VA Acquisition Regulation: Contractor Qualifications; Acquisition of Utility Services; and Contract Administration and Audit Services, 60073-60079 [2020-18172]
Download as PDF
<![CDATA[
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations
DEPARTMENT OF VETERANS
AFFAIRS
changes, the proposed rule published in
the Federal Register on April 20, 2020.
48 CFR Parts 802, 809, 841, 842, and
852
Executive Orders 12866, 13563 and
13771
RIN 2900–AQ38
VA Acquisition Regulation: Contractor
Qualifications; Acquisition of Utility
Services; and Contract Administration
and Audit Services
Department of Veterans Affairs.
Final rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) is amending and updating
its VA Acquisition Regulation (VAAR)
in phased increments to revise or
remove any policy superseded by
changes in the Federal Acquisition
Regulation (FAR), to remove procedural
guidance internal to VA into the VA
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with the FAR and remove outdated and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, VA
will publish them in the Federal
Register. In particular, this rulemaking
revises VAAR concerning Contractor
Qualifications, Acquisition of Utility
Services, and Contract Administration
and Audit Services, and affected parts
Definitions of Words and Terms and
Solicitation Provisions and Contract
Clauses.
SUMMARY:
This rule is effective on October
26, 2020.
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:
DATES:
Background
On April 20, 2020, VA published a
proposed rule in the Federal Register
(85 FR 21811) which announced VA’s
intent to amend regulations for VAAR
Case RIN 2900–AQ38 (Parts 809, 841
and 842). VA provided a 60-day
comment period for the public to
respond to the proposed rule and
submit comments. The comment period
for the proposed rule ended on June 19,
2020 and VA received no comments.
This rule adopts as a final rule, without
VerDate Sep<11>2014
16:01 Sep 23, 2020
Jkt 250001
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, distributive impacts; and
equity). E.O. 13563 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 https://
www.regulations.gov, usually within 48
hours after the rulemaking document is
published. Additionally, a copy of the
rulemaking and its Regulatory Impact
Analysis (RIA) are available on VA’s
website at https://www.va.gov/orpm/, by
following the link for ‘‘VA Regulations
Published from FY 2004 Through Fiscal
Year to Date.’’
This rule is not an E.O. 13771
regulatory action because this 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 final 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.
PO 00000
Frm 00027
Fmt 4700
Sfmt 4700
60073
No new collection of information is
associated with this provision as a part
of this final 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 final rule will not have a significant
economic impact on a substantial
number of small entities as they are
defined in the Regulatory Flexibility Act
(5 U.S.C. 601–612). This rulemaking
does not change VA’s policy regarding
small businesses, does not have an
economic impact to individual
businesses, and there are no increased
or decreased costs to small business
entities. On this basis, the final rule
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 as they 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
issuing any rule that may result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
(adjusted annually for inflation) in any
one year. This final rule will have no
such effect on State, local, and tribal
governments or on the private sector.
Congressional Review Act
Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), the Office of
Information and Regulatory Affairs
designated this rule as not a major rule,
as defined by 5 U.S.C. 804(2).
List of Subjects
48 CFR Part 802
Government procurement.
48 CFR Part 809
Government procurement, Reporting
and recordkeeping requirements.
E:\FR\FM\24SER1.SGM
24SER1
60074
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations
809.206, 809.206–1, and 809.270, is
removed and reserved.
48 CFR Part 841
Government procurement, Utilities.
6. Subpart 809.4 is revised to read as
follows:
■
48 CFR Part 842
Accounting, Government
procurement.
Subpart 809.4—Debarment, Suspension,
and Ineligibility
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.
Brooks D. Tucker, Acting Chief of Staff,
Department of Veterans Affairs,
approved this document on August 14,
2020, for publication.
Consuela Benjamin,
Regulations Development Coordinator, Office
of Regulation Policy & Management, Office
of the Secretary, Department of Veterans
Affairs.
For the reasons set out in the
preamble, VA amends 48 CFR, parts
802, 809, 841, 842 and 852 as follows:
809.400
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.
[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).’’
■
PART 809—CONTRACTOR
QUALIFICATIONS
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.
809.104 and 809.104–2
[Removed]
4. Sections 809.104 and 809.104–2 are
removed.
■
Subpart 809.2 [Removed and
Reserved]
5. Subpart 809.2, consisting of
sections 809.201, 809.202, 809.204,
■
VerDate Sep<11>2014
16:01 Sep 23, 2020
Jkt 250001
Policy.
(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.
(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 (SDVOSB) or veteranowned small business (VOSB).
809.405–2
809.403
809.406
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
Subpart 809.1—Responsible
Prospective Contractors
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
PART 802—DEFINITIONS OF WORDS
AND TERMS
802.101
Sec.
809.400 Scope of subpart.
809.402 Policy.
809.403 Definitions.
809.405 Effect of listing.
809.405–1 Continuation of current
contracts.
809.405–2 Restrictions on subcontracting.
809.406 Debarment.
809.406–1 General.
809.406–2 Causes for debarment.
809.406–270 Additional causes for
debarment.
809.406–3 Procedures.
809.406–4 Period of debarment.
809.407 Suspension.
809.407–1 General.
809.470 Fact-finding procedures.
809.405–1 Continuation of current
contracts.
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 00028
Fmt 4700
Sfmt 4700
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.
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\24SER1.SGM
24SER1
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations
(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
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
16:01 Sep 23, 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 00029
Fmt 4700
Sfmt 4700
60075
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\24SER1.SGM
24SER1
60076
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations
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
VerDate Sep<11>2014
16:01 Sep 23, 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 00030
Fmt 4700
Sfmt 4700
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\24SER1.SGM
24SER1
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations
(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.
Subpart 841.2 [Removed and reserved]
14. Subpart 841.2, consisting of
sections 841.100 and 841.103, is
removed and reserved.
■ 15. Subpart 841.5 is added 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.
■ 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]
■
19. Subpart 842.1, consisting of
sections 842.101 and 842.102, is
removed and reserved.
■ 20. Subpart 842.2 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
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.
17. Section 842.000 is revised to read
as follows:
■
VerDate Sep<11>2014
16:01 Sep 23, 2020
Jkt 250001
Subpart 842.2—Contract Administration
Services
Sec.
842.270 Contracting Officer’s
Representatives’ role in contract
administration.
842.271 Administrative Contracting
Officer’s role in contract administration
and delegated functions.
842.272 Contract clause for Government
construction contract administration.
Fmt 4700
Sfmt 4700
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:
(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
Frm 00031
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.
■
842.270 Contracting Officer’s
Representatives’ role in contract
administration.
PO 00000
60077
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 fixedprice incentive contracts as prescribed
in FAR subpart 42.7.
E:\FR\FM\24SER1.SGM
24SER1
60078
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations
Subpart 842.8 [Removed and reserved]
22. Subpart 842.8, consisting of
sections 842.801, 842.801–70, and
842.803, 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
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.
PART 852—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
25. The authority citation for part 852
continues to read as follows:
■
Authority: 38 U.S.C. 8127–8128, and 8151–
8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3),
41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR
1.301 through 1.304.
Subpart 852.2—Texts of Provisions
and Clauses
26. Section 852.209–70 is revised to
read as follows:
■
852.209–70
Interest.
Organizational Conflicts of
(End of Provision)
As prescribed in 809.507–1(b), insert
the following provision:
Organizational Conflicts of Interest
(OCT 2020)
(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
VerDate Sep<11>2014
16:01 Sep 23, 2020
Jkt 250001
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.
27. 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 (SEP 2020)
(a) Definition. As used in this clause,
Independent regulatory body means the
PO 00000
Frm 00032
Fmt 4700
Sfmt 4700
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)
28. 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 (OCT 2020)
(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: lll.’’
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
E:\FR\FM\24SER1.SGM
24SER1
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations
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)
29. 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
(OCT 2020)
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. 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. 2020–18172 Filed 9–23–20; 8:45 am]
BILLING CODE 8320–01–P
VerDate Sep<11>2014
16:01 Sep 23, 2020
Jkt 250001
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
60079
Tara
Scott, Industry Economist, (301) 427–
8579.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
50 CFR Chapters II, III, and VI
Background
[RTID 0648–XA387]
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601 et seq., requires that
Federal agencies, including NMFS, take
into account how their regulations affect
‘‘small entities,’’ including small
businesses, small Governmental
jurisdictions, and small organizations.
Under the RFA, we must either prepare
a Regulatory Flexibility Analysis or
certify that the regulation, if put in
place, will not have a significant
economic impact on a substantial
number of small entities. This
requirement has been in place for any
regulation proposed after January 1,
1981. Section 602 of the RFA requires
that NMFS issue an Agenda of
Regulations identifying rules under
development that are likely to have a
significant economic impact on a
substantial number of small entities.
Section 610 of the RFA requires
Federal agencies to review existing
regulations. It requires that NMFS
publish a plan in the Federal Register
explaining how it will review its
existing regulations, which have or will
have a significant economic impact on
a substantial number of small entities.
Regulations that became effective after
January 1, 1981, must be reviewed
within 10 years of the publication date
of the final rule. Section 610(c) requires
that we annually publish a list of final
rules we will review during the
succeeding 12 months in the Federal
Register. The list must describe, explain
the need for, and provide the legal basis
for the rules being reviewed, as well as
invite public comment on the rules
contained in the list.
Plan for Periodic Review of
Regulations
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Request for comments.
AGENCY:
NMFS announces the
availability of a list of the rules it is
reviewing, as required, under section
610 of the Regulatory Flexibility Act.
We are required to notify the public of
our review of existing regulations that
we have determined had, or will have,
a significant impact on a substantial
number of small entities, such as small
businesses, small organizations, and
small governmental jurisdictions. The
intended effect of this notice is to
inform the public of the rules under
review, to outline NMFS’ review
process, and to provide an opportunity
to comment.
DATES: Written comments must be
received by October 26, 2020.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2020–0128, by the following
method:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
https://www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-20200128, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
Instructions: Comments must be
submitted by the above method to
ensure that the comments are received,
documented, and considered by NMFS.
Comments sent by any other method, to
any other address or individual, or
received after the end of the comment
period, may not be considered. All
comments received are a part of the
public record and will generally be
posted for public viewing on
www.regulations.gov without change.
All personal identifying information
(e.g., name, address, etc.) submitted
voluntarily by the sender will be
publicly accessible. Do not submit
confidential business information, or
otherwise sensitive or protected
information. NMFS will accept
anonymous comments (enter ‘‘N/A’’ in
the required fields if you wish to remain
anonymous).
SUMMARY:
PO 00000
Frm 00033
Fmt 4700
Sfmt 4700
Criteria for Review of Existing
Regulations
The purpose of the required review is
to determine whether existing rules
should be left unchanged, or whether
they should be revised or rescinded to
minimize significant economic impacts
on a substantial number of small
entities, consistent with the objectives
of other applicable statutes. In deciding
whether change is necessary, the RFA
establishes five factors that NMFS must
consider:
(1) Whether the rule is still needed;
(2) What type of complaints or
comments were received concerning the
rule from the public;
(3) The complexity of the rule;
(4) How much the rule overlaps,
duplicates or conflicts with other
E:\FR\FM\24SER1.SGM
24SER1
]]>Agencies
[Federal Register Volume 85, Number 186 (Thursday, September 24, 2020)]
[Rules and Regulations]
[Pages 60073-60079]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18172]
[[Page 60073]]
=======================================================================
-----------------------------------------------------------------------
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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) is amending and
updating its VA Acquisition Regulation (VAAR) in phased increments to
revise or remove any policy superseded by changes in the Federal
Acquisition Regulation (FAR), to remove procedural guidance internal to
VA into the VA Acquisition Manual (VAAM), and to incorporate any new
agency specific regulations or policies. These changes seek to
streamline and align the VAAR with the FAR and remove outdated and
duplicative requirements and reduce burden on contractors. The VAAM
incorporates portions of the removed VAAR as well as other internal
agency acquisition policy. VA will rewrite certain parts of the VAAR
and VAAM, and as VAAR parts are rewritten, VA will publish them in the
Federal Register. In particular, this rulemaking revises VAAR
concerning Contractor Qualifications, Acquisition of Utility Services,
and Contract Administration and Audit Services, and affected parts
Definitions of Words and Terms and Solicitation Provisions and Contract
Clauses.
DATES: This rule is effective on October 26, 2020.
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
On April 20, 2020, VA published a proposed rule in the Federal
Register (85 FR 21811) which announced VA's intent to amend regulations
for VAAR Case RIN 2900-AQ38 (Parts 809, 841 and 842). VA provided a 60-
day comment period for the public to respond to the proposed rule and
submit comments. The comment period for the proposed rule ended on June
19, 2020 and VA received no comments. This rule adopts as a final rule,
without changes, the proposed rule published in the Federal Register on
April 20, 2020.
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, distributive impacts; and equity). E.O.
13563 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
https://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its Regulatory Impact Analysis (RIA) are available on
VA's website at https://www.va.gov/orpm/, by following the link for ``VA
Regulations Published from FY 2004 Through Fiscal Year to Date.''
This rule is not an E.O. 13771 regulatory action because this 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 final 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 final 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 final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). This rulemaking does not change VA's policy regarding small
businesses, does not have an economic impact to individual businesses,
and there are no increased or decreased costs to small business
entities. On this basis, the final rule 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 as they 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 issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule will have no such effect on
State, local, and tribal governments or on the private sector.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
List of Subjects
48 CFR Part 802
Government procurement.
48 CFR Part 809
Government procurement, Reporting and recordkeeping requirements.
[[Page 60074]]
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. Brooks D.
Tucker, Acting Chief of Staff, Department of Veterans Affairs, approved
this document on August 14, 2020, for publication.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons set out in the preamble, VA amends 48 CFR, parts
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 and reserved.
0
6. Subpart 809.4 is revised to read as follows:
Subpart 809.4--Debarment, Suspension, and Ineligibility
Sec.
809.400 Scope of subpart.
809.402 Policy.
809.403 Definitions.
809.405 Effect of listing.
809.405-1 Continuation of current contracts.
809.405-2 Restrictions on subcontracting.
809.406 Debarment.
809.406-1 General.
809.406-2 Causes for debarment.
809.406-270 Additional causes for debarment.
809.406-3 Procedures.
809.406-4 Period of debarment.
809.407 Suspension.
809.407-1 General.
809.470 Fact-finding procedures.
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 (SDVOSB) or veteran-owned small business
(VOSB).
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 60075]]
(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 60076]]
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 60077]]
(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.
Subpart 841.2 [Removed and reserved]
0
14. Subpart 841.2, consisting of sections 841.100 and 841.103, 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, consisting of sections 842.101 and 842.102, is
removed and reserved.
0
20. Subpart 842.2 is added to read as follows:
Subpart 842.2--Contract Administration Services
Sec.
842.270 Contracting Officer's Representatives' role in contract
administration.
842.271 Administrative Contracting Officer's role in contract
administration and delegated functions.
842.272 Contract clause for Government construction contract
administration.
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.
[[Page 60078]]
Subpart 842.8 [Removed and reserved]
0
22. Subpart 842.8, consisting of sections 842.801, 842.801-70, and
842.803, 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 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
0
25. The authority citation for part 852 continues to read as follows:
Authority: 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c);
41 U.S.C. 1121(c)(3), 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR
1.301 through 1.304.
Subpart 852.2--Texts of Provisions and Clauses
0
26. 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 (OCT 2020)
(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
27. 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 (SEP 2020)
(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
28. 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 (OCT 2020)
(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
[[Page 60079]]
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
29. 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 (OCT 2020)
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. 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. 2020-18172 Filed 9-23-20; 8:45 am]
BILLING CODE 8320-01-P
