMB for its review. Regulatory Flexibility Act The Secretary hereby certifies that 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 rulemaking does not change VA’s policy regarding small businesses, does not have an economic impact to individual businesses, and there are no increased or decreased costs to small business entities. On this basis, the proposed rule would not have an economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601–612. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply. 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 E:\FR\FM\20APP1.SGM 20APP1 Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules 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 will have no such effect on State, local, and tribal Governments or on the private sector. 48 CFR Part 802 Government procurement. This subpart implements FAR subpart 9.4 and prescribes VA’s procedures and related actions for the suspension and debarment of contractors. (a) Notwithstanding the suspension, proposed debarment, or debarment of a contractor, VA may continue contracts or subcontracts in existence at the time the contractor was suspended, proposed for debarment, or debarred, unless the cognizant head of the contracting activity (HCA) directs otherwise. Examples of factors to be considered include, but are not limited to, potential costs associated with a termination, possible disruption to VA program objectives, and integrity of VA acquisition programs. (b) Authority to make the determinations under FAR 9.405–1(b) is delegated to the SDO and is further delegated to the HCA, who may delegate this authority, in writing, to a designee. The HCA or their designee must make a written determination of the compelling reasons in accordance with FAR 9.405–1(b). Compelling reasons for the purposes of FAR 9.405–1(b) include, but are not limited to, urgency of the need for new or continued work, lengthy time period to acquire the new work from other sources and meeting estimated quantity for requirements contracts. 809.402 809.405–2 3. The authority citation for part 809 is revised to read as follows: ■ Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301–1.304. 48 CFR Part 809 4. Sections 809.104 and 809.104–2 are removed. Government procurement, Reporting and recordkeeping requirements. Subpart 809.2 [Removed and Reserved] 48 CFR Part 841 ■ ■ 48 CFR Part 842 5. Subpart 809.2, consisting of sections 809.201, 809.202, 809.204, 809.206, 809.206–1, and 809.270 is removed. Accounting, Government procurement. Subpart 809.4—Debarment, Suspension, and Ineligibility 48 CFR Part 852 ■ Government procurement, Utilities. Government procurement, Reporting and recordkeeping requirements. Signing Authority The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Pamela Powers, Chief of Staff, Performing the Delegable Duties of the Deputy Secretary, Department of Veterans Affairs, approved this document on April 8, 2020, for publication. Consuela Benjamin, Regulation 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 amend 48 CFR to revise parts 802, 809, 841, 842 and 852 as follows: PART 802—DEFINITIONS OF WORDS AND TERMS Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301–1.304. 802.101 [AMENDED] 2. Section 802.101 is amended to remove the definitions for ‘‘Suspending and Debarring Official (SDO)’’ and ‘‘Suspension and Debarment Committee (S&D Committee).’’ ■ VerDate Sep<11>2014 16:24 Apr 17, 2020 Jkt 250001 6. Subpart 809.4 is revised to read as follows: 809.400 Scope of subpart. Policy. (b) Statutory debarments pursuant to the authority of 38 U.S.C. 8127(g), Enforcement Penalties for Misrepresentation, are mandatory when the determination is made that a business concern has willfully and intentionally misrepresented its status as a service-disabled, Veteran-owned small business or Veteran-owned small business. 809.403 Definitions. Suspension & Debarment (S&D) Committee means a committee authorized by the SDO to assist the SDO with suspension and debarment related matters. Suspending and Debarring Official (SDO) means the individual responsible for final decisions regarding suspension and debarment, as appointed by the agency. 809.405 1. The authority citation for part 802 continues to read as follows: ■ jbell on DSKJLSW7X2PROD with PROPOSALS 809.405–1 Continuation of current contracts. PART 809—CONTRACTOR QUALIFICATIONS Subpart 809.1—Responsible Prospective Contractors 809.104 and 809.104–2 [Removed] List of Subjects 21815 Effect of listing. The authority under FAR 9.405(a), 9.405(d)(2), and 9.405(d)(3) to determine whether to solicit from, evaluate bids or proposals from, or award contracts to contractors with active exclusions in the System for Award Management (SAM) is delegated to the Suspending and Debarring Official (SDO). This authority is further delegated to the HCAs, who may delegate this authority, in writing, to a designee. PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 Restrictions on subcontracting. Authority to make the written determination required under FAR 9.405–2 consenting to a contractor’s use of a subcontractor who is suspended, proposed for debarment, or debarred is delegated to the SDO. This authority is further delegated to the HCA, who may delegate this authority, in writing, to a designee. 809.406 Debarment. 809.406–1 General. (a) For the purposes of FAR 9.406–1, the SDO’s authority includes debarments pursuant to the Federal Management Regulation at 41 CFR 102– 117.295. In addition to the factors listed in FAR 9.406–1, the SDO may consider the following examples before arriving at a debarment decision: (1) Whether the contractor had a mechanism, such as a hotline, by which employees could have reported suspected instances of improper conduct, and instructions in place that encouraged employees to make such reports; or (2) Whether the contractor conducted periodic reviews of company business practices, procedures, policies, and internal controls for compliance with standards of conduct and the special requirements of Government contracting. E:\FR\FM\20APP1.SGM 20APP1 21816 Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules (c) As provided in FAR 9.406–1(c), authority to determine whether to continue business dealings between VA and a contractor suspended, proposed for debarment, or debarred is delegated to the SDO. 809.406–2 Causes for debarment. jbell on DSKJLSW7X2PROD with PROPOSALS 809.406–270 debarment. Additional causes for (a) Discretionary causes. (1) In addition to the causes listed in FAR 9.406–2 (a) through (c), the SDO may debar contractors, based upon a preponderance of the evidence (as defined at FAR 2.101), for the Government’s protection, for— (i) Any deliberate violation of the limitation on subcontracting clause requirements for acquisitions under subpart 819.70; or (ii) Failure to observe the material provisions of a voluntary exclusion or an administrative agreement. (2) The period of debarment shall be commensurate with the seriousness of the action. (b) Statutory cause. (1) Pursuant to 38 U.S.C. 8127(g), Enforcement Penalties for Misrepresentation, the SDO shall debar, from contracting with VA, for a period of not less than five years, any business concern that has willfully and intentionally misrepresented the status of that concern as a small business concern owned and controlled by Veterans or as a small business concern owned and controlled by servicedisabled Veterans. (2) Debarment of a business concern pursuant to 38 U.S.C. 8127(g) shall include the debarment of all principals in the business concern. Debarment shall be for a period of not less than five years. (3) ‘‘Willful and intentional’’ misrepresentations, for the purpose of debarment actions taken pursuant to 38 U.S.C. 8127(g), are defined as deliberate misrepresentations concerning the status of the concern as a small business concern owned and controlled by Veterans or as a small business concern owned and controlled by servicedisabled Veterans as supported by the preponderance of evidence. Examples of a preponderance of evidence for deliberate misrepresentation of SDVOSB and/or VOSB status include but are not limited to: Criminal convictions, plea agreements, deferred prosecution agreements, Board of Contract Appeals decisions, and admissions of guilt. 809.406–3 Procedures. (a) Any individual may submit a referral to debar an individual or contractor to the SDO or to the S&D Committee. The referral for debarment VerDate Sep<11>2014 16:24 Apr 17, 2020 Jkt 250001 shall be supported with evidence of a cause for debarment listed in FAR 9.406–2, or 809.406–2. The SDO shall forward referrals for debarment to the S&D Committee. If the referring individual is a VA employee and the referral for debarment is based on possible criminal or fraudulent activities, the VA employee shall also refer the matter to the VA Office of Inspector General. (b) When the S&D Committee finds preponderance of the evidence for a cause for debarment, as listed in FAR 9.406–2 or 809.406–2, it shall prepare a recommendation and draft notice of proposed debarment for the SDO’s consideration. (c) VA shall send the notice of proposed debarment to the last known address of the individual or contractor, the individual or contractor’s counsel, or agent for service of process, by certified mail, return receipt requested, or any other means that allows for confirmation of delivery. In the case of a contractor, VA may send the notice of proposed debarment to any partner, principal, officer, director, owner or coowner, or joint venture. The S&D Committee concurrently shall list the appropriate parties as excluded in the SAM in accordance with FAR 9.404. (d) If VA does not receive a reply from the contractor within 30 days after sending the notice of proposed debarment, the S&D Committee shall prepare a recommendation and refer the case to the SDO for a decision on whether or not to debar based on the information available. (e) If VA receives a reply from the contractor within 30 days after sending the notice of proposed debarment, the S&D Committee shall consider the information in the reply before the S&D Committee makes its recommendation to the SDO. (f) The S&D Committee, upon the request of the contractor proposed for debarment, shall, as soon as practicable, allow the contractor an opportunity to appear before the S&D Committee to present information or argument personally or through a representative. The contractor may supplement the oral presentation with written information and argument. VA shall conduct the proceeding in an informal manner and without requirement for a transcript. (g) If the S&D Committee finds the contractor’s or individual’s submission in opposition to the proposed debarment raises a genuine dispute over facts material to the proposed debarment and the debarment action is not based on a conviction or civil judgment, the S&D Committee shall submit to the SDO the information PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 establishing the dispute of material facts. If the SDO agrees there is a genuine dispute of material facts, the SDO shall refer the dispute to a designee for a resolution pursuant to 809.470, Fact-finding procedures. The S&D Committee shall provide the contractor or individual the disputed material fact(s). Decisions and determinations of VA’s Center for Verification and Evaluation (CVE) or Office of Small and Disadvantaged Business Utilization (OSDBU), such as status protest decisions, and size determinations of the SBA shall not be subject to dispute or fact-finding in proposed debarment actions. The S&D Committee and SDO shall accept these decisions and determinations as resolved facts. (h) If the proposed debarment action is based on a conviction or civil judgment, or if there are no disputes over material facts, or if any disputes over material facts have been resolved pursuant to 809.470, Fact-finding procedures, the SDO shall make a decision on the basis of all information available including any written findings of fact submitted by the designated fact finder, and oral or written agreements presented or submitted to the S&D Committee by the contractor. (i) In actions processed under FAR 9.406 where no suspension is in place and where fact finding is not required, the VA shall make the final decision on the proposed debarment within 30 working days after receipt of any information and argument submitted by the contractor, unless the SDO extends this period for a good cause. (j) In actions processed under 809.406–270(b), the SDO notifies the individuals and/or contractors of the determination of willful and intentional misrepresentation in the notice of proposed debarment. VA shall issue the final decision, removing or upholding the determination, within 90 days after SDO’s determination of willful and intentional misrepresentation. 809.406–4 Period of debarment. (a) The SDO will base the period of debarment on the circumstances surrounding the cause(s) for debarment. (b) The SDO may remove a debarment imposed under FAR 9.406, amend its scope, or reduce the period of debarment based on a S&D Committee recommendation if— (1) VA has debarred the contractor; and (2) The debarring official concurs with documentary evidence submitted by or on behalf of the contractor setting forth the appropriate grounds for granting relief. Appropriate grounds include newly discovered material E:\FR\FM\20APP1.SGM 20APP1 Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules evidence, reversal of a conviction, bona fide change of ownership or management, elimination of the cause for which debarment was imposed, or any other appropriate grounds. (c) The period of debarment for willful and intentional misrepresentations of SDVOSB or VOSB status pursuant to 809.406–270(b) shall not be less than 5 years. 809.407 Suspension. 809.407–1 General. (a) As provided in FAR 9.407–1(d), authority to determine whether to continue business dealings between VA and a suspended contractor is delegated to the HCAs. Compelling reasons include, but are not limited to, urgency of the need for new or continued work, lengthy time period to acquire the new work from other sources, and meeting estimated quantities for requirements contracts. (b) For the purposes of FAR 9.407–1, the SDO is the suspending official under the Federal Management Regulation at 41 CFR 102–117.295. jbell on DSKJLSW7X2PROD with PROPOSALS 809.407–3 Procedures. (a) Any individual may submit a referral to suspend an individual or contractor to the SDO or to the S&D Committee. Referrals shall include supporting evidence of a cause for suspension listed in FAR 9.407–2. The SDO shall forward the referral to the S&D Committee. If the referring individual is a VA employee and the referral for suspension is based on possible criminal or fraudulent activities, the VA employee shall also refer the matter to the VA Office of Inspector General. (b) When the S&D Committee finds adequate evidence of a cause for suspension, as listed in FAR 9.407–2, it shall prepare a recommendation and draft notice of suspension for the SDO’s consideration. (c) VA shall send the notice of suspension to the last known address of the individual or contractor, the individual or contractor’s counsel, or agent for service of process, by certified mail, return receipt requested, or any other means that allows for confirmation of delivery. In the case of a contractor, VA may send the notice of suspension to any partner, principal, officer, director, owner or co-owner, or joint venture. The S&D Committee concurrently shall list the appropriate parties as excluded in SAM in accordance with FAR 9.404. (d) If VA receives a reply from the contractor within 30 days after receipt of the notice of suspension, the S&D VerDate Sep<11>2014 16:24 Apr 17, 2020 Jkt 250001 Committee shall consider the information in the reply before the Committee makes further recommendations to the SDO. The S&D Committee, upon the request of a suspended contractor, shall, as soon as practicable, allow the contractor an opportunity to appear before the S&D Committee to present information or argument personally or through a representative. The contractor may supplement the oral presentation with written information and argument. The proceeding will be conducted in an informal manner and without requirement for a transcript. (e) For the purposes of FAR 9.407– 3(b)(2), Decision making process, in actions not based on an indictment, if the S&D Committee finds that the contractor’s submission in opposition to the suspension raises a genuine dispute over facts material to the suspension, the S&D Committee shall submit to the SDO the information establishing the dispute of material facts. However, the S&D Committee may first coordinate any further proceeding regarding the material facts in dispute with the Department of Justice or with a State prosecuting authority in a case involving a State jurisdiction. VA shall take no further action to determine disputed material facts pursuant to this section or 809.470 if the Department of Justice or a State prosecuting authority advises VA in writing that additional proceedings to make such a determination would prejudice Federal or State legal proceedings. (f) If the SDO agrees that there is a genuine dispute of material facts, the SDO shall refer the dispute to the designee for resolution pursuant to 809.470. 809.470 Fact-finding procedures. The provisions of this section constitute the procedures to be used to resolve genuine disputes of material fact pursuant to 809.406–3 and 809.407–3 of this subpart. The SDO shall appoint a designee to conduct the fact-finding. OGC shall represent VA at any factfinding hearing and may present witnesses for VA and question any witnesses presented by the contractor. The proceedings before the fact-finder will be limited to a finding of the facts in dispute, as determined by the SDO. The fact-finder shall establish the date for the fact-finding hearing, normally to be held within 30 days after the S&D Committee notifies the contractor or individual that the SDO has established a genuine dispute of material fact(s) exists. (a) The Government’s representative and the contractor will have an PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 21817 opportunity to present evidence relevant to the material fact(s) identified by the SDO. The contractor or individual may appear in person or through a representative at the factfinding hearing. The contractor or individual may submit documentary evidence, present witnesses, and confront any person the agency presents. (b) Witnesses may testify in person. Witnesses will be reminded of the official nature of the proceedings and that any false testimony given is subject to criminal prosecution. Witnesses are subject to cross-examination. Hearsay evidence may be presented and will be given appropriate weight by the factfinder. (c) The proceedings shall be transcribed and a copy of the transcript shall be made available at cost to the contractor upon request, unless the contractor and the fact-finder, by mutual agreement, waive the requirement for a transcript. (d) The fact-finder shall determine the disputed fact(s) by a preponderance of the evidence for proposed debarments, and by adequate evidence for suspensions. Written findings of fact shall be prepared by the fact-finder. A copy of the findings of fact shall be provided to the SDO, the Government’s representative, and the contractor or individual. The SDO will consider the written findings of fact in the decision regarding the suspension or proposed debarment. Subpart 809.5—Organizational and Consultant Conflicts of Interest 809.503 ■ [Removed] 7. Section 809.503 is removed. 809.504 [Removed] 8. Section 809.504 is removed. 9. Section 809.507–1 is revised to read as follows: ■ ■ 809.507–1 Solicitation provisions. (a) While conflicts of interest may not presently exist, award of certain types of contracts may create potential future organizational conflicts of interest (see FAR 9.508 for examples). If a solicitation may create a potential future organizational conflict of interest, the contracting officer shall insert a provision in the solicitation imposing an appropriate restraint on the contractor’s eligibility for award of contracts in the future. Under FAR 9.507–1, the restraint must be appropriate to the nature of the conflict and may exclude the contractor from award of one or more contracts in the future. E:\FR\FM\20APP1.SGM 20APP1 21818 Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules (b) The provision at 852.209–70, Organizational Conflicts of Interest, must be included in any solicitation for the services addressed in FAR 9.502. PART 841—ACQUISITION OF UTILITY SERVICES 10. The authority citation for part 841 is revised to read as follows: ■ Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301–1.304. Subpart 841.1—General 841.100 [Removed] 11. Section 841.100 is removed. 12. Section 841.102 is added to read as follows: ■ ■ 841.102 Applicability. (a) This part applies to purchases of utility services from nonregulated and regulated utility suppliers when a delegation of authority from GSA for those services is requested and obtained. (b)(4) The acquisition of energy, such as electricity, and natural or manufactured gas, when purchased as a commodity is considered to be acquisitions of supplies rather than utility services as described in FAR part 41. 841.103 ■ [Removed] 13. Section 841.103 is removed. 841.2 14. Subpart 841.2 is removed and reserved. ■ 15. Subpart 841.5 is added to read as follows: ■ 841.501 Solicitation provision and contract clauses. Disputes—Utility contracts. PART 842—CONTRACT ADMINISTRATION AND AUDIT SERVICES 16. The authority citation for part 842 continues to read as follows: jbell on DSKJLSW7X2PROD with PROPOSALS ■ Authority 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301–1.304. 17. Section 842.000 is revised to read as follows: ■ Scope of part. This part prescribes policies and procedures for contract administration 16:24 Apr 17, 2020 Jkt 250001 As used in this part— Contract administration means Government actions taken after contract award to obtain compliance with such contract requirements as timely delivery of supplies or services, acceptance, payment, and closing of the contract. These actions include, but are not limited to, technical, financial, audit, legal, administrative, and managerial services in support of the contracting officer. It may include additional tasks requested of designated contract administration offices within VA in support of pre-award activities for solicitations issued by or awarded by other contracting activities through Interagency Acquisitions. Administrative Contracting Officer Letter of Delegation means a delegation of functions as set forth in FAR 42.202, 42.302 and 842.271, Administrative Contracting Officer’s role in contract administration and delegated functions, that is issued by a contracting officer to delegate certain contract administration or specialized support services. 842.271 Administrative Contracting Officer’s role in contract administration and delegated functions. (a) Contracting officers are authorized to delegate certain contract administration or specialized support services in accordance with FAR 42.202 and 42.302 to cognizant VA administrative contracting officers. (b) The Administrative Contracting Officer’s authority is limited to the actions detailed in the delegation. (c) These delegations of authority shall be set forth in a written Administrative Contracting Officer (ACO) Letter of Delegation issued by the contracting officer to the accepting contract administration office and designated administrative contracting officer. The ACO Letter of Delegation shall contain the information required in FAR 42.202(a) through (c) and identify the responsibilities and limitations of the ACO. A copy of the delegation will be furnished to the contractor and the ACO. (d) The contracting officer shall insert the clause at 852.242–71, Administrative Contracting Officer, in solicitations and contracts expected to exceed the micro-purchase threshold. 842.272 Contract clause for Government construction contract administration. ■ The contracting officer shall insert the clause at 852.242–70, Government Construction Contract Administration, in solicitations and contracts for construction expected to exceed the micro-purchase threshold, when contract administration is delegated. ■ 21. Section 842.705 is revised to read as follows: Subpart 842.2—Contract Administration Services 842.705 842.270 Contracting Officer’s Representatives’ role in contract administration. The contracting officer shall insert the clause at 852.841–70, Disputes—Utility Contracts, in solicitations and contracts for utility services subject to the jurisdiction and regulation of a utility rate commission. VerDate Sep<11>2014 Definitions. 19. Subpart 842.1 is removed and reserved. ■ 20. Subpart 842.2 is added to read as follows: Subpart 841.5—Solicitation Provision and Contract Clauses 842.000 842.070 Subpart 842. 1—[Removed and reserved] [Removed and reserved] 841.501–70 and audit services for all Department of Veterans Affairs (VA) contracting activities. ■ 18. Section 842.070 is revised to read as follows: (a) A contracting officer may designate a qualified person to be the Contracting Officer’s Representative (COR) for the purpose of performing certain technical functions in administering a contract. (b) The COR acts solely as a technical representative of the contracting officer and is not authorized to perform any function that results in a change in the scope, price, terms or conditions of the contract. (c) A COR designation must be made in writing by the contracting officer. The designation shall identify the responsibilities and limitations of the COR. A copy of the designation must be furnished to the contractor and the Administrative Contracting Officer (ACO), if separately assigned. PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 Final indirect cost rates. Except when the quick-closeout procedures described in FAR 42.708 are used, contracting officers shall request contract audits on proposed final indirect cost rates and billing rates for use in cost reimbursement and fixedprice incentive contracts as prescribed in FAR subpart 42.7. Subpart 842.8—[Removed and reserved] 22. Subpart 842.8 is removed and reserved. ■ Subpart 842.12—Novation and Change-of-Name Agreements 23. Section 842.1202 is added to read as follows: ■ 842.1202 Responsibility for executing agreements. To avoid duplication of effort on the part of VA contracting offices in preparing and executing agreements to E:\FR\FM\20APP1.SGM 20APP1 Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules recognize a change of name or successor in interest involving multiple contracts issued by VA activities, only one agreement will be prepared and executed between the Government and the parties (transferor and transferee) and will be processed as forth in FAR 42.1203. The Office of Acquisition and Logistics, Risk Management and Compliance Service will, in each case, designate a cognizant HCA responsible for assigning a contracting officer. The designated contracting officer shall be responsible for taking all necessary and appropriate actions with respect to either recognizing or not recognizing a successor in interest or recognizing a change of name agreement and processing and executing the agreements as set forth in VA procedures. 842.1203 ■ [Removed] 24. Section 842.1203 is removed. 26. Section 852.241–70 is added to read as follows: ■ PART 852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 852.241–70 Disputes—Utility Contracts (Date) 25. Section 852.209–70 is revised to read as follows: ■ Organizational Conflicts of As prescribed in 809.507–1(b), insert the following provision: jbell on DSKJLSW7X2PROD with PROPOSALS Organizational Conflicts of Interest (Date) (a) It is in the best interest of the Government to avoid situations which might create an organizational conflict of interest or where the Offeror’s performance of work under the contract may provide the Contractor with an unfair competitive advantage. The term ‘‘organizational conflict of interest’’ means that because of other activities or relationships with other persons, a person is unable to render impartial assistance or advice to the Government, or the person’s objectivity in performing the contract work is or might be otherwise impaired, or the person has an unfair competitive advantage. (b) The Offeror shall provide a statement with its offer which describes, in a concise manner, all relevant facts concerning any past, present, or currently planned interest (financial, contractual, organizational, or otherwise) or actual or potential organizational conflicts of interest relating to the services to be provided under this solicitation. The Offeror shall also provide statements with its offer containing the same information for any consultants and subcontractors identified in its proposal and which will provide services under the solicitation. The Offeror may also provide relevant facts that show how its organizational and/or management system or VerDate Sep<11>2014 16:24 Apr 17, 2020 Jkt 250001 Disputes—Utility Contracts. As prescribed in 841.501–70, insert the following clause: Subpart 852.2—Texts of Provisions and Clauses 852.209–70 Interest. other actions would avoid or mitigate any actual or potential organizational conflicts of interest. (c) Based on this information and any other information solicited or obtained by the Contracting Officer, the Contracting Officer may determine that an organizational conflict of interest exists which would warrant disqualifying the Contractor for award of the contract unless the organizational conflict of interest can be mitigated to the Contracting Officer’s satisfaction by negotiating terms and conditions of the contract to that effect. If the conflict of interest cannot be mitigated and if the Contracting Officer finds that it is in the best interest of the United States to award the contract, the Contracting Officer shall request a waiver in accordance with FAR 9.503. (d) Nondisclosure or misrepresentation of actual or potential organizational conflicts of interest at the time of the offer or arising as a result of a modification to the contract, may result in the termination of the contract at no expense to the Government. (End of provision) (a) Definition. As used in this clause, Independent regulatory body means the Federal Energy Regulatory Commission, a state-wide agency, or an agency with less than state-wide jurisdiction when operating pursuant to state authority. The body has the power to fix, establish, or control the rates and services of utility suppliers. (b) Independent Regulatory Body determinations. The requirements of the Disputes clause at FAR 52.233–1 are supplemented to provide that matters involving the interpretation of tariffed retail rates, tariff rate schedules, and tariffed terms provided under this contract are subject to any determinations by the independent regulatory body having jurisdiction. (End of clause) 27. Section 852.242–70 is revised to read as follows: ■ 852.242–70 Government Construction Contract Administration. As prescribed in 842.272, insert the following clause. This is a fill-in clause. Government Construction Contract Administration (Date) (a) Contract administration functions set forth in FAR 42.302 are hereby delegated to: [Insert name and office address of Contracting Officer] [Note: If any of the functions set forth in FAR 42.302 are to be retained by the Contracting Officer, identify those as well with the notation: ‘‘With the exception of the following contract administration functions: llll.’’Delete this notation if not required.] PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 21819 (b) The following functions will be retained by the Contracting Officer or Administrative Contracting Officer (ACO) and are not redelegable to Resident Engineers: (1) Award of contract modifications either through supplemental agreements or change orders that exceed the ACO’s appointed warrant limitations. (2) Issuance of default letters. (3) Issuance of Cure or Show-Cause Notices. (4) Suspension of work letters and/or modifications. (5) Issuance of Contracting Officer final determination letters. (6) Issuance of termination notices. (7) Authorization of final payment. (c) The work will be under the direction of a Department of Veterans Affairs Contracting Officer, who may designate another VA employee to act as resident engineer at the construction site who possesses limited warranted authority. (d) Except as provided below, the resident engineer’s directions will not conflict with or change contract requirements. Within the limits of any specific authority delegated by the Contracting Officer, the resident engineer may, by written direction, make changes in the work. The Contractor shall be advised of the extent of such authority prior to execution of any work under the contract. (e) The Contracting Officer or an Administrative Contracting Officer identified in paragraph (a) may further delegate limited authority and specialized support services responsibilities below to the following warranted Resident Engineer personnel on site, not to exceed the dollar value and threshold of their warrant: [Insert name and office address of Resident Engineer with limited authority] (1) Conduct post-award orientation conferences. (2) Issue administrative changes (see FAR 43.101) correcting errors or omissions, contractor address, facility or activity code, remittance address, computations which do not required additional contract funds, and other such changes. (3) For actions not to exceed $ [Insert dollar amount] negotiate and execute supplemental agreements resulting from change orders issued under the Changes clause. (4) Negotiate and execute supplemental agreements changing contract delivery schedules where the time extension does not exceed [Insert number] calendar days. (End of clause) 28. Section 852.242–71 is added to read as follows: ■ 852.242–71 Officer. Administrative Contracting As prescribed in 842.271, insert the following clause: Administrative Contracting Officer (Date) The Contracting Officer reserves the right to designate an Administrative Contracting Officer (ACO) for the purpose of performing certain tasks/duties in the administration of E:\FR\FM\20APP1.SGM 20APP1 21820 Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules the contract. Such designation will be in writing through an ACO Letter of Delegation and will identify the responsibilities and limitations of the ACO. A copy of the ACO Letter of Delegation will be furnished to the Contractor. (End of clause) [FR Doc. 2020–07799 Filed 4–17–20; 8:45 am] BILLING CODE 8320–01–P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration 49 CFR Parts 191 and 192 [Docket No. PHMSA–2019–0131] Pipeline Safety: Farm Taps Frequently Asked Questions Pipeline and Hazardous Materials Safety Administration (PHMSA); DOT. ACTION: Announcement of frequently asked questions; request for comments. AGENCY: The Pipeline and Hazardous Materials Safety Administration (PHMSA) is making available for comment a set of proposed frequently asked questions (FAQs) regarding individual service lines directly connected to production, gathering, or transmission pipelines, commonly referred to as farm taps. The proposed FAQs address the applicability of the Federal Pipeline Safety Regulations and include guidance related to the Exercise of Enforcement Discretion Regarding Farm Taps published in the Federal Register on March 26, 2019. DATES: Persons interested in submitting comments on the proposed farm tap FAQs must do so by June 19, 2020. ADDRESSES: You may submit comments, identified by docket number PHMSA– 2019–0131, by any of the following methods: • E-Gov Web: http:// www.regulations.gov. This site allows the public to enter comments on any Federal Register notice issued by any agency. Follow the online instructions for submitting comments. • Mail: Docket Management System: U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12–140, Washington, DC 20590–0001. • Hand Delivery: DOT Docket Management System: West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, between 9:00 a.m. and 5:00 p.m. EST, Monday through Friday, except federal holidays. • Fax: 202–493–2251. jbell on DSKJLSW7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:24 Apr 17, 2020 Jkt 250001 • Instructions: Identify the docket PHMSA–2019–0131, at the beginning of your comments. If you submit your comments by mail, submit two copies. If you wish to receive confirmation that PHMSA received your comments, include a self-addressed stamped postcard. Internet users may submit comments at http:// www.regulations.gov. • Privacy Act: DOT may solicit comments from the public regarding certain general notices. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL–14 FDMS), which can be reviewed at www.dot.gov/privacy. • Confidential Business Information: Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this document contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this document, it is important that you clearly designate the submitted comments as CBI. Pursuant to 49 CFR 190.343, you may ask PHMSA to give confidential treatment to information you give to the agency by taking the following steps: (1) Mark each page of the original document submission containing CBI as ‘‘Confidential’’; (2) send PHMSA, along with the original document, a second copy of the original document with the CBI deleted; and (3) explain why the information you are submitting is CBI. Unless you are notified otherwise, PHMSA will treat such marked submissions as confidential under FOIA, and they will not be placed in the public docket of this document. Submissions containing CBI should be sent to Sayler Palabrica at DOT, PHMSA, PHP–30, 1200 New Jersey Avenue SE, PHP–30, Washington, DC 20590–0001. Any commentary PHMSA receives that is not specifically designated as CBI will be placed in the public docket for this matter. • Docket: For access to the docket to read background documents or comments received, go to http:// www.regulations.gov. Follow the online instructions for accessing the dockets. Alternatively, you may review the documents in person at the street address listed above. FOR FURTHER INFORMATION CONTACT: General: Mr. Sayler Palabrica by PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 telephone at 202–366–0559, or email at sayler.palabrica@dot.gov. Technical: Mr. Chris McLaren by telephone at 281–216–4455, or email at chris.mclaren@dot.gov. SUPPLEMENTARY INFORMATION: PHMSA provides written clarification of the pipeline safety regulations (49 CFR parts 190–199) in the form of FAQs and other guidance materials. PHMSA is requesting public comment on a set of proposed FAQs intended to clarify, explain, and promote better understanding and implementation of the requirements in Parts 191 and 192 with respect to individual service pipelines directly connected to transmission, gathering, or production pipelines. These facilities are typically located in rural areas and are commonly known as ‘‘farm taps.’’ These proposed FAQs reflect PHMSA’s current application of the regulations to the specific implementation scenarios presented. However, there are many situations and configurations in which farm taps exist in gas pipeline systems, and individual FAQs cannot account for all possible scenarios. Operators may request written regulatory interpretations from PHMSA regarding specific situations in accordance with § 190.11. FAQs are provided to help the regulated community understand how to comply with the regulations, but they are not substantive rules themselves and do not create legally enforceable rights, assign duties, or impose new obligations not otherwise contained in the existing regulations and standards. However, an operator who is able to demonstrate compliance with the FAQs is likely to be able to demonstrate compliance with the relevant regulations. If a different course of action is taken by a pipeline operator, the operator must be able to demonstrate that its conduct is in accordance with the regulations. On January 23, 2017, PHMSA published a final rule titled ‘‘Operator Qualification, Cost Recovery, Accident and Incident Notification, and Other Pipeline Safety Changes’’ in the Federal Register (82 FR 7972). This final rule, effective March 24, 2017, excepted individual service lines directly connected to a transmission, gathering, or production pipeline from the distribution integrity management program (DIMP) regulations at § 192.1003(b). Instead, PHMSA added § 192.740, requiring periodic inspection and maintenance for pressureregulating, limiting, and overpressure protection devices on individual service lines directly connected to production, gathering, or transmission pipelines. E:\FR\FM\20APP1.SGM 20APP1

Agencies

[Federal Register Volume 85, Number 76 (Monday, April 20, 2020)]
[Proposed Rules]
[Pages 21811-21820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07799]


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

48 CFR Parts 802, 809, 841, 842, and 852

RIN 2900-AQ38


VA Acquisition Regulation: Contractor Qualifications; Acquisition 
of Utility Services; and Contract Administration and Audit Services

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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

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 the Federal 
Acquisition Regulation (FAR), to remove any procedural guidance 
internal to VA into the VA Acquisition Manual (VAAM), and to 
incorporate any new agency specific regulations or policies. These 
changes seek to streamline and align the VAAR with the FAR and remove 
outdated and duplicative requirements and reduce burden on contractors. 
The VAAM incorporates portions of the removed VAAR as well as other 
internal agency acquisition policy. VA will rewrite certain parts of 
the VAAR and VAAM, and as VAAR parts are rewritten, will publish them 
in the Federal Register. VA will combine related topics, as 
appropriate. This rulemaking revises VAAR coverage concerning 
Contractor Qualifications, Acquisition of Utility Services, and 
Contract Administration and Audit Services, as well as affected parts 
concerning Definitions of Words and Terms and Solicitation Provisions 
and Contract Clauses.

DATES: Comments must be received on or before June 19, 2020 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, Office of 
Regulation Policy and Management (00REG), Department of Veterans 
Affairs, 810

[[Page 21812]]

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 ``RIN 2900-AQ38--VA Acquisition Regulation: Contractor 
Qualifications; Acquisition of Utility Services; and Contract 
Administration and Audit Services.'' Copies of comments received will 
be available for public inspection in the Office of Regulation Policy 
and Management, Room 1064, 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 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 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 
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 the 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. The VAAM will not be finalized until corresponding VAAR 
parts are finalized, and therefore the VAAM is not yet available 
online.

VAAR Part 802--Definitions of Words and Terms

    Under part 802, we propose to amend Section 802.101 to remove 
definitions of ``Suspending and Debarring Official (SDO)'' and 
``Suspension and Debarment Committee (S&D Committee).''

VAAR Part 809--Contractor Qualifications

    Under part 809, Contractor Qualifications, we propose to add the 
authority citation for 41 U.S.C. 1702 which addresses the acquisition 
planning and management responsibilities of Chief Acquisition Officers 
and Senior Procurement Executives, to include implementation of unique 
procurement policies, regulations and standards of the executive 
agency.
    We propose to revise the authority citation of 40 U.S.C. 121 to 
remove the reference to paragraph (d), as paragraph (c) which will be 
retained comports with FAR and VAAR standard usage and reference to 
paragraph (d) is unnecessary. The authorities cited for this part are 
38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 
1.301-1.304.
    In subpart 809.1, Responsible Prospective Contractors, we propose 
to delete 809.104, Standards (no text), and 809.104-2, Special 
standards, as it includes internal VA procedural guidance and will be 
moved to the VAAM.
    We propose to delete subpart 809.2, Qualifications Requirements, as 
the policy and procedures relating to the establishment of 
qualification requirements are no longer being used by VA and have been 
deemed unnecessary. As a result of this change, 809.202, Policy, which 
designated the HCA as the authority for establishing a qualification 
requirement in accordance with FAR 9.202(a)(1) is also being removed.
    This rulemaking also proposes to remove 809.206, Acquisitions 
subject to qualification requirements, which contained no text. We also 
propose to remove 809.206-1, General, consisting of one sentence that 
provided that HCAs may determine that an emergency exists as provided 
by FAR 9.206-1(b); and 809.270, Qualified products for convenience/
labor-saving foods, which provided internal guidance to Veterans 
Integrated Service Networks. All of the sections are being deleted as 
the Department is no longer using Qualified Product Lists.
    We propose to revise subpart 809.4, Debarment, Suspension, and 
Ineligibility. In section 809.400, Scope of subpart, we propose to 
clarify that the policy supplements the FAR coverage under FAR subpart 
9.4 and prescribes VA's procedures for the suspension and debarment of 
contractors. We propose to revise 809.402, Policy, which would 
establish that when VA is considering a debarment or suspension action, 
the Suspension and Debarment (S&D) Committee shall coordinate the 
action with the Interagency Committee on Debarment and Suspension in 
order to identify other agencies with an interest in the action, and to 
identify the agency that will take the lead on the action.
    We propose to add 809.403, Definitions. This section would define 
the terms that are used through subpart 809.4, Debarment, Suspension, 
and Ineligibility, including the S&D Committee and the Suspending and 
Debarring Official (SDO).
    We propose to remove 809.404, Excluded Parties List System, as this 
system has been replaced by the System for Award Management (SAM) and 
the FAR has sufficient coverage in this area.
    We propose to revise 809.405, Effect of listing, to state that the 
authority to determine whether to solicit from, evaluate bids or 
proposals from, or award contracts to contractors with active 
exclusions in SAM is delegated to the Suspending and Debarring Official 
(SDO). The revised section also establishes that this authority is 
further delegated to the head of the contracting activity (HCA) or 
their designee. We propose to revise 809.405-1,

[[Page 21813]]

Continuation of current contracts, and 809.405-2, Restrictions on 
subcontracting, to delegate the authority to the SDO, who further 
delegates the authority to the HCA or designee to make the 
determinations described under these sections.
    Under 809.406, Debarment, we propose to revise 809.406-1, General, 
to delegate to the SDO the authority to determine whether to continue 
business dealings between VA and a contractor suspended, proposed for 
debarment, or debarred.
    In 809.406-2, Causes for debarment, we propose to revise the title 
to comport with the FAR and to remove the existing language and reflect 
no text. The coverage would be moved to a new section that follows. We 
propose to add new section 809.406-270, Additional causes for 
debarment, to reflect VA's program that would conform with the 
governing statute 38 U.S.C. 8127(g), Enforcement Penalties for 
Misrepresentation, to state that any business concern that has 
willfully and intentionally misrepresented the status of that concern 
as a small business concern owned and controlled by veterans or as a 
small business concern owned and controlled by service-disabled 
veterans pursuant to this section shall be debarred for no less than 5 
years. It would also provide a definition for ``willful and 
intentional'' misrepresentations for the purposes of debarment actions 
taken pursuant to 38 U.S.C. 8127(g).
    We propose to revise 809.406-3, Procedures, to provide to the 
public the updated procedures for debarments and to provide the 
responsibilities of the SDO and Suspension and Debarment (S&D) 
Committee. This section apprises contractors of their rights when they 
have been notified of their proposed debarment.
    We propose to revise 809.406-4, Period of debarment, to inform 
prospective vendors that the period of debarment for willful and 
intentional misrepresentations of SDVOSB or VOSB status pursuant to 
809.406-270(b) shall not be less than 5 years.
    Under 809.407, Suspension, we propose to revise 809.407-1, General, 
to reflect that the authority to determine whether to continue to 
contract with a suspended contractor has been delegated to the HCAs. We 
propose to revise 809.407-3, Procedures, to apprise contractors of 
their rights when they have been notified of their proposed suspension. 
It has been revised to reflect the updated procedures. We propose to 
revise section 809.470, Fact-finding procedures, to inform the 
contractor or individual that they may submit documentary evidence, 
present witnesses, and confront any person the agency presents in the 
case of a suspension or debarment.
    We propose to delete 809.503, Waiver, and move it to the VAAM as it 
provides internal procedural guidance. We propose to delete 809.504, 
Contracting officer responsibilities, and move it to the VAAM as it 
provides procedural guidance to VA's contracting officers.
    We propose to revise section 809.507-1, Solicitation provision, to 
correctly identify 852.209-70 as a provision that must be included in 
any solicitation for the contracts outlined in FAR 9.502 which might 
have the potential for conflicts of interest. It was previously 
incorrectly referred to as a clause.

VAAR Part 841--Acquisition of Utility Services

    Under part 841, Acquisition of Utility Services, we propose to add 
the authority citation for 41 U.S.C. 1702 which addresses the 
acquisition planning and management responsibilities of Chief 
Acquisition Officers and Senior Procurement Executives, to include 
implementation of unique procurement policies, regulations and 
standards of the executive agency.
    We propose to revise the authority citation of 40 U.S.C. 121, to 
remove the reference to paragraph (d), as paragraph (c) which will be 
retained comports with FAR and VAAR standard usage and reference to 
paragraph (d) is unnecessary. The authorities cited for this part are 
40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
    We propose to revise subpart 841.1, General, by deleting 841.100, 
Scope of part, as the section limited the scope of the part to 
connection charges and since the revised part 841 would cover the full 
breadth of utility services, and 841.103, Statutory and delegated 
authority, and to move it to the VAAM as it represents internal 
guidance to contracting officers.
    We propose to add section 841.102, Applicability, to clarify that 
the part applies to acquisitions of utility services from both 
regulated and nonregulated utility suppliers and that when energy is 
acquired as a commodity it is considered to be purchase of supplies 
rather than utility services.
    We propose to delete subpart 841.2, Acquiring Utility Services, as 
its requirements for technical and legal review are redundant with Part 
801.
    We propose to add subpart 841.5, Solicitation Provision and 
Contract Clauses, and sections 841.501, Solicitation provision and 
contract clauses (no text), and 841.501-70, Disputes--Utility 
contracts, which prescribes the use of new clause 852.841-70, 
Disputes--Utility Contracts, in solicitations and contracts for utility 
services subject to the jurisdiction and regulation of a utility rate 
commission.
VAAR Part 842--Contract Administration and Audit Services
    We propose to revise section 842.000, Scope of part, to clarify 
that the part prescribes policies and procedures for contract 
administration and audit services for Department of Veteran Affairs 
(VA) contracts. We propose to revise 842.070, Definitions, to revise 
the definition of ``Contract Administration'' to provide more detail. 
We also propose to add a definition for ``Administrative Contracting 
Officer Letter of Delegation'' to the section.
    We propose to delete subpart 842.1, Contract Audit Services. Under 
the subpart, we propose to delete 842.101, Contract audit 
responsibilities, because the FAR guidance is sufficient in terms of 
policy, and the procedural guidance was moved to the VAAM. We also 
propose to remove 842.102, Assignment of contract audit services, from 
the VAAR as it provides internal guidance to VA's contracting officers 
on how to obtain contract audit services and move coverage to the VAAM.
    We propose to revise subpart 842.2, Contract Administration 
Services, to add section 842.270, Contracting Officer's 
Representatives' role in contract administration, to provide policy on 
the appointment of the Contracting Officer's Representative in contract 
administration. We propose to redesignate 842.271, Contract clause for 
Government construction contract administration, to 842.272 as we 
propose to add a new section, title and content at 842.271. The new 
section 842.271, Administrative Contracting Officer's role in contract 
administration and delegated functions, describes the requisite ACO 
Letter of Delegation and the limitations of ACO authority, and in 
paragraph (d) would prescribe clause 852.242-71, Administrative 
Contracting Officer. Under the revision to subpart 842.2, the newly 
added 842.272, Contract clause for Government construction contract 
administration, prescribes clause 852.242-70, Government Construction 
Contract Administration, and revises the prescription for use in 
solicitations and contracts for construction expected to exceed the 
micro-purchase threshold by adding the words ``,when contract 
administration is delegated'' at the end of the prescription to reflect 
that the clause would only be inserted by the

[[Page 21814]]

contracting officer when contract administration is delegated to 
another contracting activity or contracting officer.
    We propose to revise section 842.705, Final indirect cost rates, to 
require contracting officers to request audits on proposed final 
indirect cost rates and billing rates for use in cost reimbursement and 
fixed-price incentive contracts except when quick closeout procedures 
are used. We propose to remove paragraph (b) of the existing text as 
internal procedural guidance and move it to the VAAM.
    We propose to delete subpart 842.8, Disallowance of Costs. We 
propose to delete 842.801-70, Audit assistance prior to disallowing 
costs, as it references an office that no longer exists. We propose to 
delete 842.803, Disallowing costs after incurrence, which emphasizes 
that COs cannot exceed their contracting authority which is redundant 
to the FAR.
    We propose to revise subpart 842.12, Novation and Change-of-Name 
Agreements, to add 842.1202, Responsibility for executing agreements, 
which provides detailed policy requirements regarding responsibilities 
for executing agreements related to a successor in interest to, or a 
change of name of a contractor. This is information that is relevant to 
the public at large as to how such modifications will be processed. We 
propose to remove 842.1203, Processing agreements, as the VAAR coverage 
provided is redundant to FAR 42.1203. Internal requirements for OGC 
legal counsel review have been moved to the VAAM.
VAAR Part 852--Solicitation Provisions and Contract Clauses
    In subpart 852.2, Text of Provisions and Clauses, we propose to 
revise provision 852.209-70, Organizational Conflicts of Interest, to 
remove an outdated citation and to correct capitalization. The 
remaining language in the provision is unchanged.
    We propose to add clause 852.241-70, Disputes--Utility Contracts, 
to provide that matters involving the interpretation of tariffed retail 
rates, tariff rate schedules, and tariffed terms provided under this 
contract are subject to any determinations by the independent 
regulatory body having jurisdiction.
    We propose to revise clause 852.242-70, Government Construction 
Contract Administration, for use in all construction solicitations and 
contracts expected to exceed the micro-purchase threshold, when 
contract administration is delegated. The text of the clause remains 
the same, but the first sentence ``As prescribed in 842.271, . . .'' is 
revised to ``As prescribed in 842.272, . . .'' to reflect the new 
designation as this rule has added different content at 842.271. The 
clause authorizes the contracting officer to delegate contract 
administration authority to another contracting officer, and to 
designate another VA employee to act as resident engineer at the 
construction site with limited and specific authority.
    We propose to add clause 852.242-71, Administrative Contracting 
Officer, for use in all construction solicitations and contracts 
expected to exceed the micro-purchase threshold, which states that the 
contracting officer reserves the right to designate an Administrative 
Contracting Officer (ACO) for the purpose of performing certain tasks/
duties in the administration of the contract and that the designation 
will be in writing through an ACO Letter of Delegation.

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, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). E.O. 13563 (Improving Regulation and Regulatory Review) 
emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. The 
Office of Information and Regulatory Affairs has determined that this 
rule is not a significant regulatory action under Executive Order 
12866.
    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 an E.O. 13771 regulatory 
action because this proposed rule is not significant under E.O. 12866.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires 
that VA consider the impact of paperwork and other information 
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an 
agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement unless it displays 
a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi). 
This proposed rule contains one provision constituting a collection of 
information at 48 CFR 809.507-1 and 48 CFR 852.209-70 which require 
offerors on solicitations for management support and consulting 
services to advise, as part of the firm's offer, whether or not award 
of the contract to the firm might involve a conflict of interest and, 
if so, to disclose all relevant facts regarding the conflict. The 
information is used by the contracting officer to determine whether or 
not to award a contract to the firm or, if a contract is to be awarded 
despite a potential conflict, whether or not additional contract terms 
and conditions are necessary to mitigate the conflict. No new 
collection of information is associated with this provision as a part 
of this proposed rule. The information collection requirement for 
809.507-1 and 852.209-70 is currently approved by OMB and has been 
assigned OMB control number 2900-0418. This rule amends this 
information collection requirement to revise 809.507-1 to designate 
852.209-70 as a provision instead of a clause. For the requested 
administrative amendments to VAAR 852.209-70, as required by the 
Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA will submit 
this information collection amendment to OMB for its review.

Regulatory Flexibility Act

    The Secretary hereby certifies that 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 rulemaking does not change VA's policy regarding small 
businesses, does not have an economic impact to individual businesses, 
and there are no increased or decreased costs to small business 
entities. On this basis, the proposed rule would not have an economic 
impact on a substantial number of small entities as they are defined in 
the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, pursuant 
to 5 U.S.C. 605(b), the initial and final regulatory flexibility 
analysis requirements of 5 U.S.C. 603 and 604 do not apply.

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

[[Page 21815]]

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

List of Subjects

48 CFR Part 802

    Government procurement.

48 CFR Part 809

    Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 841

    Government procurement, Utilities.

48 CFR Part 842

    Accounting, Government procurement.

48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Pamela 
Powers, Chief of Staff, Performing the Delegable Duties of the Deputy 
Secretary, Department of Veterans Affairs, approved this document on 
April 8, 2020, for publication.

Consuela Benjamin,
Regulation 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 amend 48 
CFR to revise parts 802, 809, 841, 842 and 852 as follows:

PART 802--DEFINITIONS OF WORDS AND TERMS

0
1. The authority citation for part 802 continues to read as follows:

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


802.101   [AMENDED]

0
2. Section 802.101 is amended to remove the definitions for 
``Suspending and Debarring Official (SDO)'' and ``Suspension and 
Debarment Committee (S&D Committee).''

PART 809--CONTRACTOR QUALIFICATIONS

0
3. The authority citation for part 809 is revised to read as follows:

    Authority:  38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c); 41 U.S.C. 
1702; and 48 CFR 1.301-1.304.

Subpart 809.1--Responsible Prospective Contractors 809.104 and 
809.104-2 [Removed]

0
4. Sections 809.104 and 809.104-2 are removed.

Subpart 809.2 [Removed and Reserved]

0
5. Subpart 809.2, consisting of sections 809.201, 809.202, 809.204, 
809.206, 809.206-1, and 809.270 is removed.

Subpart 809.4--Debarment, Suspension, and Ineligibility

0
6. Subpart 809.4 is revised to read as follows:


809.400   Scope of subpart.

    This subpart implements FAR subpart 9.4 and prescribes VA's 
procedures and related actions for the suspension and debarment of 
contractors.


809.402   Policy.

    (b) Statutory debarments pursuant to the authority of 38 U.S.C. 
8127(g), Enforcement Penalties for Misrepresentation, are mandatory 
when the determination is made that a business concern has willfully 
and intentionally misrepresented its status as a service-disabled, 
Veteran-owned small business or Veteran-owned small business.


809.403   Definitions.

    Suspension & Debarment (S&D) Committee means a committee authorized 
by the SDO to assist the SDO with suspension and debarment related 
matters.
    Suspending and Debarring Official (SDO) means the individual 
responsible for final decisions regarding suspension and debarment, as 
appointed by the agency.


809.405   Effect of listing.

    The authority under FAR 9.405(a), 9.405(d)(2), and 9.405(d)(3) to 
determine whether to solicit from, evaluate bids or proposals from, or 
award contracts to contractors with active exclusions in the System for 
Award Management (SAM) is delegated to the Suspending and Debarring 
Official (SDO). This authority is further delegated to the HCAs, who 
may delegate this authority, in writing, to a designee.


809.405-1   Continuation of current contracts.

    (a) Notwithstanding the suspension, proposed debarment, or 
debarment of a contractor, VA may continue contracts or subcontracts in 
existence at the time the contractor was suspended, proposed for 
debarment, or debarred, unless the cognizant head of the contracting 
activity (HCA) directs otherwise. Examples of factors to be considered 
include, but are not limited to, potential costs associated with a 
termination, possible disruption to VA program objectives, and 
integrity of VA acquisition programs.
    (b) Authority to make the determinations under FAR 9.405-1(b) is 
delegated to the SDO and is further delegated to the HCA, who may 
delegate this authority, in writing, to a designee. The HCA or their 
designee must make a written determination of the compelling reasons in 
accordance with FAR 9.405-1(b). Compelling reasons for the purposes of 
FAR 9.405-1(b) include, but are not limited to, urgency of the need for 
new or continued work, lengthy time period to acquire the new work from 
other sources and meeting estimated quantity for requirements 
contracts.


809.405-2   Restrictions on subcontracting.

    Authority to make the written determination required under FAR 
9.405-2 consenting to a contractor's use of a subcontractor who is 
suspended, proposed for debarment, or debarred is delegated to the SDO. 
This authority is further delegated to the HCA, who may delegate this 
authority, in writing, to a designee.


809.406   Debarment.


809.406-1   General.

    (a) For the purposes of FAR 9.406-1, the SDO's authority includes 
debarments pursuant to the Federal Management Regulation at 41 CFR 102-
117.295. In addition to the factors listed in FAR 9.406-1, the SDO may 
consider the following examples before arriving at a debarment 
decision:
    (1) Whether the contractor had a mechanism, such as a hotline, by 
which employees could have reported suspected instances of improper 
conduct, and instructions in place that encouraged employees to make 
such reports; or
    (2) Whether the contractor conducted periodic reviews of company 
business practices, procedures, policies, and internal controls for 
compliance with standards of conduct and the special requirements of 
Government contracting.

[[Page 21816]]

    (c) As provided in FAR 9.406-1(c), authority to determine whether 
to continue business dealings between VA and a contractor suspended, 
proposed for debarment, or debarred is delegated to the SDO.


809.406-2   Causes for debarment.


809.406-270   Additional causes for debarment.

    (a) Discretionary causes. (1) In addition to the causes listed in 
FAR 9.406-2 (a) through (c), the SDO may debar contractors, based upon 
a preponderance of the evidence (as defined at FAR 2.101), for the 
Government's protection, for--
    (i) Any deliberate violation of the limitation on subcontracting 
clause requirements for acquisitions under subpart 819.70; or
    (ii) Failure to observe the material provisions of a voluntary 
exclusion or an administrative agreement.
    (2) The period of debarment shall be commensurate with the 
seriousness of the action.
    (b) Statutory cause. (1) Pursuant to 38 U.S.C. 8127(g), Enforcement 
Penalties for Misrepresentation, the SDO shall debar, from contracting 
with VA, for a period of not less than five years, any business concern 
that has willfully and intentionally misrepresented the status of that 
concern as a small business concern owned and controlled by Veterans or 
as a small business concern owned and controlled by service-disabled 
Veterans.
    (2) Debarment of a business concern pursuant to 38 U.S.C. 8127(g) 
shall include the debarment of all principals in the business concern. 
Debarment shall be for a period of not less than five years.
    (3) ``Willful and intentional'' misrepresentations, for the purpose 
of debarment actions taken pursuant to 38 U.S.C. 8127(g), are defined 
as deliberate misrepresentations concerning the status of the concern 
as a small business concern owned and controlled by Veterans or as a 
small business concern owned and controlled by service-disabled 
Veterans as supported by the preponderance of evidence. Examples of a 
preponderance of evidence for deliberate misrepresentation of SDVOSB 
and/or VOSB status include but are not limited to: Criminal 
convictions, plea agreements, deferred prosecution agreements, Board of 
Contract Appeals decisions, and admissions of guilt.


809.406-3   Procedures.

    (a) Any individual may submit a referral to debar an individual or 
contractor to the SDO or to the S&D Committee. The referral for 
debarment shall be supported with evidence of a cause for debarment 
listed in FAR 9.406-2, or 809.406-2. The SDO shall forward referrals 
for debarment to the S&D Committee. If the referring individual is a VA 
employee and the referral for debarment is based on possible criminal 
or fraudulent activities, the VA employee shall also refer the matter 
to the VA Office of Inspector General.
    (b) When the S&D Committee finds preponderance of the evidence for 
a cause for debarment, as listed in FAR 9.406-2 or 809.406-2, it shall 
prepare a recommendation and draft notice of proposed debarment for the 
SDO's consideration.
    (c) VA shall send the notice of proposed debarment to the last 
known address of the individual or contractor, the individual or 
contractor's counsel, or agent for service of process, by certified 
mail, return receipt requested, or any other means that allows for 
confirmation of delivery. In the case of a contractor, VA may send the 
notice of proposed debarment to any partner, principal, officer, 
director, owner or co-owner, or joint venture. The S&D Committee 
concurrently shall list the appropriate parties as excluded in the SAM 
in accordance with FAR 9.404.
    (d) If VA does not receive a reply from the contractor within 30 
days after sending the notice of proposed debarment, the S&D Committee 
shall prepare a recommendation and refer the case to the SDO for a 
decision on whether or not to debar based on the information available.
    (e) If VA receives a reply from the contractor within 30 days after 
sending the notice of proposed debarment, the S&D Committee shall 
consider the information in the reply before the S&D Committee makes 
its recommendation to the SDO.
    (f) The S&D Committee, upon the request of the contractor proposed 
for debarment, shall, as soon as practicable, allow the contractor an 
opportunity to appear before the S&D Committee to present information 
or argument personally or through a representative. The contractor may 
supplement the oral presentation with written information and argument. 
VA shall conduct the proceeding in an informal manner and without 
requirement for a transcript.
    (g) If the S&D Committee finds the contractor's or individual's 
submission in opposition to the proposed debarment raises a genuine 
dispute over facts material to the proposed debarment and the debarment 
action is not based on a conviction or civil judgment, the S&D 
Committee shall submit to the SDO the information establishing the 
dispute of material facts. If the SDO agrees there is a genuine dispute 
of material facts, the SDO shall refer the dispute to a designee for a 
resolution pursuant to 809.470, Fact-finding procedures. The S&D 
Committee shall provide the contractor or individual the disputed 
material fact(s). Decisions and determinations of VA's Center for 
Verification and Evaluation (CVE) or Office of Small and Disadvantaged 
Business Utilization (OSDBU), such as status protest decisions, and 
size determinations of the SBA shall not be subject to dispute or fact-
finding in proposed debarment actions. The S&D Committee and SDO shall 
accept these decisions and determinations as resolved facts.
    (h) If the proposed debarment action is based on a conviction or 
civil judgment, or if there are no disputes over material facts, or if 
any disputes over material facts have been resolved pursuant to 
809.470, Fact-finding procedures, the SDO shall make a decision on the 
basis of all information available including any written findings of 
fact submitted by the designated fact finder, and oral or written 
agreements presented or submitted to the S&D Committee by the 
contractor.
    (i) In actions processed under FAR 9.406 where no suspension is in 
place and where fact finding is not required, the VA shall make the 
final decision on the proposed debarment within 30 working days after 
receipt of any information and argument submitted by the contractor, 
unless the SDO extends this period for a good cause.
    (j) In actions processed under 809.406-270(b), the SDO notifies the 
individuals and/or contractors of the determination of willful and 
intentional misrepresentation in the notice of proposed debarment. VA 
shall issue the final decision, removing or upholding the 
determination, within 90 days after SDO's determination of willful and 
intentional misrepresentation.


809.406-4   Period of debarment.

    (a) The SDO will base the period of debarment on the circumstances 
surrounding the cause(s) for debarment.
    (b) The SDO may remove a debarment imposed under FAR 9.406, amend 
its scope, or reduce the period of debarment based on a S&D Committee 
recommendation if--
    (1) VA has debarred the contractor; and
    (2) The debarring official concurs with documentary evidence 
submitted by or on behalf of the contractor setting forth the 
appropriate grounds for granting relief. Appropriate grounds include 
newly discovered material

[[Page 21817]]

evidence, reversal of a conviction, bona fide change of ownership or 
management, elimination of the cause for which debarment was imposed, 
or any other appropriate grounds.
    (c) The period of debarment for willful and intentional 
misrepresentations of SDVOSB or VOSB status pursuant to 809.406-270(b) 
shall not be less than 5 years.


809.407   Suspension.


809.407-1   General.

    (a) As provided in FAR 9.407-1(d), authority to determine whether 
to continue business dealings between VA and a suspended contractor is 
delegated to the HCAs. Compelling reasons include, but are not limited 
to, urgency of the need for new or continued work, lengthy time period 
to acquire the new work from other sources, and meeting estimated 
quantities for requirements contracts.
    (b) For the purposes of FAR 9.407-1, the SDO is the suspending 
official under the Federal Management Regulation at 41 CFR 102-117.295.


809.407-3   Procedures.

    (a) Any individual may submit a referral to suspend an individual 
or contractor to the SDO or to the S&D Committee. Referrals shall 
include supporting evidence of a cause for suspension listed in FAR 
9.407-2. The SDO shall forward the referral to the S&D Committee. If 
the referring individual is a VA employee and the referral for 
suspension is based on possible criminal or fraudulent activities, the 
VA employee shall also refer the matter to the VA Office of Inspector 
General.
    (b) When the S&D Committee finds adequate evidence of a cause for 
suspension, as listed in FAR 9.407-2, it shall prepare a recommendation 
and draft notice of suspension for the SDO's consideration.
    (c) VA shall send the notice of suspension to the last known 
address of the individual or contractor, the individual or contractor's 
counsel, or agent for service of process, by certified mail, return 
receipt requested, or any other means that allows for confirmation of 
delivery. In the case of a contractor, VA may send the notice of 
suspension to any partner, principal, officer, director, owner or co-
owner, or joint venture. The S&D Committee concurrently shall list the 
appropriate parties as excluded in SAM in accordance with FAR 9.404.
    (d) If VA receives a reply from the contractor within 30 days after 
receipt of the notice of suspension, the S&D Committee shall consider 
the information in the reply before the Committee makes further 
recommendations to the SDO. The S&D Committee, upon the request of a 
suspended contractor, shall, as soon as practicable, allow the 
contractor an opportunity to appear before the S&D Committee to present 
information or argument personally or through a representative. The 
contractor may supplement the oral presentation with written 
information and argument. The proceeding will be conducted in an 
informal manner and without requirement for a transcript.
    (e) For the purposes of FAR 9.407-3(b)(2), Decision making process, 
in actions not based on an indictment, if the S&D Committee finds that 
the contractor's submission in opposition to the suspension raises a 
genuine dispute over facts material to the suspension, the S&D 
Committee shall submit to the SDO the information establishing the 
dispute of material facts. However, the S&D Committee may first 
coordinate any further proceeding regarding the material facts in 
dispute with the Department of Justice or with a State prosecuting 
authority in a case involving a State jurisdiction. VA shall take no 
further action to determine disputed material facts pursuant to this 
section or 809.470 if the Department of Justice or a State prosecuting 
authority advises VA in writing that additional proceedings to make 
such a determination would prejudice Federal or State legal 
proceedings.
    (f) If the SDO agrees that there is a genuine dispute of material 
facts, the SDO shall refer the dispute to the designee for resolution 
pursuant to 809.470.


809.470   Fact-finding procedures.

    The provisions of this section constitute the procedures to be used 
to resolve genuine disputes of material fact pursuant to 809.406-3 and 
809.407-3 of this subpart. The SDO shall appoint a designee to conduct 
the fact-finding. OGC shall represent VA at any fact-finding hearing 
and may present witnesses for VA and question any witnesses presented 
by the contractor. The proceedings before the fact-finder will be 
limited to a finding of the facts in dispute, as determined by the SDO. 
The fact-finder shall establish the date for the fact-finding hearing, 
normally to be held within 30 days after the S&D Committee notifies the 
contractor or individual that the SDO has established a genuine dispute 
of material fact(s) exists.
    (a) The Government's representative and the contractor will have an 
opportunity to present evidence relevant to the material fact(s) 
identified by the SDO. The contractor or individual may appear in 
person or through a representative at the fact-finding hearing. The 
contractor or individual may submit documentary evidence, present 
witnesses, and confront any person the agency presents.
    (b) Witnesses may testify in person. Witnesses will be reminded of 
the official nature of the proceedings and that any false testimony 
given is subject to criminal prosecution. Witnesses are subject to 
cross-examination. Hearsay evidence may be presented and will be given 
appropriate weight by the fact-finder.
    (c) The proceedings shall be transcribed and a copy of the 
transcript shall be made available at cost to the contractor upon 
request, unless the contractor and the fact-finder, by mutual 
agreement, waive the requirement for a transcript.
    (d) The fact-finder shall determine the disputed fact(s) by a 
preponderance of the evidence for proposed debarments, and by adequate 
evidence for suspensions. Written findings of fact shall be prepared by 
the fact-finder. A copy of the findings of fact shall be provided to 
the SDO, the Government's representative, and the contractor or 
individual. The SDO will consider the written findings of fact in the 
decision regarding the suspension or proposed debarment.

Subpart 809.5--Organizational and Consultant Conflicts of Interest


809.503   [Removed]

0
7. Section 809.503 is removed.


809.504   [Removed]

0
8. Section 809.504 is removed.
0
9. Section 809.507-1 is revised to read as follows:


809.507-1   Solicitation provisions.

    (a) While conflicts of interest may not presently exist, award of 
certain types of contracts may create potential future organizational 
conflicts of interest (see FAR 9.508 for examples). If a solicitation 
may create a potential future organizational conflict of interest, the 
contracting officer shall insert a provision in the solicitation 
imposing an appropriate restraint on the contractor's eligibility for 
award of contracts in the future. Under FAR 9.507-1, the restraint must 
be appropriate to the nature of the conflict and may exclude the 
contractor from award of one or more contracts in the future.

[[Page 21818]]

    (b) The provision at 852.209-70, Organizational Conflicts of 
Interest, must be included in any solicitation for the services 
addressed in FAR 9.502.

PART 841--ACQUISITION OF UTILITY SERVICES

0
10. The authority citation for part 841 is revised to read as follows:

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

Subpart 841.1--General


841.100   [Removed]

0
11. Section 841.100 is removed.
0
12. Section 841.102 is added to read as follows:


841.102   Applicability.

    (a) This part applies to purchases of utility services from 
nonregulated and regulated utility suppliers when a delegation of 
authority from GSA for those services is requested and obtained.
    (b)(4) The acquisition of energy, such as electricity, and natural 
or manufactured gas, when purchased as a commodity is considered to be 
acquisitions of supplies rather than utility services as described in 
FAR part 41.


841.103   [Removed]

0
13. Section 841.103 is removed.


841.2   [Removed and reserved]

0
14. Subpart 841.2 is removed and reserved.
0
15. Subpart 841.5 is added to read as follows:

Subpart 841.5--Solicitation Provision and Contract Clauses


841.501   Solicitation provision and contract clauses.


841.501-70   Disputes--Utility contracts.

    The contracting officer shall insert the clause at 852.841-70, 
Disputes--Utility Contracts, in solicitations and contracts for utility 
services subject to the jurisdiction and regulation of a utility rate 
commission.

PART 842--CONTRACT ADMINISTRATION AND AUDIT SERVICES

0
16. The authority citation for part 842 continues to read as follows:

    Authority 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.

0
17. Section 842.000 is revised to read as follows:


842.000   Scope of part.

    This part prescribes policies and procedures for contract 
administration and audit services for all Department of Veterans 
Affairs (VA) contracting activities.
0
18. Section 842.070 is revised to read as follows:


842.070   Definitions.

    As used in this part--
    Contract administration means Government actions taken after 
contract award to obtain compliance with such contract requirements as 
timely delivery of supplies or services, acceptance, payment, and 
closing of the contract. These actions include, but are not limited to, 
technical, financial, audit, legal, administrative, and managerial 
services in support of the contracting officer. It may include 
additional tasks requested of designated contract administration 
offices within VA in support of pre-award activities for solicitations 
issued by or awarded by other contracting activities through 
Interagency Acquisitions.
    Administrative Contracting Officer Letter of Delegation means a 
delegation of functions as set forth in FAR 42.202, 42.302 and 842.271, 
Administrative Contracting Officer's role in contract administration 
and delegated functions, that is issued by a contracting officer to 
delegate certain contract administration or specialized support 
services.

Subpart 842. 1--[Removed and reserved]

0
19. Subpart 842.1 is removed and reserved.
0
20. Subpart 842.2 is added to read as follows:

Subpart 842.2--Contract Administration Services


842.270   Contracting Officer's Representatives' role in contract 
administration.

    (a) A contracting officer may designate a qualified person to be 
the Contracting Officer's Representative (COR) for the purpose of 
performing certain technical functions in administering a contract.
    (b) The COR acts solely as a technical representative of the 
contracting officer and is not authorized to perform any function that 
results in a change in the scope, price, terms or conditions of the 
contract.
    (c) A COR designation must be made in writing by the contracting 
officer. The designation shall identify the responsibilities and 
limitations of the COR. A copy of the designation must be furnished to 
the contractor and the Administrative Contracting Officer (ACO), if 
separately assigned.


842.271   Administrative Contracting Officer's role in contract 
administration and delegated functions.

    (a) Contracting officers are authorized to delegate certain 
contract administration or specialized support services in accordance 
with FAR 42.202 and 42.302 to cognizant VA administrative contracting 
officers.
    (b) The Administrative Contracting Officer's authority is limited 
to the actions detailed in the delegation.
    (c) These delegations of authority shall be set forth in a written 
Administrative Contracting Officer (ACO) Letter of Delegation issued by 
the contracting officer to the accepting contract administration office 
and designated administrative contracting officer. The ACO Letter of 
Delegation shall contain the information required in FAR 42.202(a) 
through (c) and identify the responsibilities and limitations of the 
ACO. A copy of the delegation will be furnished to the contractor and 
the ACO.
    (d) The contracting officer shall insert the clause at 852.242-71, 
Administrative Contracting Officer, in solicitations and contracts 
expected to exceed the micro-purchase threshold.


842.272   Contract clause for Government construction contract 
administration.

    The contracting officer shall insert the clause at 852.242-70, 
Government Construction Contract Administration, in solicitations and 
contracts for construction expected to exceed the micro-purchase 
threshold, when contract administration is delegated.
0
21. Section 842.705 is revised to read as follows:


842.705  Final indirect cost rates.

    Except when the quick-closeout procedures described in FAR 42.708 
are used, contracting officers shall request contract audits on 
proposed final indirect cost rates and billing rates for use in cost 
reimbursement and fixed-price incentive contracts as prescribed in FAR 
subpart 42.7.

Subpart 842.8--[Removed and reserved]

0
22. Subpart 842.8 is removed and reserved.

Subpart 842.12--Novation and Change-of-Name Agreements

0
23. Section 842.1202 is added to read as follows:


842.1202  Responsibility for executing agreements.

    To avoid duplication of effort on the part of VA contracting 
offices in preparing and executing agreements to

[[Page 21819]]

recognize a change of name or successor in interest involving multiple 
contracts issued by VA activities, only one agreement will be prepared 
and executed between the Government and the parties (transferor and 
transferee) and will be processed as forth in FAR 42.1203. The Office 
of Acquisition and Logistics, Risk Management and Compliance Service 
will, in each case, designate a cognizant HCA responsible for assigning 
a contracting officer. The designated contracting officer shall be 
responsible for taking all necessary and appropriate actions with 
respect to either recognizing or not recognizing a successor in 
interest or recognizing a change of name agreement and processing and 
executing the agreements as set forth in VA procedures.


842.1203  [Removed]

0
24. Section 842.1203 is removed.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

Subpart 852.2--Texts of Provisions and Clauses

0
25. Section 852.209-70 is revised to read as follows:


852.209-70   Organizational Conflicts of Interest.

    As prescribed in 809.507-1(b), insert the following provision:

Organizational Conflicts of Interest (Date)

    (a) It is in the best interest of the Government to avoid 
situations which might create an organizational conflict of interest 
or where the Offeror's performance of work under the contract may 
provide the Contractor with an unfair competitive advantage. The 
term ``organizational conflict of interest'' means that because of 
other activities or relationships with other persons, a person is 
unable to render impartial assistance or advice to the Government, 
or the person's objectivity in performing the contract work is or 
might be otherwise impaired, or the person has an unfair competitive 
advantage.
    (b) The Offeror shall provide a statement with its offer which 
describes, in a concise manner, all relevant facts concerning any 
past, present, or currently planned interest (financial, 
contractual, organizational, or otherwise) or actual or potential 
organizational conflicts of interest relating to the services to be 
provided under this solicitation. The Offeror shall also provide 
statements with its offer containing the same information for any 
consultants and subcontractors identified in its proposal and which 
will provide services under the solicitation. The Offeror may also 
provide relevant facts that show how its organizational and/or 
management system or other actions would avoid or mitigate any 
actual or potential organizational conflicts of interest.
    (c) Based on this information and any other information 
solicited or obtained by the Contracting Officer, the Contracting 
Officer may determine that an organizational conflict of interest 
exists which would warrant disqualifying the Contractor for award of 
the contract unless the organizational conflict of interest can be 
mitigated to the Contracting Officer's satisfaction by negotiating 
terms and conditions of the contract to that effect. If the conflict 
of interest cannot be mitigated and if the Contracting Officer finds 
that it is in the best interest of the United States to award the 
contract, the Contracting Officer shall request a waiver in 
accordance with FAR 9.503.
    (d) Nondisclosure or misrepresentation of actual or potential 
organizational conflicts of interest at the time of the offer or 
arising as a result of a modification to the contract, may result in 
the termination of the contract at no expense to the Government.

(End of provision)

0
26. Section 852.241-70 is added to read as follows:


852.241-70   Disputes--Utility Contracts.

    As prescribed in 841.501-70, insert the following clause:

Disputes--Utility Contracts (Date)

    (a) Definition. As used in this clause, Independent regulatory 
body means the Federal Energy Regulatory Commission, a state-wide 
agency, or an agency with less than state-wide jurisdiction when 
operating pursuant to state authority. The body has the power to 
fix, establish, or control the rates and services of utility 
suppliers.
    (b) Independent Regulatory Body determinations. The requirements 
of the Disputes clause at FAR 52.233-1 are supplemented to provide 
that matters involving the interpretation of tariffed retail rates, 
tariff rate schedules, and tariffed terms provided under this 
contract are subject to any determinations by the independent 
regulatory body having jurisdiction.

(End of clause)

0
27. Section 852.242-70 is revised to read as follows:


852.242-70   Government Construction Contract Administration.

    As prescribed in 842.272, insert the following clause. This is a 
fill-in clause.

Government Construction Contract Administration (Date)

    (a) Contract administration functions set forth in FAR 42.302 
are hereby delegated to: [Insert name and office address of 
Contracting Officer]
    [Note: If any of the functions set forth in FAR 42.302 are to be 
retained by the Contracting Officer, identify those as well with the 
notation: ``With the exception of the following contract 
administration functions: ____.''Delete this notation if not 
required.]
    (b) The following functions will be retained by the Contracting 
Officer or Administrative Contracting Officer (ACO) and are not 
redelegable to Resident Engineers:
    (1) Award of contract modifications either through supplemental 
agreements or change orders that exceed the ACO's appointed warrant 
limitations.
    (2) Issuance of default letters.
    (3) Issuance of Cure or Show-Cause Notices.
    (4) Suspension of work letters and/or modifications.
    (5) Issuance of Contracting Officer final determination letters.
    (6) Issuance of termination notices.
    (7) Authorization of final payment.
    (c) The work will be under the direction of a Department of 
Veterans Affairs Contracting Officer, who may designate another VA 
employee to act as resident engineer at the construction site who 
possesses limited warranted authority.
    (d) Except as provided below, the resident engineer's directions 
will not conflict with or change contract requirements. Within the 
limits of any specific authority delegated by the Contracting 
Officer, the resident engineer may, by written direction, make 
changes in the work. The Contractor shall be advised of the extent 
of such authority prior to execution of any work under the contract.
    (e) The Contracting Officer or an Administrative Contracting 
Officer identified in paragraph (a) may further delegate limited 
authority and specialized support services responsibilities below to 
the following warranted Resident Engineer personnel on site, not to 
exceed the dollar value and threshold of their warrant: [Insert name 
and office address of Resident Engineer with limited authority]
    (1) Conduct post-award orientation conferences.
    (2) Issue administrative changes (see FAR 43.101) correcting 
errors or omissions, contractor address, facility or activity code, 
remittance address, computations which do not required additional 
contract funds, and other such changes.
    (3) For actions not to exceed $ [Insert dollar amount] negotiate 
and execute supplemental agreements resulting from change orders 
issued under the Changes clause.
    (4) Negotiate and execute supplemental agreements changing 
contract delivery schedules where the time extension does not exceed 
[Insert number] calendar days.

(End of clause)

0
28. Section 852.242-71 is added to read as follows:


852.242-71   Administrative Contracting Officer.

    As prescribed in 842.271, insert the following clause:

Administrative Contracting Officer (Date)

    The Contracting Officer reserves the right to designate an 
Administrative Contracting Officer (ACO) for the purpose of 
performing certain tasks/duties in the administration of

[[Page 21820]]

the contract. Such designation will be in writing through an ACO 
Letter of Delegation and will identify the responsibilities and 
limitations of the ACO. A copy of the ACO Letter of Delegation will 
be furnished to the Contractor.

(End of clause)

[FR Doc. 2020-07799 Filed 4-17-20; 8:45 am]
BILLING CODE 8320-01-P