VA Acquisition Regulation: Acquisition Planning; Required Sources of Supplies and Services; Market Research; and Small Business Programs, 62999-63015 [2022-21541]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Rules and Regulations]
[Pages 62999-63015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21541]


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DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 802, 807, 808, 810, 813, 819, 832, 852 and 853

RIN 2900-AR06


VA Acquisition Regulation: Acquisition Planning; Required Sources 
of Supplies and Services; Market Research; and Small Business Programs

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is issuing a final 
rule amending the VA Acquisition Regulation (VAAR). This rulemaking 
revises coverage concerning Acquisition Planning, Required Sources of 
Supplies and Services, Market Research, and Small Business Programs, as 
well as affected parts to include Definitions of Words and Terms, 
Simplified Acquisition Procedures, Contract Financing, Solicitation 
Provisions and Contract Clauses, and Forms.

DATES: Effective November 17, 2022.

FOR FURTHER INFORMATION CONTACT: Mr. Bogdan Vaga, Senior Procurement 
Analyst, Procurement Policy and Warrant Management Services, 003A2A, 
810 Vermont Avenue NW, Washington, DC 20420, (202) 894-0686. (This is 
not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION:

Background

    VA published a proposed rule in the Federal Register at 87 FR 13598 
on March 9, 2022, to amend the VAAR to implement and supplement the 
Federal Acquisition Regulation (FAR). VA provided a 60-day comment 
period for the public to respond to the proposed rule and submit 
comments. The public comment period closed on May 9, 2022. VA received 
no public comments.
    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.
    The VAAR has been revised to add new policy or regulatory 
requirements, to update existing policy, and to remove any redundant 
guidance where it may exist in affected parts, and to place guidance 
that is applicable only to VA's internal operating processes or 
procedures in the VA Acquisition Manual (VAAM).
    This rule adopts as a final rule the proposed rule published in the 
Federal Register on March 9, 2022, except for one technical non-
substantive revision as described below.

Discussion and Analysis

Technical Non-Substantive Change to the Rule

    This rule makes one non-substantive change to the rule to provide 
clarity, eliminate confusion, and to ensure compliance with the Federal 
Acquisition Regulation (FAR). Specifically, in section 819.7002, 
Applicability, VA is revising the term ``commercial acquisitions'' as 
used in the section to reflect ``commercial products or commercial 
services'' in alignment with FAR final rule, Federal Acquisition 
Regulation: Revision of Definition of ``Commercial Item'', RIN 9000-
AN76, effective December 6, 2021.

[[Page 63000]]

Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
the 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.
    The Regulatory Impact Analysis associated with this rulemaking can 
be found as a supporting document at www.regulations.gov.

Paperwork Reduction Act

    This final rule includes provisions constituting a revised 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521) that require approval by the Office of Management and 
Budget (OMB). This rule also contains collections of information under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521) that are already approved by OMB. The collection of information 
for 48 CFR 819.704-70, 852.219-70, and 853.219(b) is currently approved 
by OMB and has been assigned OMB control number 2900-0741.
    Separately, a revised collection of information associated with 
this rulemaking is contained in 48 CFR 852.207-70, Report of Employment 
Under Commercial Activities, under OMB control number 2900-0590. This 
final rule removes one of the existing information collection 
requirements associated with this action at 48 CFR 852.207-70 to 
reflect the discontinuation of 852.207-70, as well as the related 
prescriptions for the clause at 807.304-77 and 873.110, paragraph (f).
    Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of 
this rulemaking action to OMB for review and approval, including all 
comments received on the proposed information collections and any 
changes made in response to comments. There were no public comments 
received on the proposed rule or on the collection of information. OMB 
has reviewed and has not approved the revisions and removal at this 
time. In accordance with 5 CFR part 1320, the revised information 
collection is not approved at this time. OMB has up to 30 days to 
approve the request after the final rule publishes.
    If OMB does not approve the revised collection of information as 
requested, VA will immediately take action to reinstate the information 
collection or take such other action as is directed by OMB.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule is not expected 
to 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).
    The overall impact of the final rule would be of benefit to small 
businesses owned by Veterans or service-disabled Veterans as the VAAR 
is being updated to remove extraneous procedural information that 
applies only to VA's internal operating processes or procedures. VA 
estimates no increased or decreased costs to small business entities. 
This rulemaking clarifies VA's policy regarding the contracting order 
of priority for Service-Disabled Veteran-Owned Small Businesses 
(SDVOSBs) and Veteran-Owned Small Businesses (VOSBs) as a result of the 
U.S. Supreme Court's decision in Kingdomware Technologies, Inc. vs. the 
United States, July 25, 2018, (Kingdomware) only as it pertains to the 
application of the VA Rule of Two in accordance with Public Law 109-461 
as codified at 38 U.S.C. 8127-8128, and via the original final rule--VA 
Acquisition Regulation: Supporting Veteran-Owned and Service-Disabled 
Veteran-Owned Small Businesses--published in the Federal Register at 74 
FR 64619, on December 9, 2009, and effective January 7, 2010.
    This regulation seeks to simplify and streamline VA guidance 
regarding its small business program. The impact on small business 
overall is positive, as VA continues to implement its small business 
policies in accordance with legislative mandates pertaining to the 
Department of Veterans Affairs in 38 U.S.C. 8127-8128 to ensure that 
that small business owned and controlled by Veterans receive a fair 
share of contracting opportunities at the Department. VA's hierarchy of 
contracting preferences, established by law, mandates VA Vendor 
Information Pages (VIP)-listed SDVOSBs first, then VOSBs, prior to 
other small business preferences. While consistent with VA's 
legislation and mission to serve Veterans, this mandate necessarily 
makes achievement of other small business goals more challenging that 
fall in a statutorily based lower contracting order of priority, e.g., 
awards in the general small business category. Through renewed emphasis 
on the program in 2016 post the U.S. Supreme Court decision in 
Kingdomware Technologies, Inc., and through increased training and 
revised implementing policy and procedures issued to VA contracting 
officers, VA has successfully achieved specific SDVOSB, VOSB, and small 
business goals for FY 2020 as discussed below.
    This rulemaking does not change VA's overall 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. 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. However, VA has prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The FRFA is summarized as follows:
    a. Statement of the need for, and the objectives of, the rule. A 
description of the reasons why action by VA is being considered.
    Response: VA is issuing a final rule to implement updated 
requirements to the Department of Veterans Affairs' (VA) policy and 
procedures pertaining to 38 U.S.C. 8127-8128 (Pub. L. 109-461), known 
as the Veterans First Contracting Program, as well as additional 
legislative amendments and statutory changes to 38 U.S.C. 8127 as a 
result of Public Law 116-155, the Department of Veterans Affairs 
Contracting Preference Consistency Act of 2020, which had an effective 
date of August 8, 2020, and Public Law 116-183, Protecting Business 
Opportunities for Veterans Act of 2019, enacted October 30, 2020, which 
were implemented in advance of this rulemaking through separate class 
deviations. This final rule also makes other necessary updates to the 
VAAR to bring current with the Federal Acquisition Regulation (FAR).
    b. Statement of the significant issues raised by the public 
comments in response to the initial regulatory flexibility analysis, a 
statement of the assessment of the agency of such issues, and a 
statement of any changes made to the rule as a result of such comments.
    Response: There were no public comments received on the proposed 
rule and accordingly no changes were made to the rule in response to 
the initial regulatory flexibility analysis.
    c. A description of and, where feasible, an estimate of the number 
of

[[Page 63001]]

small entities to which the rule would apply.
    Response: This rulemaking is not expected to 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.
    To determine the number of potential affected small businesses and 
other entities, VA examined the data in the Federal Procurement Data 
System (FPDS) to estimate the number of small business entities that 
will be affected by this rule. Based on preliminary data from Fiscal 
Year 2021, there were 80,148 SDVOSB coded contract actions, and 143,452 
coded contract actions to VOSBs. In addition to specific SDVOSB/VOSB 
contract actions, in FY 2021 there were a total of 219,301 small 
business contract actions in FPDS. Note: SDVOSBs may also be coded in 
addition to the SDVOSB category as both a small business and VOSB 
award. VA analysis indicates that in FY 2021 VA exceeded its goals for 
SDVOSB, VOSB and small businesses. In FY 2020, VA exceeded--(1) its 
SDVOSB goal of 15% with a 23.9% achievement; (2) its VOSB goal of 17% 
with a 24.4% achievement; and (3) its overall small business goal of 
28.45% with a 30.3% achievement, even during the midst of the declared 
national emergency on COVID-19. Considering VA had to make critical and 
urgent emergency procurements under other authorities, including sole 
source, of Personal Protective Equipment (PPE) and other related 
medical supplies and services in support of continuity of its core 
mission to provide Veterans' healthcare and as part of its overarching 
pandemic response in support of the declared national emergency, the VA 
acquisition workforce worked diligently hand-in-hand with its program/
project offices to continue to comply with the requirements of 38 
U.S.C. 8127-8127 in priority awards to SDVOSBs, then VOSBs. These table 
below provides the referenced data and successful small business 
program goal achievements in these categories.

                            Preliminary Fiscal Year 2021 Small Business Goaling Data
----------------------------------------------------------------------------------------------------------------
                                        Total contract
          Fiscal year 2021               dollars and       Small business         SDVOSB              VOSB
                                           actions
----------------------------------------------------------------------------------------------------------------
Goal................................  .................             28.45%              15.0%              17.0%
Actual Performance..................  .................              30.3%              23.9%              24.4%
Dollars awarded by VA...............    $34,351,110,891    $10,307,742,213     $8,144,793,570     $8,365,441,281
Total Contract Awards...............          1,833,460            219,301             80,148            143,452
----------------------------------------------------------------------------------------------------------------
Source: Federal Procurement Data System. Dataset downloaded on December 9, 2021.

    This rule should help small businesses continue to receive a fair 
share of VA contracting dollars. VA exceeded its small business goal of 
28.45% in Fiscal Year 2021, achieving 30.3%, valued at $10,307,742,213, 
while awards to SDVOSBs were valued at $8,144,793,570.
    d. A description of the projected reporting, recordkeeping, and 
other compliance requirements of the rule, including an estimate of the 
classes of small entities which would be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record.
    Response: This rule does not impose any new reporting, 
recordkeeping or other compliance requirements for small entities.
    e. A description of any significant alternatives to the rule which 
accomplish the stated objectives of applicable statutes and which 
minimize any significant economic impact of the rule on small entities.
    Response: There are no known significant alternative approaches to 
the final rule. VA is unable to identify any significant alternatives 
that would accomplish the requirements of this rule. Through the 
proposed rule, the public had an opportunity to provide public comment 
prior to publication of a final rule. VA considered initially issuing a 
complete revision to the VAAR in one case, but given ongoing litigation 
and legislative initiatives, as well as the complexity of the various 
VAAR parts, the phased incremental approach permitted the public to be 
able to focus on specific topics and parts of interest and allow them 
to timely submit public comments which may have been more onerous if 
the complete VAAR were revised at one time. VA received no comments on 
the proposed rule.
    VA has submitted a copy of the FRFA to the Chief Counsel for 
Advocacy of the Small Business Administration.

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 would 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 Parts 802, 807, 808, 810, 813, 832, and 853

    Government procurement.

48 CFR Part 819

    Administrative practice and procedure, Government procurement, 
Reporting and recordkeeping requirements, Small business, Veterans.

48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on September 23, 2022, 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.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
General Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, VA amends 48 CFR chapter 
8 as follows:

PART 802--DEFINITIONS OF WORDS AND TERMS

0
1. Revise the authority citation for part 802 to read as follows:


[[Page 63002]]


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


0
2. Amend section 802.101 by:
0
a. Adding definitions in alphabetical order for ``Public Law (Pub. L.) 
109-461'' and ``SDVOSB/VOSB'';
0
b. Removing the definition of ``Service-disabled veteran-owned small 
business concern (SDVOSB)'' and adding the definition ``Service-
disabled veteran-owned small business (SDVOSB)'' in its place;
0
c. Adding a definition in alphabetical order for ``VA Rule of Two'';
0
d. Removing the definitions of ``Vendor Information Pages (VIP)'' and 
``Veteran-owned small business concern (VOSB)'' and adding the 
definitions ``Vendor Information Pages (VIP) or VIP database'' and 
``Veteran-owned small business (VOSB)'' in their places, respectively; 
and
0
e. Adding a definition in alphabetical order for ``Veterans First 
Contracting Program''.
    The additions read as follows:


802.101   Definitions.

* * * * *
    Public Law (Pub. L.) 109-461 means the Veterans Benefits, Health 
Care and Information Technology Act of 2006, as codified in 38 U.S.C. 
8127 and 8128.
    SDVOSB/VOSB when used as an initialism means a service-disabled 
veteran-owned small business (SDVOSB) and/or veteran-owned small 
business (VOSB) that has been found by VA eligible to participate in 
the Veterans First Contracting Program implemented at subpart 819.70 
and listed in the Vendor Information Pages. The term is synonymous with 
VA or VIP-verified small business concerns owned and controlled by 
Veterans.
    Service-disabled veteran-owned small business (SDVOSB) or small 
business concern owned and controlled by Veterans with service-
connected disabilities has the same meaning as service-disabled 
veteran-owned small business concern defined in FAR 2.101, except that 
for acquisitions authorized by 38 U.S.C. 8127 and 8128 for the Veterans 
First Contracting Program, these businesses must be listed as verified 
in the VIP database. In addition, some SDVOSB listed in the VIP 
database may be owned and controlled by a surviving spouse. See 
definition of surviving spouse in this section.
* * * * *
    VA Rule of Two means the determination process mandated in 38 
U.S.C. 8127(d)(1) whereby a contracting officer of the Department shall 
award contracts on the basis of competition restricted to small 
business concerns owned and controlled by veterans if the contracting 
officer has a reasonable expectation that two or more small business 
concerns owned and controlled by Veterans will submit offers and that 
the award can be made at a fair and reasonable price that offers best 
value to the United States. For purposes of this VA specific rule, a 
service-disabled veteran-owned small business (SDVOSB) or a veteran-
owned small business (VOSB), must meet the eligibility requirements in 
38 U.S.C. 8127(e), (f) and VAAR 819.7003 and be listed as verified in 
the Vendor Information Pages (VIP) database.
* * * * *
    Vendor Information Pages (VIP) or VIP database means the Department 
of Veterans Affairs Office of Small and Disadvantaged Business 
Utilization (OSDBU) Center for Verification and Evaluation (CVE) Vendor 
Information Pages (VIP) database at https://www.vetbiz.va.gov/vip/. 
This site's database lists businesses that VA CVE has determined 
eligible for the Veterans First Contracting Program.
    Veteran-owned small business (VOSB) has the same meaning as 
veteran-owned small business concern defined in FAR 2.101, except that 
for acquisitions authorized by 38 U.S.C. 8127 and 8128 for the Veterans 
First Contracting Program, these businesses must be listed as verified 
in the VIP database. SDVOSBs, including businesses whose SDVOSB status 
derive from ownership and control by a surviving spouse, are also 
considered VOSBs, as long as they are listed as eligible in VIP.
    Veterans First Contracting Program means the program authorized by 
Public Law 109-461 (38 U.S.C. 8127 and 8128), as implemented in subpart 
819.70. This program applies to all VA contracts (see FAR 2.101 for the 
definition of contracts) as well as Blanket Purchase Agreements (BPAs), 
Basic Ordering Agreements (BOAs), and orders against the Federal Supply 
Schedules (FSS), unless otherwise excluded by law.
* * * * *

PART 807 [REMOVED AND RESERVED]

0
3. Under the authority of 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3), 1303, 
and 1702; and 48 CFR 1.301 through 1.304, remove and reserve part 807.


0
4. Revise part 808 to read as follows:

PART 808--REQUIRED SOURCES OF SUPPLIES AND SERVICES

Sec.
808.000 Scope of part.
808.001 General.
808.001-70 Definitions.
808.002 Priorities for use of mandatory Government sources.
808.004 Use of other sources.
808.004-70 Use of other priority sources.
Subpart 808.4--Federal Supply Schedules
808.402 General.
808.404 Use of Federal Supply Schedules.
808.404-70 Use of Federal Supply Schedules--the Veterans First 
Contracting Program.
808.405 Ordering procedures for Federal Supply Schedules.
808.405-70 Set-aside procedures for VA and GSA Federal Supply 
Schedules.
808.405-570 VVSmall business set-asides and preferences--Veterans 
First Contracting Program clauses.
Subpart 808.6--Acquisition From Federal Prison Industries, Inc.
808.603 Purchase priorities.
Subpart 808.8--[Reserved]

    Authority: 38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C. 
1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.


808.000   Scope of part.

    This part deals with prioritizing sources of supplies and services 
for use by the Government based on unique VA statutory programs, as 
well as requirements when using the General Services Administration 
(GSA) Federal Supply Schedules program including the GSA delegated VA 
Federal Supply Schedule program.


808.001   General.


808.001-70   Definitions.

    As used in this part--
    Veterans Affairs (VA) Federal Supply Schedule (FSS) or ``VA FSS'' 
means FSS contracts awarded by the VA National Acquisition Center, 
under authority delegated by the General Services Administration (GSA) 
per FAR 8.402(a). VA FSS contracts include medical, dental, pharmacy 
and veterinary equipment and supplies in Federal Supply Classification 
(FSC) Group 65, instruments and laboratory equipment in FSC Group 66 
and health care services in FSC Group 621.


808.002   Priorities for use of mandatory Government sources.

    (a) Priorities. Contracting activities shall satisfy requirements 
for supplies and services from or through the mandatory sources listed 
in paragraphs (a)(1) and (2) of this section in descending order of 
priority:
    (1) Supplies. (i) VA inventories including the VA supply stock 
program (41 CFR 101-26.704) and VA excess.
    (ii) Excess from other agencies (see FAR subpart 8.1).
    (iii) Federal Prison Industries, Inc. (see 808.603). Prior to 
considering

[[Page 63003]]

award of a contract to Federal Prison Industries, Inc., contracting 
officers shall apply the VA Rule of Two (see 802.101) to determine 
whether a requirement should be awarded to veteran-owned small 
businesses under the authority of 38 U.S.C. 8127-28, by using the 
preferences and priorities in subpart 819.70. If an award is not made 
to a VIP-listed and verified service-disabled veteran-owned small 
business (SDVOSB)/veteran-owned small business (VOSB) as provided in 
subpart 819.70, FPI remains a mandatory source in accordance with FAR 
8.002.
    (iv) Supplies that are on the Procurement List maintained by the 
Committee for Purchase From People Who Are Blind or Severely Disabled, 
through the AbilityOne Program (FAR subpart 8.7). Supplies that are on 
the Procurement List but which do not meet the definition of a covered 
product in paragraph (a)(1)(iv)(A) of this section are only required to 
be procured from a mandatory source in accordance with FAR 8.002 if an 
award is not made to a VIP-listed and verified SDVOSB/VOSB after 
following the procedures set forth in subpart 819.70.
    (A) Definition. As used in this paragraph (a)(1)(iv), covered 
product means a product that--
    (1) Is included on the Procurement List as authorized under 41 
U.S.C. 8503(a) (see FAR 8.703) and was included on the Procurement List 
on or before December 22, 2006; or
    (2) Meets the following criteria--
    (i) Is a replacement for a product under this paragraph (a)(1)(iv);
    (ii) Is essentially the same and meeting the same requirement as 
the product being replaced; and
    (iii) The contracting officer determines the product meets the 
quality standards and delivery schedule requirements of VA.
    (B) Policy. Except as provided in paragraphs (a)(1)(iv)(C) and (D) 
of this section, contracting officers shall procure covered products 
that are on the Procurement List through the AbilityOne Program as set 
forth in FAR subpart 8.7. Contracting officers shall not procure 
products that are on the Procurement List, but which do not meet the 
definition of a covered product using the procedures set forth in FAR 
subpart 8.7, unless award cannot be made to a VIP-listed and verified 
SDVOSB/VOSB pursuant to the procedures set forth in subpart 819.70.
    (C) Exception for certain contracts awarded in accordance with the 
Veterans First Contracting Program in subpart 819.70. If a contract for 
a covered product awarded under the authority of 38 U.S.C. 8127(d)(1) 
to a VIP-listed SDVOSB or VOSB was in effect as of August 7, 2020, the 
requirement shall continue as an SDVOSB/VOSB set-aside in accordance 
with 819.7006 and 819.7007.
    (D) Termination or expiration of excepted contracts. When a 
contract previously awarded as set forth in paragraph (a)(1)(iv)(C) of 
this section is terminated or expires, contracting officers shall 
procure such covered product through the AbilityOne Program as a 
priority mandatory Government source (see paragraph (a)(1)(iv)(B) of 
this section), provided the head of the contracting activity or 
designee determines there is no reasonable expectation that--
    (1) Two or more SDVOSBs/VOSBs will submit offers; and
    (2) Award can be made at a fair and reasonable price that offers 
best value to the United States.
    (v) Wholesale supply sources, such as stock programs of the General 
Services Administration (GSA) (see 41 CFR 101-26.3), the Defense 
Logistics Agency (see 41 CFR 101-26.6), the Department of Veterans 
Affairs (see 41 CFR 101-26.704), and military inventory control points.
    (2) Services. Services that are on the Procurement List maintained 
by the Committee for Purchase From People Who Are Blind or Severely 
Disabled, through the AbilityOne Program (FAR subpart 8.7). For 
services that are on the Procurement List, but which do not meet the 
definition of a covered service in paragraph (a)(2)(i) of this section 
are only required to be procured from a mandatory source in accordance 
with FAR 8.002 if an award is not made to a VIP-listed and verified 
SDVOSB/VOSB after following the procedures set forth in subpart 819.70.
    (i) Definition. As used in this paragraph (a)(2)--
    Covered service means a service that--
    (1) Is included on the Procurement List as authorized under 41 
U.S.C. 8503(a) (see FAR 8.703) and was included on the Procurement List 
on or before December 22, 2006; or
    (2) Meets the following criteria--
    (i) Is a replacement for a service under this paragraph (a)(2);
    (ii) Is essentially the same and meeting the same requirement as 
the service being replaced; and
    (iii) The contracting officer determines the service meets the 
quality standards and delivery schedule requirements of VA.
    (ii) Policy. Except as provided in paragraphs (a)(2)(iii) and (iv) 
of this section, contracting officers shall procure covered services 
that are on the Procurement List through the AbilityOne Program as set 
forth in FAR subpart 8.7. Contracting officers shall not procure 
services that are on the Procurement List, but which do not meet the 
definition of a covered service using the procedures set forth in FAR 
subpart 8.7, unless award cannot be made to a VIP-listed and verified 
SDVOSB/VOSB pursuant to the procedures set forth in subpart 819.70.
    (iii) Exception for certain contracts awarded in accordance with 
the Veterans First Contracting Program in subpart 819.70. If a contract 
for a covered service awarded under the authority of 38 U.S.C. 
8127(d)(1) to a VIP-listed SDVOSB or VOSB was in effect as of August 7, 
2020, the requirement shall continue as an SDVOSB/VOSB set-aside in 
accordance with 819.7006 and 819.7007.
    (iv) Termination or expiration of certain excepted contracts. When 
a contract previously awarded as set forth in paragraph (a)(2)(iii) of 
this section is terminated or expires, contracting officers shall 
procure such covered service through the AbilityOne Program as a 
priority mandatory Government source (see paragraph (a)(2)(ii) of this 
section), provided the head of the contracting activity or designee 
determines there is no reasonable expectation that--
    (A) Two or more SDVOSBs/VOSBs will submit offers; and
    (B) Award can be made at a fair and reasonable price that offers 
best value to the United States.
    (b) Unusual and compelling urgency. The contracting officer may use 
a source other than those listed in paragraph (a) of this section when 
the need for supplies or services is of an unusual and compelling 
urgency (see FAR 6.302-2, 8.405-6, and 13.106-1 and part 806 for 
justification requirements).


808.004   Use of other sources.


808.004-70   Use of other priority sources.

    (a) Veterans contracting priority. In order to fulfill the 
requirements of 38 U.S.C. 8127-8128 (see subpart 819.70), contracting 
officers shall award contracts (see FAR 2.101 for the definition of 
contracts), as well as Blanket Purchase Agreements (BPAs), and orders 
against VA and GSA Federal Supply Schedules (FSS), providing priority 
in the awarding of such contracts to VIP-listed SDVOSBs first, then 
VOSBs.
    (b) Strategic sourcing priorities and application of the VA Rule of 
Two. To provide medical supplies in Federal Supply Classification (FSC) 
groups 65 and 66 efficiently and effectively the

[[Page 63004]]

VA, through previous reform initiatives, has implemented key strategic 
sourcing contract vehicles (e.g., prime-vendor, national contracts, VA 
FSS). If these strategic sourcing contracts were subject to the VA Rule 
of Two (see 802.101), they may be determined mandatory by the head of 
the contracting activity. Contracting officers shall consider these 
priority contract vehicles before using other existing contract 
vehicles.

Subpart 808.4--Federal Supply Schedules


808.402   General.

    (a) GSA has delegated authority to the VA to procure medical 
equipment, supplies, services and pharmaceuticals under the VA Federal 
Supply Schedule (FSS) program. The VA FSS program includes medical 
supplies in Federal Supply Classification (FSC) Groups 65 and 66 and 
services in FSC 621 for Professional and Allied Healthcare Staffing 
Services and Medical Laboratory Testing and Analysis Services.


808.404   Use of Federal Supply Schedules.


808.404-70   Use of Federal Supply Schedules--the Veterans First 
Contracting Program.

    (a) The Veterans First Contracting Program, implemented in subpart 
819.70 pursuant to 38 U.S.C. 8127-8128, applies to BPAs, and orders 
under FAR subpart 8.4 and has precedence over other small business 
programs.
    (b) Contracting officers, when establishing a BPA or placing an 
order against the FSS, shall ensure that priorities for veteran-owned 
small businesses are implemented within the VA hierarchy of small 
business program preferences in subpart 819.70. Specifically, the 
contracting officer will consider preferences for verified SDVOSBs 
first, then preferences for verified VOSBs. These priorities will be 
followed by preferences for other small businesses in accordance with 
819.7005.
    (c) If unable to satisfy requirements for supplies and services 
from the mandatory sources in 808.002 and 808.004-70, contracting 
officers may consider commercial sources in the open market (see FAR 
8.004(b)) if an open market acquisition is most appropriate (see FAR 
8.004) and a VA Rule of Two (see 802.101) determination is made (see 
subpart 819.70).
    (d) When the servicing agency will award contracts under an 
interagency agreement on behalf of the VA, the contracting officer 
shall ensure the interagency acquisition complies with FAR subpart 17.5 
and subpart 817.5 and includes terms requiring compliance with the VA 
Rule of Two (see 817.501).


808.405   Ordering procedures for Federal Supply Schedules.


808.405-70   Set-aside procedures for VA and GSA Federal Supply 
Schedules.

    To satisfy VA legislative requirements, contracting officers shall 
use the supplemental ordering procedures of this section when 
establishing a BPA or placing an order for supplies or services under 
this subpart as follows:
    (a) When market research supports set-asides. Pursuant to 38 U.S.C. 
8127, contracting activities shall set-aside BPAs and orders for VIP-
listed SDVOSBs or VOSBs when, based on research, the contracting 
officer has a reasonable expectation that two or more small business 
concerns owned and controlled by Veterans or owned and controlled by 
Veterans with service-connected disabilities will submit offers and 
that award can be made at a fair and reasonable price that offers best 
value to the United States. When the VA Rule of Two (see 802.101) is 
met:
    (1) The set-aside requirements as provided in 819.7006 and 819.7007 
are mandatory.
    (2) The requirements in FAR 8.405-1, 8.405-2, and 8.405-3 apply, 
except only quotes received from verified (i.e., VIP-listed) and 
eligible SDVOSBs or VOSBs will be considered.
    (3) The eligibility requirements of 819.7003, 819.7006, and 
819.7007 apply, including the requirement for offerors to be VIP-listed 
at the time they submit offers/quotes as well as at the time awards are 
made.
    (4) The contracting officer shall notify potential offerors of the 
unique VA verification requirements by including in the solicitation 
the applicable set-aside clause prescribed at 819.7011.
    (b) When market research does not support set-asides. Pursuant to 
38 U.S.C. 8128 and to the extent that market research does not support 
an SDVOSB or VOSB set-aside in either FSS or the open market, the 
contracting activity shall give priority in the award of orders placed 
under this part to VIP-listed SDVOSBs/VOSBs through the use of 
evaluation preferences giving priority to SDVOSBs first, then to a 
lesser extent VOSBs, and finally to any firm that proposes to use 
SDVOSBs/VOSBs as subcontractors. Contracting officers must use the 
clause prescribed in 808.405-570(b).
    (c) SDVOSB/VOSB eligibility requirements. The SDVOSB and VOSB 
eligibility requirements in 819.7003 apply, including current SDVOSB 
and VOSB VIP-listed status at the time of submission of offer/quote and 
at time of award. The offeror must also represent that it meets the 
small business size standard for the assigned North American Industry 
Classification System (NAICS) code as well as other small business 
requirements (including completing the certification found in 852.219-
75 or 852.219-76.


808.405-570   Small business set-asides and preferences--Veterans First 
Contracting Program clauses.

    (a) When setting aside an order pursuant to 808.405-70(a), the 
applicable clause prescribed in 819.7011 for SDVOSB/VOSB set-asides 
shall be used.
    (b) When an SDVOSB/VOSB set-aside is not feasible, the ordering 
activity shall use the clause at 852.208-70, Service-Disabled Veteran-
Owned and Veteran-Owned Small Business Evaluation Factors--Orders or 
BPAs, for task orders, delivery orders, or BPAs using evaluation 
factors other than price alone.
    (c) The ordering activity shall insert the clause at 852.208-71, 
Service-Disabled Veteran-Owned and Veteran-Owned Small Business 
Evaluation Factor Commitments--Orders or BPAs, in request for quotes 
and resulting orders that include clause 852.208-70, Service-Disabled 
Veteran-Owned and Veteran-Owned Small Business Evaluation Factors--
Orders or BPAs.

Subpart 808.6--Acquisition From Federal Prison Industries, Inc.


808.603   Purchase priorities.

    A waiver from Federal Prison Industries is not needed when 
comparable supplies and services are procured in accordance with 
subpart 819.70.

Subpart 808.8 [Reserved]

0
5. Part 810 is revised to read as follows:

PART 810--MARKET RESEARCH

Sec.
810.000 Scope of part.
810.001 Policy.
810.001-70 Market research policy--use of VA Vendor Information 
Pages.

    Authority: 38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C. 
1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.


810.000   Scope of part.

    The Veterans First Contracting Program in subpart 819.70 applies to 
contract actions under this part and takes precedence over other small

[[Page 63005]]

business programs referenced in FAR part 10 and FAR part 19.


810.001   Policy.


810.001-70   Market research policy--use of VA Vendor Information 
Pages.

    When performing market research, contracting officers shall review 
the Vendor Information Pages (VIP) database at https://www.vetbiz.va.gov/vip/ as required by subpart 819.70. The contracting 
officer will search the VIP database by applicable North American 
Industry Classification System (NAICS) codes to determine whether two 
or more verified service-disabled veteran-owned small businesses 
(SDVOSBs) and/or veteran-owned small businesses (VOSBs), with the 
appropriate NAICS code, are listed as verified in the VIP database. The 
contracting officer will determine, among other things as the 
requirement dictates, whether VIP-listed SDVOSBs or VOSBs identified as 
a result of market research are capable of performing the work, are 
likely to submit an offer/quote, and whether an award can be made at a 
fair and reasonable price that offers best value to the Government. The 
contracting officer shall use the market research for acquisition 
planning purposes, and as set forth in subpart 819.70, conduct a VA 
Rule of Two (see 802.101) determination in accordance with the 
contracting order of priority (see 819.7005 and 819.7006).

PART 813--SIMPLIFIED ACQUISITION PROCEDURES

0
6. The authority citation for part 813 continues to read as follows:

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


0
7. Revise section 813.003-70 to read as follows:


813.003-70   General policy.

    (a) The Veterans First Contracting Program in subpart 819.70 
applies to VA contracts, orders and BPAs under this part and has 
precedence over other small business programs referenced in FAR parts 
13 and 19. For VA policy regarding mandatory Government sources, refer 
to 808.002.
    (b) Notwithstanding FAR 13.003(b)(2), the contracting officer shall 
make an award utilizing the priorities for veteran-owned small 
businesses as implemented within the VA hierarchy of small business 
program preferences, the Veterans First Contracting Program in subpart 
819.70. Specifically, the contracting officer shall consider 
preferences for verified service-disabled veteran-owned small 
businesses (SDVOSBs) first, then preferences for verified veteran-owned 
small businesses (VOSBs). These priorities will be followed by 
preferences for other small businesses in accordance with 819.7005.
    (c) When using competitive procedures, the preference for 
restricting competition to verified SDVOSBs/VOSBs in accordance with 
paragraph (b) of this section is mandatory whenever market research 
provides a reasonable expectation of receiving two or more offers/
quotes from eligible, capable and verified firms, and that an award can 
be made at a fair and reasonable price that offers best value to the 
Government.
    (1) Pursuant to 38 U.S.C. 8127, contracts under this part shall be 
set-aside for SDVOSBs/VOSBs, in accordance with 819.7006 or 819.7007 
when supported by market research. Contracting officers shall use the 
applicable set-aside clause prescribed at 819.7011.
    (2) Pursuant to 38 U.S.C. 8128 and to the extent that market 
research does not support an SDVOSB or VOSB set-aside, the contracting 
officer shall include evaluation factors as prescribed at 815.304-70 
and the evaluation criteria clause prescribed at 815.304-71(a).
    (d) The SDVOSB and VOSB eligibility requirements in 819.7003 apply, 
including verification of the SDVOSB and VOSB status of an offeror, and 
other small business requirements in 13 CFR part 121 and 13 CFR 125.6 
(e.g., small business representation, nonmanufacturer rule, and 
subcontracting limitations (see 819.7004 and 819.7011)).

Subpart 813.1--Procedures

0
8. Revise section 813.106-70 to read as follows:


813.106-70  Soliciting competition, evaluation of quotations or offers, 
award and documentation--the Veterans First Contracting Program.

    (a) When using competitive procedures under this part, the 
contracting officer shall use the Veterans First Contracting Program in 
subpart 819.70 and the guidance set forth in 813.003-70.
    (b) Pursuant to 38 U.S.C 8127(b), contracting officers may use 
other than competitive procedures to enter into a contract with a 
verified SDVOSB or VOSB for procurements below the simplified 
acquisition threshold, as authorized by FAR 6.302-5 and 806.302-570(a) 
and (b).
    (c) For procurements above the simplified acquisition threshold, 
pursuant to 38 U.S.C. 8127(c), contracting officers may also award a 
contract under this part to a firm verified under the Veterans First 
Contracting Program at subpart 819.70, using procedures other than 
competitive procedures, as authorized by FAR 6.302-5 and 806.302-570(a) 
and (c), and in accordance with 819.7008 and 819.7009.

0
9. Part 819 is revised to read as follows:

PART 819--SMALL BUSINESS PROGRAMS

Sec.
819.000 Scope of part.
Subpart 819.2--Policies
819.201 General policy.
819.202 Specific policies.
819.203 Relationship among small business programs.
819.203-70 Priority for SDVOSB/VOSB contracting preferences.
Subpart 819.3--Determination of Small Business Size and Status for 
Small Business Programs
819.307 Protesting a firm's status as a service-disabled veteran-
owned small business concern.
819.307-70 SDVOSB/VOSB status protests.
Subpart 819.5--Small Business Total Set-Asides, Partial Set-Asides, and 
Reserves
819.501 General.
819.501-70 General principles for setting aside VA acquisitions.
819.502 Setting aside acquisitions.
819.502-1 Requirements for setting aside acquisitions.
819.502-2 Total small business set-asides.
819.507 Solicitation provisions and contract clauses.
819.507-70 Additional VA solicitation provisions and contract 
clauses.
Subpart 819.6--[Reserved]
Subpart 819.7--The Small Business Subcontracting Program
819.704-70 VA subcontracting plan requirements.
819.708 Contract clauses.
Subpart 819.8--Contracting With the Small Business Administration (the 
8(a) Program)
819.800 General.
819.811 Preparing the contracts.
819.811-370 VA/SBA Partnership Agreement and contract clauses.
Subpart 819.70--The VA Veterans First Contracting Program
819.7001 General.
819.7002 Applicability.
819.7003 Eligibility.
819.7004 Limitations on subcontracting compliance requirements.
819.7005 Contracting order of priority.
819.7006 VA service-disabled veteran-owned small business set-aside 
procedures.
819.7007 VA veteran-owned small business set-aside procedures.

[[Page 63006]]

819.7008 Sole source awards to verified service-disabled veteran-
owned small businesses.
819.7009 Sole source awards to verified veteran-owned small 
businesses.
819.7010 Tiered set-aside evaluation.
819.7011 Contract clauses.
Subpart 819.71--[Reserved]

    Authority: 15 U.S.C. 631, et seq.; 15 U.S.C. 637(d)(4)(E); 38 
U.S.C. 8127-8128; 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.


819.000   Scope of part.

    (a) This part supplements FAR part 19 and implements the service-
disabled veteran-owned small business (SDVOSB), veteran-owned small 
business (VOSB), and small business provisions of 38 U.S.C. 8127 and 
8128, Executive Order 13360, and the Small Business Act (15 U.S.C. 631 
et. seq.) as applied to the Department of Veterans Affairs (VA). This 
part also covers--
    (1) Goals for using SDVOSBs and VOSBs;
    (2) Priorities and preferences for using SDVOSBs/VOSBs;
    (3) SDVOSB/VOSB eligibility and contract compliance;
    (4) Setting aside acquisitions for SDVOSBs/VOSBs;
    (5) Sole-source awards to SDVOSBs and VOSBs; and
    (6) Evaluation preferences and contract clauses.

Subpart 819.2--Policies


819.201  General policy.

    (a) It is VA policy that small business concerns owned and 
controlled by veterans shall have maximum practicable opportunity to 
participate in VA acquisitions, consistent the priorities and 
preferences prescribed under the Veterans First Contracting Program in 
subpart 819.70.
    (1) To carry out this policy the Secretary shall establish annual 
SDVOSB and VOSB contracting goals.
    (2) In support of these goals, each administration and staff office 
shall in turn establish annual goals for each subordinate contracting 
activity that present, for that activity, the maximum practicable 
opportunity for small business concerns, and particularly SDVOSBs/
VOSBs, to participate in the performance of the activity's contracts 
and subcontracts.
    (3) The attainment of these goals or the use of interagency 
acquisition vehicles does not limit the applicability of the Veterans 
First Contracting Program and priorities in subpart 819.70.
    (c) In addition to the duties and responsibilities in FAR 
19.201(c), the Executive Director, Office of Small and Disadvantaged 
Business Utilization (OSDBU), is responsible for overseeing 
implementation of the Veterans First Contracting Program under subpart 
819.70.
    (d) Each organization with contracting authority shall designate 
small business specialists/technical advisors in coordination with the 
OSDBU Director.


819.202  Specific policies.

    OSDBU is responsible for reviewing procurement strategies, 
establishing thresholds for such reviews and making recommendations to 
assist contracting officers in the implementation of this part. These 
responsibilities shall be conducted within the VA hierarchy of small 
business program preferences established by 38 U.S.C. 8127(h) (see 
subpart 819.70), which requires VA to consider preferences for VIP-
listed SDVOSBs first, then preferences for VIP-listed VOSBs. 
Contracting officers shall use VA Form 2268, Small Business Program and 
Contract Bundling Review, to document actions and recommendations.


819.203  Relationship among small business programs.


819.203-70  Priority for SDVOSB/VOSB contracting preferences.

    (a) 38 U.S.C. 8127 and 8128 require the VA to provide priority and 
establish special acquisition methods to increase contracting 
opportunities for SDVOSBs/VOSBs. These priorities and special 
acquisition methods are set forth in subpart 819.70 and shall be 
applied by contracting officers before other priorities and preferences 
in FAR 19.203.
    (b) Pursuant to 38 U.S.C. 8128, contracting officers shall give 
priority to SDVOSBs/VOSBs if such business concern(s) also meet the 
requirements of that contracting preference. The requirement in this 
paragraph (b) applies even when using a contracting preference under 
FAR part 19 (for example, a women-owned small business set-aside).

Subpart 819.3--Determination of Small Business Size and Status for 
Small Business Programs


819.307  Protesting a firm's status as a service-disabled veteran-owned 
small business concern.


819.307-70  SDVOSB/VOSB status protests.

    All protests relating to size, status, and/or whether an SDVOSB or 
a VOSB is a ``small business'' are subject to the Small Business 
Administration (SBA) regulations at 13 CFR part 121 and must be filed 
in accordance with SBA guidelines at 13 CFR part 134 (see FAR subpart 
19.3). Pursuant to Public Law 114-328, SBA will hear cases related to 
size and status, including ownership and control challenges under the 
VA Veterans First Contracting Program (see 38 U.S.C. 8127(f)(8)).

Subpart 819.5--Small Business Total Set-Asides, Partial Set-Asides, 
and Reserves


819.501  General.


819.501-70  General principles for setting aside VA acquisitions.

    (a) The following principles apply to VA acquisitions under this 
subpart:
    (1) Before setting aside or reserving an acquisition for small 
businesses under FAR subpart 19.5, contracting officers shall refer to 
808.002 and 819.203-70 and subpart 819.70 for VA SDVOSB/VOSB priorities 
and preferences.
    (2) Set-asides under the Veterans First Contracting Program in 
subpart 819.70 (see 819.7006 and 819.7007) have precedence over other 
small business set-asides authorized in FAR part 19, both above and 
below the simplified acquisition threshold (SAT). An SDVOSB/VOSB set-
aside satisfies the legislative requirement to reserve actions below 
the SAT for small business.
    (3) Pursuant to 38 U.S.C. 8127(d), set-asides for SDVOSBs/VOSBs are 
mandatory whenever a contracting officer has a reasonable expectation 
of receiving two or more offers/quotes from eligible, capable and 
verified firms, and that an award can be made at a fair and reasonable 
price that offers best value to the Government. (VA Rule of Two (see 
802.101))
    (b) The set-aside principles in this section apply to VA 
acquisitions even when a procuring activity is meeting its goals or is 
planning the use of an interagency agreement, Federal Supply Schedule, 
or a multiple award contract, including a Governmentwide contract 
vehicle.
    (c) The requirements in this section apply to all VA acquisitions 
under this subpart, including reserves, orders, and BPAs under multiple 
award contracts, GSA Federal Supply Schedule contracts, and Multi-
Agency Contracts (MACs) awarded by another agency. A set-aside 
restricted to SDVOSBs/VOSBs pursuant to subpart 819.70 satisfies 
competition requirements in FAR part 6, as well as fair opportunity 
requirements for orders under multiple-award contracts (see FAR 
16.505(b)(2)(i)(F)).

[[Page 63007]]

819.502  Setting aside acquisitions.


819.502-1  Requirements for setting aside acquisitions.

    (b) Contracting officers shall refer to 808.002 for the VA policy 
regarding priorities for use of SDVOSBs/VOSBs and mandatory Government 
sources.


819.502-2  Total small business set-asides.

    (a) If the contracting officer receives no acceptable offers from 
responsible small business concerns, the set-aside shall be withdrawn 
and the requirement, if still valid, shall be resolicited on an 
unrestricted basis or, if permitted in the solicitation, the 
contracting officer will follow the tiered set-aside evaluation 
procedures in 819.7010, Tiered evaluation, and proceed to the next 
eligible tier in the evaluation process.


819.507  Solicitation provisions and contract clauses.


819.507-70  Additional VA solicitation provisions and contract clauses.

    For contracts, orders, or BPAs to be issued as SDVOSB/VOSB reserve, 
tiered evaluation, set-aside, or sole source, see 819.7011. Also see 
subparts 808.4 and 815.3 and 819.203-70 for requirements and clauses 
applicable to VA small business set-asides.

Subpart 819.6--[Reserved]

Subpart 819.7--The Small Business Subcontracting Program


819.704-70  VA subcontracting plan requirements.

    (a) VA's current subcontracting goals, at a minimum, shall be 
inserted into all solicitations which contain FAR clause 52.219-9. To 
the maximum extent possible, the contracting officer shall ensure that 
individual subcontracting plans submitted by offerors subject to clause 
852.219-70, VA Small Business Subcontracting Plan Minimum Requirements, 
include SDVOSB/VOSB goals that are commensurate with the annual VA 
SDVOSB/VOSB subcontracting goals (see 819.708).
    (1) Only firms listed as verified on the Vendor Information Pages 
(VIP) database (see subpart 819.70) will count towards SDVOSB and VOSB 
goals.
    (2) A contractor may reasonably rely on a subcontractor's status as 
shown in the VIP database as of the date of subcontract award, provided 
the contractor retains records of the results of the VIP database 
query.
    (3) In furtherance of 38 U.S.C. 8127(a)(4), contractors shall 
submit subcontracting plan reports to OSDBU as set forth in clause 
852.219-70, VA Small Business Subcontracting Plan Minimum Requirements. 
Unless otherwise directed by OSDBU, VA Form 0896A, Report of 
Subcontracts to Small and Veteran Owned Business, shall be used to 
submit the required information.
    (b) Subcontracting goals should be expressed as a percentage of 
total dollars to be subcontracted unless otherwise stated in the 
solicitation.
    (c) If an offeror proposes to use an SDVOSB/VOSB subcontractor for 
the purpose of receiving SDVOSB/VOSB evaluation factors credit pursuant 
to 808.405-70 or 815.304-70, the contracting officer shall ensure that 
the offeror, if awarded the contract, actually uses the proposed 
subcontractor or another SDVOSB/VOSB for that subcontract or for work 
of similar value, in accordance with clause 852.208-70, Service-
Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation 
Factors--Orders or BPAs, or 852.215-71, Evaluation Factor Commitments.
    (d) Pursuant to 38 U.S.C. 8127(g), any business concern that is 
determined by VA to have willfully and intentionally misrepresented a 
company's SDVOSB or VOSB status is subject to debarment from 
contracting with the Department for a period of not less than five 
years. This includes the debarment of all principals in the business 
(see 809.406-270).


819.708  Contract clauses.

    (b) The contracting officer shall insert clause 852.219-70, Small 
Business Subcontracting Plan Minimum Requirements, in solicitations and 
contracts that include FAR clause 52.219-9, Small Business 
Subcontracting Plan.

Subpart 819.8--Contracting With the Small Business Administration 
(the 8(a) Program)


819.800  General.

    (e) The Small Business Administration (SBA) and the Department of 
Veterans Affairs (VA) have entered into a Partnership Agreement 
delegating SBA's contract execution and administrative functions to VA. 
Contracting officers shall follow the alternate procedures in the 
Partnership Agreement and this subpart, as applicable, to award an 8(a) 
contract. In the event the Partnership Agreement ceases to be in 
effect, contracting officers shall follow the procedures in FAR subpart 
19.8.


819.811  Preparing the contracts.


819.811-370  VA/SBA Partnership Agreement and contract clauses.

    (a) Before placing new requirements under the 8(a) program, the 
contracting officer must determine whether an SDVOSB/VOSB set-aside is 
mandated under the VA Rule of Two (see 802.101). If the determination 
does not result in an SDVOSB/VOSB set-aside, the contracting officer 
may consider the 8(a) program.
    (b) The Partnership Agreement provides that SBA can release 
procurements already in the program whenever an SDVOSB or VOSB set-
aside is feasible.
    (c) When an 8(a) acquisition is processed pursuant to the 
Partnership Agreement, the contracting officer shall:
    (1) For competitive solicitations and awards, use the clause at 
852.219-71, VA Notification of Competition Limited to Eligible 8(a) 
Participants, substituting paragraph (c) of FAR 52.219-18, Notification 
of Competition Limited to Eligible 8(a) Participants, with paragraph 
(c) contained in 852.219-71.
    (2) For noncompetitive solicitations and awards insert the clause 
at 852.219-72, Notification of Section 8(a) Direct Awards, instead of 
the prescribed FAR clauses at 52.219-11, Special 8(a) Contract 
Conditions; 52.219-12, Special 8(a) Subcontract Conditions; and 52.219-
17, Section 8(a) Award.
    (3) In all instances, contracting include the clause at FAR 52.219-
14, Limitations on Subcontracting, or if applicable 52.219-33, 
Nonmanufacturer Rule.

Subpart 819.70--The VA Veterans First Contracting Program


819.7001  General.

    (a) Sections 502 and 503 of Public Law 109-461, the Veterans 
Benefits, Health Care, and Information Technology Act of 2006, as 
amended (38 U.S.C. 8127- 8128), authorizes a VA specific program to 
increase contracting opportunities for eligible small business concerns 
owned and controlled by Veterans with service-connected disabilities 
and small business concerns owned and controlled by Veterans. Once 
ownership and control by these veterans is verified, these businesses 
are referred to as service-disabled veteran-owned small businesses 
(SDVOSBs) and veteran-owned small businesses (VOSBs) or collectively 
SDVOSB/VOSB for ease of reference.
    (b) The program as implemented in this subpart shall be known as 
the Veterans First Contracting Program. The purpose of the program is 
to increase

[[Page 63008]]

contracting opportunities and provide for priority in the award of 
contracts and subcontracts to SDVOSBs/VOSBs so they can fully 
participate in the VA contracting process. Eligible SDVOSBs qualify for 
any VOSB preferences under this subpart.
    (c) VA's program is codified at 38 U.S.C. 8127(b), (c), and (d), 
and provides the authority for VA contracting officers to make awards 
to SDVOSBs/VOSBs using restricted competition, as well as other than 
full and open competition (sole source), as set-forth in this subpart. 
Additionally, 38 U.S.C. 8128 provides the authority for VA to give 
SDVOSBs/VOSBs priority in the awarding of contracts and subcontracts 
using evaluation preferences.
    (d) Contracting officers shall award contracts by restricting 
competition to eligible SDVOSBs/VOSBs as provided in 819.7006 and 
819.7007. The contracting officer may use other preferences in this 
subpart as appropriate and in accordance with procuring activity 
guidelines.
    (e) Pursuant to 38 U.S.C. 8128, contracting officers shall give 
priority to SDVOSBs/VOSBs if such business concern(s) also meet the 
requirements of that contracting preference. In carrying out this 
responsibility, contracting officers shall include the clauses 
prescribed at 808.405-570 and 815.304-71 in competitive solicitations 
and contracts that are not set-aside for SDVOSB/VOSB, including those 
under FAR part 12. The requirement in this paragraph (e) applies even 
when using a contracting preference under FAR part 19 (for example, a 
women-owned small business set-aside).
    (f) The attainment of goals or the use of interagency vehicles or 
Governmentwide contract vehicles (i.e., Federal Supply Schedules (FSS)) 
does not relieve the contracting officer from using SDVOSB/VOSB set-
asides and other preferences as provided in subpart 819.70. Moreover, 
if the VA enters into a contract, agreement, or other arrangement with 
any governmental entity to acquire goods or services, the entity acting 
on behalf of the VA through such an interagency acquisition or other 
agreement will comply, to the maximum extent feasible, with the 
provisions of the Veterans First Contracting Program as set forth in 
this subpart.
    (g) Contracting officers shall ensure awards are made using the VA 
hierarchy of SDVOSB/VOSB preferences in this subpart. Specifically, the 
contracting officer will consider preferences for eligible SDVOSBs 
first, then preferences for other eligible VOSBs.
    (h) When an offer of an SDVOSB/VOSB prime contractor includes a 
proposed team of small business subcontractors and specifically 
identifies the first-tier subcontractor(s) in the proposal, the 
contracting officer must consider the capabilities, past performance, 
and experience of each first tier subcontractor that is part of the 
team as the capabilities, past performance, and experience of the small 
business prime contractor if the capabilities, past performance, and 
experience of the small business prime does not independently 
demonstrate capabilities and past performance necessary for award.


819.7002  Applicability.

    Unless otherwise exempted by law, this subpart applies to VA 
contracting activities and contracts (see FAR 2.101) including BPAs and 
orders under FAR subpart 8.4 and acquisition of commercial products or 
commercial services under FAR part 12. In addition, this subpart 
applies to VA contractors, their subcontractors and to any Government 
entity that has a contract, agreement, or other arrangement with the VA 
to acquire goods and services on behalf of the VA (see 817.502). For 
applicability and VA policy regarding priorities for use of mandatory 
Government sources see 808.002.


819.7003  Eligibility.

    (a) SDVOSB/VOSB size eligibility, challenges, and appeals are 
governed by the Small Business Administration (SBA) regulations at 13 
CFR parts 121, 125, and 134, except where directed otherwise by this 
part or 38 CFR part 74.
    (b) At the time of submission of offers/quotes, and at the time of 
award of any contract, the offeror must represent to the contracting 
officer that it is a--
    (1) SDVOSB or VOSB eligible under this subpart;
    (2) Small business concern under the North American Industry 
Classification System (NAICS) code assigned to the acquisition; and
    (3) Listed as a verified SDVOSB/VOSB on the VA's Vendor Information 
Pages (VIP) at https://www.vetbiz.va.gov/vip/.
    (c) A joint venture may be considered eligible if it meets the 
requirements in 13 CFR part 125; and the joint venture is listed in the 
VIP database.
    (d) To receive a benefit under the Veterans First Contacting 
Program, an otherwise eligible SDVOSB/VOSB must also meet SBA 
requirements at 13 CFR parts 121 and 125, including the nonmanufacturer 
rule requirements at 13 CFR 121.406(b) and limitations on 
subcontracting at 13 CFR 125.6. The nonmanufacturer rule (see 13 CFR 
121.406) and the limitations on subcontracting requirements apply to 
all SDVOSB and VOSB set-aside and sole source contracts above the 
micro-purchase threshold. An offeror shall submit a certification of 
compliance to be considered eligible for any award under this part (see 
819.7004).
    (e) Pursuant to 38 U.S.C. 8127(g), any business concern that is 
determined by VA to have willfully and intentionally misrepresented a 
company's SDVOSB/VOSB status is subject to debarment from contracting 
with the Department for a period of not less than five years. This 
includes the debarment of all principals in the business. See 809.406-
270.


819.7004  Limitations on subcontracting compliance requirements.

    (a) A contract awarded under this subpart is subject to the SBA 
limitations on subcontracting requirements in 13 CFR 125.6, provided 
that--
    (1) Only VIP-listed SDVOSBs are considered eligible and/or 
``similarly situated'' under an SDVOSB sole source or set-aside.
    (2) A VOSB is subject to the same limitations on subcontracting 
that apply to an SDVOSB.
    (3) Any VIP-listed SDVOSB/VOSB is considered eligible and/or 
``similarly situated'' under a VOSB sole source or set-aside.
    (b) Pursuant to the authority of 38 U.S.C. 8127(k)(2), a 
contracting officer may award a contract under this subpart only after 
obtaining from the offeror a certification that the offeror will comply 
with the limitations on subcontracting requirement as provided in the 
solicitation and which shall be included in the resultant contract (see 
819.7011).
    (1) The formal certification must be completed, signed and returned 
with the offeror's bid, quotation, or proposal.
    (2) The Government will not consider offers for award from offerors 
that do not provide the certification with their bid, quotation, or 
proposal, and all such responses will be deemed ineligible for 
evaluation and award.
    (c) An otherwise eligible first tier subcontractor must meet the 
NAICS size standard assigned by the prime contractor and be listed in 
VIP to count as similarly situated. Any work that a first tier VIP-
listed subcontractor further subcontracts will count towards the 
percent of subcontract amount that cannot be exceeded.
    (d) An SDVOSB/VOSB awarded a contract on the basis of a set-aside, 
sole source, or an evaluation preference is

[[Page 63009]]

required to comply with the limitations on subcontracting either by--
    (1) The end of the base term, and then by the end of each 
subsequent option period; or, by the end of the performance period for 
each order issued under the contract, at the contracting officer's 
discretion; and
    (2) For an order set aside for SDVOSB/VOSB as described in 808.405 
and FAR 16.505(b)(2)(i)(F), or for an order issued directly to an 
SDVOSB/VOSB in accordance with FAR 19.504(c)(1)(ii), by the end of the 
performance period for the order.
    (e) The contracting officer may also, at their discretion, require 
the contractor to demonstrate its compliance with the limitations on 
subcontracting at any time during performance of the contract, and upon 
completion of a contract if the information regarding such compliance 
is not already available to the contracting officer. Evidence of 
compliance includes, but is not limited to, invoices, copies of 
subcontracts, or a list of the value of tasks performed.
    (f) Pursuant to Public Law 116-183, the Office of the Small and 
Disadvantaged Business Utilization (OSDBU) and Chief Acquisition 
Officer (CAO), will implement a process to monitor compliance with the 
requirement in this section. The OSDBU and CAO shall jointly refer any 
violations or suspected violations to the VA Office of Inspector 
General. This referral obligation does not relieve contracting officers 
of their obligation to report suspected violations of law to the Office 
of the Inspector General (OIG).
    (1) If the Secretary or designee determines in consultation with 
the Inspector General that an SDVOSB/VOSB awarded a contract pursuant 
to 38 U.S.C. 8127 did not act in good faith with respect to the 
requirements described in 819.7003(d), such SDVOSB/VOSB shall be 
subject to any or all of the following--
    (i) Referral to the VA Suspension and Debarment Committee;
    (ii) A fine under section 16(g)(1) of the Small Business Act (15 
U.S.C. 645(g)(1)); and
    (iii) Prosecution for violating 18 U.S.C. 1001.
    (2) The Inspector General shall report to the Congress annually on 
the number of referred violations and suspected violations, and the 
disposition of such violations, including the number of small business 
concerns suspended or debarred from federal contracting or referred for 
Department of Justice prosecution.


819.7005  Contracting order of priority.

    (a) In determining the acquisition strategy applicable to a 
procurement requirement not otherwise covered under 808.002, the 
contracting officer shall observe the order of contracting preferences 
in 38 U.S.C. 8127(h).
    (b) Specifically, preferences for awarding contracts to small 
business concerns shall be applied in the following order of priority:
    (1) Contracts awarded to small business concerns owned and 
controlled by Veterans with service-connected disabilities as provided 
in this subpart.
    (2) Contracts to small business concerns owned and controlled by 
Veterans that are not covered by paragraph (b)(1) of this section as 
provided in this subpart.
    (3) Contracts awarded pursuant to--
    (i) Section 8(a) of the Small Business Act (15 U.S.C. 637(a) as 
provided in FAR subpart 19.8; or
    (ii) Section 31 of the Small Business Act (15 U.S.C. 657a) as 
provided in FAR subpart 19.13.
    (4) Contracts awarded pursuant to any other small business set 
aside contracting preference, with due deference to the priority for 
awarding to women-owned small businesses as provided in FAR 19.203(b) 
through (e) and FAR subpart 19.15.


819.7006  VA service-disabled veteran-owned small business set-aside 
procedures.

    (a) The contracting officer shall consider SDVOSB set-asides before 
considering VOSB set-asides. Except as authorized by 808.002, 813.106, 
819.7007, and 819.7008, the contracting officer shall set-aside a 
contract action exceeding the micro-purchase threshold for competition 
restricted to VIP-listed SDVOSB upon a reasonable expectation based on 
market research that--
    (1) Offers/quotations will be received from two or more eligible 
VIP-listed SDVOSBs; and
    (2) Award can be made at a fair and reasonable price that offers 
the best value to the Government.
    (b) When conducting SDVOSB set-asides, the contracting officer 
shall ensure that--
    (1) Offerors are registered and verified as eligible in the VIP 
database at the time of submission of offers and at time of award; and
    (2) Offerors affirmatively represent their SDVOSB and small 
business status based on the size standard corresponding to the North 
American Industrial Classification System (NAICS) code assigned to the 
solicitation/contract, as set forth in 819.7003(b) or (c).
    (c) If the contracting officer receives only one acceptable offer 
at a fair and reasonable price from an eligible VIP-listed SDVOSB, the 
contracting officer may make an award to that concern. If the 
contracting officer receives no acceptable offers from eligible 
SDVOSBs, the set-aside shall be withdrawn and the requirement, if still 
valid, set aside for VOSB competition if warranted or otherwise 
procured using the most appropriate strategy based on the results of 
market research.


819.7007  VA veteran-owned small business set-aside procedures.

    (a) The contracting officer shall consider SDVOSB set-asides before 
considering VOSB set-asides. Except as authorized by 808.002, 813.106, 
819.7007, and 819.7008, the contracting officer shall set aside a 
contract action exceeding the micro-purchase threshold for competition 
restricted to VIP-listed VOSBs upon a reasonable expectation based on 
market research that--
    (1) Offers/quotations will be received from two or more VIP-listed 
VOSBs; and
    (2) Award can be made at a fair and reasonable price that offers 
the best value to the Government.
    (b) When conducting VOSB set-asides, the contracting officer shall 
ensure that--
    (1) Offerors are registered and verified as eligible in the VIP 
database at the time of submission of offers and at time of award; and
    (2) Offerors affirmatively represent their SDVOSB/VOSB and small 
business status based on the size standard corresponding to the NAICS 
code assigned to the solicitation/contract (see 819.7003(b) and (c)).
    (c) If the contracting officer receives only one acceptable offer 
at a fair and reasonable price from an eligible VIP-listed VOSB in 
response to a VOSB set-aside, the contracting officer may make an award 
to that concern. If the contracting officer decides not to make an 
award to the single acceptable offer received, or if the contracting 
officer receives no acceptable offers from eligible VOSBs, the set-
aside shall be withdrawn and the requirement, if still valid, set aside 
for other small business programs in accordance with 819.7005 or 
otherwise procured using the most appropriate strategy based on the 
results of market research.


819.7008  Sole source awards to verified service-disabled veteran-owned 
small businesses.

    (a) A contracting officer may award a contract to a VIP-listed 
service-disabled veteran-owned small business (SDVOSB) using other than 
competitive procedures provided--

[[Page 63010]]

    (1) The anticipated award price of the contract (including options) 
will not exceed $5 million;
    (2) The requirement is synopsized and the required justification 
pursuant to FAR 6.302-5(c)(2)(ii) is posted in accordance with FAR part 
5;
    (3) The SDVOSB has been determined to be a responsible contractor 
with respect to performance; and
    (4) In the estimation of the contracting officer contract award can 
be made at a fair and reasonable price that offers best value to the 
Government.
    (b) The contracting officer's determination to make a sole source 
award is a business decision wholly within the discretion of the 
contracting officer. To ensure that opportunities are available to the 
broadest number of SDVOSBs, this authority is to be used only when in 
the best interest of the Government.
    (c) A determination that only one SDVOSB can meet the requirement 
is not required. However, in accordance with FAR 6.302-5(c)(2)(ii), 
contracts awarded using this authority shall be supported by a written 
justification and approval described in FAR 6.303 and 6.304, as 
applicable.
    (d) When conducting a SDVOSB sole source acquisition, the 
contracting officer shall ensure the business meets eligibility 
requirements in 819.7003.
    (e) A procurement requirement estimated to exceed the legislative 
threshold of $5 million shall not be split or subdivided to permit the 
use of this SDVOSB sole source authority.


819.7009  Sole source awards to verified veteran-owned small 
businesses.

    (a) A contracting officer may award a contract to a VIP-listed 
veteran-owned small business (VOSB) using other than competitive 
procedures provided--
    (1) The anticipated award price of the contract (including options) 
will not exceed $5 million;
    (2) The requirement is synopsized and the required justification 
pursuant to FAR 6.302-5(c)(2)(ii) is posted in accordance with FAR part 
5;
    (3) The VOSB has been determined to be a responsible contractor 
with respect to performance;
    (4) In the estimation of the contracting officer contract award can 
be made at a fair and reasonable price that offers best value to the 
Government; and
    (5) No responsible SDVOSB has been identified.
    (b) The contracting officer's determination to make a sole source 
award is a business decision wholly within the discretion of the 
contracting officer. To ensure that opportunities are available to the 
broadest number of VOSBs, this authority is to be used only when in the 
best interest of the Government.
    (c) A determination that only one VOSB can meet the requirement is 
not required. However, in accordance with FAR 6.302-5(c)(2)(ii), 
contracts awarded using this authority shall be supported by a written 
justification and approval described in FAR 6.303 and 6.304, as 
applicable.
    (d) When conducting a VOSB sole source acquisition, the contracting 
officer shall ensure the business meets eligibility requirements in 
819.7003.
    (e) A procurement requirement estimated to exceed the legislative 
threshold of $5 million shall not be split or subdivided to permit the 
use of this VOSB sole source authority.


819.7010  Tiered set-aside evaluation.

    (a) Pursuant to the authority of 38 U.S.C. 8127 and under limited 
circumstances as set forth in this section, contracting officers may 
consider using a tiered set-aside evaluation approach to minimize 
delays in the re-solicitation process.
    (b) Tiered evaluation of offers is a procedure that may be used in 
competitive negotiated acquisitions, including construction and 
acquisitions for commercial products and commercial services when the 
VA Rule of Two (see 802.101) determination indicates a set-aside is 
required, but other circumstances preclude a confident conclusion that 
an award can be made at the SDVOSB or VOSB tier. The contracting 
officer--
    (1) Solicits and receives offers from targeted tiers of small 
business groups, with SDVOSB as the first tier and VOSB as the second 
tier;
    (2) Establishes a tiered order of priority for evaluating offers 
that is specified in the solicitation; and
    (3) If no award can be made at the first tier, evaluates offers at 
the next lower tier, until award can be made.
    (c) Market research, which shall be conducted and documented in 
advance of issuing the solicitation, will inform which of the following 
types of tiers will be included in the solicitation:
    (1) Tiered evaluations limited to SDVOSBs or VOSBs;
    (2) Tiered evaluations including 8(a) and HUBZone small businesses; 
or
    (3) Tiered evaluations including all other small business concerns.
    (d) The tiered order of priority shall be consistent with 819.7005. 
Consideration shall be given to HUBZone and 8(a) small business 
concerns before evaluating offers from other small business concerns.


819.7011  Contract clauses.

    (a) The contracting officer shall insert clause 852.219-73, VA 
Notice of Total Set-Aside for Verified Service-Disabled Veteran-Owned 
Small Businesses, or clause 852.219-74, VA Notice of Total Set-Aside 
for Verified Veteran-Owned Small Businesses, as applicable, in 
solicitations, orders and contracts that are set-aside, reserved, 
evaluated or awarded under this subpart. This includes sole source 
awards as well as multiple-award contracts when orders may be set aside 
for SDVOSBs/VOSBs as described in 808.405 and FAR 19.504(c)(1)(ii).
    (b) The contracting officer shall insert the clause at 852.219-75, 
VA Notice of Limitations on Subcontracting--Certificate of Compliance 
for Services and Construction, in solicitations and contracts for 
services and construction, including BPAs, BOAs, and orders, for 
acquisitions that are evaluated, set-aside, or awarded on a sole source 
basis under this subpart. This includes orders awarded under multiple-
award contracts to SDVOSBs/VOSBs.
    (c) The contracting officer shall insert the clause at 852.219-76, 
VA Notice of Limitations on Subcontracting--Certificate of Compliance 
for Supplies and Products, in solicitations and contracts for supplies 
or products, including BPAs, BOAs, and orders, for acquisitions that 
are to be awarded on the basis of an SDVOSB/VOSB set-aside, sole 
source, or an evaluation preference under this subpart. This includes 
orders awarded under multiple-award contracts to SDVOSBs/VOSBs. The 
contracting officer shall tailor clause 852.219-76, and paragraph 
(a)(2)(iii) of the clause, as appropriate.

Subpart 819.71--[Reserved]

PART 832--CONTRACT FINANCING

0
10. Revise the authority citation for part 832 to read as follows:

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

Subpart 832.9 [Removed and Reserved]

0
11. Remove and reserve subpart 832.9.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
12. Revise the authority citation for part 852 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.

[[Page 63011]]

Subpart 852.2--Text of Provisions and Clauses


852.207-70  [Removed and Reserved]

0
13. Remove and reserve section 852.207-70.

0
14. Add Section 852.208-70 to read as follows:


852.208-70   Service-Disabled Veteran-Owned and Veteran-Owned Small 
Business Evaluation Factors--Orders or BPAs.

    As prescribed in 808.405-570, insert the following clause:

Service-Disabled Veteran-Owned and Veteran-Owned Small Business 
Evaluation Factors--Orders or BPAs (Nov 2022)

    (a) In an effort to increase contracting opportunities for 
Veterans, depending on the evaluation factors included in the 
solicitation, VA will evaluate responses received based on the 
schedule Contractor's VIP-verified service-disabled veteran-owned 
small business/veteran-owned small business (SDVOSB/VOSB) status; 
and/or their proposed use of VIP-listed SDVOSB/VOSB as 
subcontractors or teaming partners.
    (b) To receive credit under this clause a contractor or 
subcontractor must be listed, at time of submission of offer/quotes 
and at time of award, as an eligible SDVOSB/VOSB in the Vendor 
Information Pages (VIP) database at https://www.vetbiz.va.gov/vip/.
    (c) A VIP-listed SDVOSB schedule holder will receive full 
credit, and a VIP-listed VOSB schedule holder will receive partial 
credit for the SDVOSB/VOSB status evaluation factor.
    (d) Offerors other than SDVOSBs or VOSBs proposing to use VIP-
listed SDVOSBs/VOSBs as subcontractors/teaming partners, will 
receive some consideration under this evaluation factor. To receive 
consideration, offerors must provide in their proposals:
    (1) The name(s) and contact information of the VIP-listed 
SDVOSB(s)/VOSB(s) with whom they intend to team or subcontract.
    (2) A brief description of the proposed team or subcontractor(s) 
arrangement.
    (3) The approximate dollar value of the proposed teaming 
arrangements or subcontract(s).
    (4) Evidence of teaming partner/subcontractor's VIP database 
registration and verification.
    (e) Pursuant to 38 U.S.C. 8127(g), any business concern that is 
determined by VA to have willfully and intentionally misrepresented 
a company's SDVOSB/VOSB status is subject to debarment for a period 
of not less than five years. This includes the debarment of all 
principals in the business.
(End of clause)

0
15. Add section 852.208-71 to read as follows:


852.208-71   Service-Disabled Veteran-Owned and Veteran-Owned Small 
Business Evaluation Factor Commitments--Orders and BPAs.

    As prescribed in 808.405-570, insert the following clause:

Service-Disabled Veteran-Owned and Veteran-Owned Small Business 
Evaluation Factor Commitments--Orders and BPAs (Nov 2022)

    (a) The Contractor agrees, if selected on the basis of service-
disabled veteran-owned small business (SDVOSB) or veteran-owned 
small business (VOSB) status, to comply with the eligibility 
requirements in subpart 819.70, including the limitation on 
subcontracting requirements at 13 CFR 125.6.
    (b) The Contractor agrees, if selected for award on the basis of 
teaming/subcontracting in accordance with 852.208-70, Service-
Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation 
Factors--Orders and BPAs, to use the evaluated firm(s) as proposed 
or if approved by contracting officer to substitute one or more VIP-
verified SDVOSB/VOSB for work of the same or similar value.
    (c) Pursuant to 38 U.S.C. 8127(g), any business concern that is 
determined by VA to have willfully and intentionally misrepresented 
a company's SDVOSB/VOSB status is subject to debarment for a period 
of not less than five years. This includes the debarment of all 
principals in the business.
(End of clause)


852.219-9,852.219-10, and 852.219-11  [Removed]

0
16. Remove sections 852.219-9, 852.219-10, and 852.219-11.

0
17. Add section 852.219-70 to read as follows:


852.219-70  VA Small Business Subcontracting Plan Minimum Requirements.

    As prescribed in 819.708, insert the following clause:

VA Small Business Subcontracting Plan Minimum Requirements (NOV 2022)

    (a) This clause does not apply to small business concerns.
    (b) If the offeror is required to submit an individual 
subcontracting plan, the minimum goals for award of subcontracts to 
VA verified service-disabled veteran-owned small business and 
veteran-owned small business SDVOSB/VOSB shall be at least 
commensurate with the Department's annual SDVOSB/VOSB subcontracting 
goals.
    (c) For a commercial plan, the minimum goals for award of 
subcontracts to SDVOSB/VOSB shall be at least commensurate with the 
Department's annual service-disabled veteran-owned small business 
and veteran-owned small business subcontracting goals for the total 
value of projected subcontracts to support the sales for the 
commercial plan.
    (d) To be credited toward goal achievements, SDVOSB/VOSBs must 
be verified as eligible in the VA's Vendor Information Pages (VIP) 
database at https://www.vetbiz.va.gov/vip/. A contractor may 
reasonably rely on a subcontractor's status as shown in the VIP 
database as of the date of subcontract award, provided the 
contractor retains records of the results of the VIP database query.
    (e) The Contractor shall annually submit a listing of SDVOSB/
VOSB (for which credit toward goal achievement is to be applied) for 
review by personnel in the Office of Small and Disadvantaged 
Business Utilization. Use VA Form 0896A, Report of Subcontracts to 
Small and Veteran-Owned Business.
    (f) Pursuant to 38 U.S.C. 8127(g), any business concern that is 
determined by VA to have willfully and intentionally misrepresented 
a company's SDVOSB/VOSB status is subject to debarment for a period 
of not less than five years. This includes the debarment of all 
principals in the business.
(End of clause)

0
18. Revise section 852.219-71 to read as follows:


852.219-71   Notification of Competition Limited to Eligible 8(a) 
Participants.

    As prescribed in 819.811-370, when FAR 52.219-18, Notification of 
Competition Limited to Eligible 8(a) Participants, is utilized, use 
this clause in conjunction with the FAR clause.

Notification of Competition Limited to Eligible 8(A) Participants (NOV 
2022)

    Substitute paragraph (c) in FAR Clause 52.219-18 as follows:
    (c) Any award resulting from this solicitation will be made 
directly by the Contracting Officer to the successful 8(a) offeror. 
Although SBA is not identified as such in the award form, SBA is 
still the Prime Contractor. Contractor shall comply with the 
limitations on subcontracting as provided in 13 CFR 125.6 and other 
8(a) program requirements, as set forth in 13 CFR part 124.
(End of clause)

0
19. Revise section 852.219-72 to read as follows:


852.219-72   Notification of Section 8(a) Direct Award.

    As prescribed in 819.811-370, paragraph (a), insert the following 
clause:

Notification of Section 8(a) Direct Award (NOV 2022)

    (a) Offers are solicited only from small business concerns 
expressly certified by the Small Business Administration (SBA) for 
participation in the SBA's 8(a) Program. By submission of its offer, 
the Offeror represents that it is in good standing and that it meets 
all of the criteria for participation in the program in accordance 
with 13 CFR part 124.
    (b) Any award resulting from this solicitation will be made 
directly by the Contracting Officer to the successful 8(a) offeror. 
Although SBA is not identified as such in the award form, SBA is 
still the Prime Contractor.
    (c) This contract is issued as a direct award between the 
contracting activity and the 8(a) Contractor pursuant to the 
Partnership Agreement (PA) between the Small Business Administration 
(SBA) and the Department of Veterans Affairs.
    (d) SBA retains responsibility for 8(a) certification, 8(a) 
eligibility determinations

[[Page 63012]]

and related issues, and providing counseling and assistance to the 
8(a) Contractor under the 8(a) program. The cognizant SBA district 
office is:
-----------------------------------------------------------------------
[To be completed by the Contracting Officer at the time of award]

    (e) The contracting activity is responsible for administering 
the contract and taking any action on behalf of the Government under 
the terms and conditions of the contract. However, the contracting 
activity shall give advance notice to the SBA before it issues a 
final notice terminating performance, either in whole or in part, 
under the contract. The contracting activity shall obtain SBA's 
approval prior to processing any novation agreement(s). The 
contracting activity may assign contract administration functions to 
a contract administration office.
    (f) The Contractor agrees:
    (1) To notify the Contracting Officer, simultaneous with its 
notification to SBA (as required by SBA's 8(a) regulations), when 
the owner or owners upon whom 8(a) eligibility is based plan to 
relinquish ownership or control of the concern.
    (2) Consistent with 15 U.S.C. 637(a)(21), transfer of ownership 
or control shall result in termination of the contract for 
convenience, unless SBA waives the requirement for termination prior 
to the actual relinquishing of ownership and control.
    (3) It will adhere to the requirements of 52.219-14, Limitations 
of Subcontracting and other requirements in 13 CFR part 124 and 13 
CFR 125.6, as applicable
    (g) Any proposed joint venture involving an 8(a) Participant 
must be approved by SBA before contracts are awarded.
(End of clause)

0
20. Add section 852.219-73 to read as follows:


852.219-73  VA Notice of Total Set-Aside for Verified Service-Disabled 
Veteran-Owned Small Businesses.

    As prescribed in 819.7011, insert the following clause:

VA Notice Of Total set-Aside For Verified Service-Disabled Veteran-
Owned Small Businesses (NOV 2022)

    (a) Definition. for the Department of Veterans Affairs, 
``Service-disabled Veteran-owned small business concern or SDVOSB'':
    (1) Means a small business concern--
    (i) Not less than 51 percent of which is owned by one or more 
service-disabled Veterans or, in the case of any publicly owned 
business, not less than 51 percent of the stock of which is owned by 
one or more service-disabled Veterans or eligible surviving spouses 
(see VAAR 802.201, Surviving Spouse definition);
    (ii) The management and daily business operations of which are 
controlled by one or more service-disabled Veterans (or eligible 
surviving spouses) or, in the case of a service-disabled Veteran 
with permanent and severe disability, the spouse or permanent 
caregiver of such Veteran;
    (iii) The business meets Federal small business size standards 
for the applicable North American Industry Classification System 
(NAICS) code identified in the solicitation document;
    (iv) The business has been verified for ownership and control 
pursuant to 38 CFR part 74 and is listed in VA's Vendor Information 
Pages (VIP) database at https://www.vetbiz.va.gov/vip/; and
    (v) The business will comply with VAAR subpart 819.70 and Small 
Business Administration (SBA) regulations regarding small business 
size and government contracting programs at 13 CFR parts 121 and 
125, provided that any reference therein to a service-disabled 
veteran-owned small business concern or SDVO SBC, is to be construed 
to apply to a VA verified and VIP-listed SDVOSB, unless otherwise 
stated in this clause.
    (2) The term ``Service-disabled Veteran'' means a Veteran, as 
defined in 38 U.S.C. 101(2), with a disability that is service-
connected, as defined in 38 U.S.C. 101(16).
    (3) The term ``small business concern'' has the meaning given 
that term under section 3 of the Small Business Act (15 U.S.C. 632).
    (4) The term ``small business concern owned and controlled by 
Veterans with service-connected disabilities'' has the meaning given 
the term ``small business concern owned and controlled by service-
disabled veterans'' under section 3(q)(2) of the Small Business Act 
(15 U.S.C. 632(q)(2)), except that for a VA contract the firm must 
be listed in the VIP database (see paragraph (a)(1)(iv) of this 
clause).
    (b) General. (1) Offers are solicited only from VIP-listed 
SDVOSBs. Offers received from entities that are not VIP-listed 
SDVOSBs at the time of offer shall not be considered.
    (2) Any award resulting from this solicitation shall be made to 
a VIP-listed SDVOSB who is eligible at the time of submission of 
offer(s) and at the time of award.
    (3) The requirements in this clause apply to any contract, order 
or subcontract where the firm receives a benefit or preference from 
its designation as an SDVOSB, including set-asides, sole source 
awards, and evaluation preferences.
    (c) Representation. Pursuant to 38 U.S.C. 8127(e), only VIP-
listed SDVOSBs are considered eligible to receive award of a 
resulting contract. By submitting an offer, the prospective 
contractor represents that it is an eligible SDVOSB as defined in 
this clause, 38 CFR part 74, and VAAR subpart 819.70.
    (d) Agreement. When awarded a contract action, including orders 
under multiple-award contracts, an SDVOSB agrees that in the 
performance of the contract, the SDVOSB shall comply with 
requirements in VAAR subpart 819.70 and SBA regulations on small 
business size and government contracting programs at 13 CFR part 121 
and part 125, including the non-manufacturer rule and limitations on 
subcontracting requirements in 13 CFR 121.406(b) and 13 CFR 125.6. 
Unless otherwise stated in this clause, a requirement in 13 CFR 
parts 121 and 125 that applies to an SDVO SBC, is to be construed to 
also apply to a VIP-listed SDVOSB. For the purpose of limitations on 
subcontracting, only VIP-listed SDVOSBs (including independent 
contractors) shall be considered eligible and/or ``similarly 
situated'' (i.e., a firm that has the same small business program 
status as the prime contractor). An otherwise eligible firm further 
agrees to comply with the required certification requirements in 
this solicitation (see 852.219-75 or 852.219-76 as applicable). 
These requirements are summarized as follows:
    (1) Services. In the case of a contract for services (except 
construction), the SDVOSB prime contractor will not pay more than 
50% of the amount paid by the government to the prime for contract 
performance to firms that are not VIP-listed SDVOSBs (excluding 
direct costs to the extent they are not the principal purpose of the 
acquisition and the SDVOSB/VOSB does not provide the service, such 
as airline travel, cloud computing services, or mass media 
purchases). When a contract includes both services and supplies, the 
50 percent limitation shall apply only to the service portion of the 
contract
    (2) Supplies/products. (i) In the case of a contract for 
supplies or products (other than from a non-manufacturer of such 
supplies), the SDVOSB prime contractor will not pay more than 50% of 
the amount paid by the government to the prime for contract 
performance, excluding the cost of materials, to firms that are not 
VIP-listed SDVOSBs. When a contract includes both supply and 
services, the 50 percent limitation shall apply only to the supply 
portion of the contract.
    (ii) In the case of a contract for supplies from a non-
manufacturer, the SDVOSB prime contractor will supply the product of 
a domestic small business manufacturer or processor, unless a waiver 
as described in 13 CFR 121.406(b)(5) has been granted. Refer to 13 
CRF 125.6(a)(2)(ii) for guidance pertaining to multiple item 
procurements.
    (3) General construction. In the case of a contract for general 
construction, the SDVOSB prime contractor will not pay more than 85% 
of the amount paid by the government to the prime for contract 
performance, excluding the cost of materials, to firms that are not 
VIP-listed SDVOSBs.
    (4) Special trade construction contractors. In the case of a 
contract for special trade contractors, no more than 75% of the 
amount paid by the government to the prime for contract performance, 
excluding the cost of materials, may be paid to firms that are not 
VIP-listed SDVOSBs.
    (5) Subcontracting. An SDVOSB must meet the NAICS size standard 
assigned by the prime contractor and be listed in VIP to count as 
similarly situated. Any work that a first tier VIP-listed SDVOSB 
subcontractor further subcontracts will count towards the percent of 
subcontract amount that cannot be exceeded. For supply or 
construction contracts, the cost of materials is excluded and not 
considered to be subcontracted. When a contract includes both 
services and supplies, the 50 percent limitation shall apply only to 
the portion of the contract with the preponderance of the 
expenditure upon which the assigned NAICS is based. For information 
and more specific requirements, refer to 13 CFR 125.6.
    (e) Required limitations on subcontracting compliance 
measurement period. An SDVOSB shall comply with the limitations on 
subcontracting as follows:


[[Page 63013]]


[Contracting Officer check as appropriate.]

    __By the end of the base term of the contract or order, and then 
by the end of each subsequent option period; or
    __By the end of the performance period for each order issued 
under the contract.
    (f) Joint ventures. A joint venture may be considered eligible 
as an SDVOSB if the joint venture is listed in VIP and complies with 
the requirements in 13 CFR 125.18(b), provided that any requirement 
therein that applies to an SDVO SBC is to be construed to apply to a 
VIP-listed SDVOSB. A joint venture agrees that, in the performance 
of the contract, the applicable percentage specified in paragraph 
(d) of this clause will be performed by the aggregate of the joint 
venture participants.
    (g) Precedence. The VA Veterans First Contracting Program, as 
defined in VAAR 802.101, subpart 819.70, and this clause, takes 
precedence over any inconsistencies between the requirements of the 
SBA Program for SDVO SBCs, and the VA Veterans First Contracting 
Program.
    (h) Misrepresentation. Pursuant to 38 U.S.C. 8127(g), any 
business concern, including all its principals, that is determined 
by VA to have willfully and intentionally misrepresented a company's 
SDVOSB status is subject to debarment from contracting with the 
Department for a period of not less than five years (see VAAR 
809.406-2 Causes for Debarment).
(End of clause)

0
21. Add section 852.219-74 to read as follows:


852.219-74  VA Notice of Total Set-Aside for Verified Veteran-Owned 
Small Businesses.

    As prescribed in 819.7011, insert the following clause:

VA Notice of Total Set-Aside for Verified Veteran-Owned Small 
Businesses (NOV 2022)

    (a) Definition. For the Department of Veterans Affairs, 
``Veteran-owned small business or VOSB'':
    (1) Means a small business concern--
    (i) Not less than 51 percent of which is owned by one or more 
Veterans or, in the case of any publicly owned business, not less 
than 51 percent of the stock of which is owned by one or more 
Veteran(s);
    (ii) The management and daily business operations of which are 
controlled by one or more Veteran(s);
    (iii) The business meets Federal small business size standards 
for the applicable North American Industry Classification System 
(NAICS) code identified in the solicitation document;
    (iv) The business has been verified for ownership and control 
pursuant to 38 CFR part 74 and is listed in VA's Vendor Information 
Pages (VIP) database at: https://www.vetbiz.va.gov/vip/; and
    (v) The business will comply with VAAR subpart 819.70 and Small 
Business Administration (SBA) regulations regarding small business 
size and government contracting programs at 13 CFR parts 121 and 
125, provided that any requirement therein that applies to a 
service-disabled veteran-owned small business concern or SDVO SBC, 
is to be construed to also apply to a VA verified and VIP-listed 
VOSB, unless otherwise stated in this clause.
    (vi) The term VOSB includes VIP-listed service-disabled veteran-
owned small businesses (SDVOSB).
    (2) ``Veteran'' is defined in 38 U.S.C. 101(2).
    (3) The term ``small business concern'' has the meaning given 
that term under section 3 of the Small Business Act (15 U.S.C. 632).
    (4) The term ``small business concern owned and controlled by 
Veterans'' has the meaning given that term under section 3(q)(3) of 
the Small Business Act (15 U.S.C. 632(q)(3)), except that for a VA 
contract the firm must be listed in the VIP database (see paragraph 
(a)(1)(iv) of this clause).
    (b) General. (1) Offers are solicited only from VIP-listed 
VOSBs, including VIP-listed SDVOSBs. Offers received from entities 
that are not VIP-listed at the time of offer shall not be 
considered.
    (2) Any award resulting from this solicitation shall be made 
only to a VIP-listed VOSB who is eligible at the time of submission 
of offer(s) and at time of award.
    (3) The requirements in this clause apply to any contract, order 
or subcontract where the firm receives a benefit or preference from 
its designation as a VOSB, including set-asides, sole source awards, 
and evaluation preferences.
    (c) Representation. Pursuant to 38 U.S.C. 8127(e), only VIP-
listed VOSBs are considered eligible to receive award of a resulting 
contract. By submitting an offer, the prospective contractor 
represents that it is an eligible VOSB as defined in this clause, 38 
CFR part 74, and VAAR subpart 819.70.
    (d) Agreement. When awarded a contract action, including orders 
under multiple-award contracts, a VOSB agrees that in the 
performance of the contract, the VOSB shall comply with requirements 
in VAAR subpart 819.70 and SBA regulations on small business size 
and government contracting programs at 13 CFR parts 121 and 125, 
including the non-manufacturer rule and limitations on-
subcontracting requirements in 13 CFR 121.406(b) and 125.6. Unless 
otherwise stated in this clause, any requirement in 13 CFR parts 121 
and 125 that applies to an SDVO SBC, is to be construed to also 
apply to a VIP-listed VOSB. For the purpose of the limitations on 
subcontracting, only VIP-listed VOSB, (including independent 
contractors) is considered eligible and/or ``similarly situated'' 
(i.e., a firm that has the same small business program status as the 
prime contractor). An otherwise eligible firm further agrees to 
comply with the required certification requirements in this 
solicitation (see 852.219-75 and/or 852.219-76 as applicable). These 
requirements are summarized as follows:
    (1) Services. In the case of a contract for services (except 
construction), the VOSB prime contractor will not pay more than 50% 
of the amount paid by the government to the prime for contract 
performance to firms that are not VIP-listed VOSBs (excluding direct 
costs to the extent they are not the principal purpose of the 
acquisition and the SDVOSB/VOSB does not provide the service, such 
as airline travel, cloud computing services, or mass media 
purchases). When a contract includes both services and supplies, the 
50 percent limitation shall apply only to the service portion of the 
contract.
    (2) Supplies/products. (i) In the case of a contract for 
supplies or products (other than from a non-manufacturer of such 
supplies), the VOSB prime contractor will not pay more than 50% of 
the amount paid by the government to the prime for contract 
performance, excluding the cost of materials, to firms that are not 
VIP-listed VOSBs. When a contract includes both supply and services, 
the 50 percent limitation shall apply only to the supply portion of 
the contract.
    (ii) In the case of a contract for supplies from a non-
manufacturer, the VOSB prime contractor will supply the product of a 
domestic small business manufacturer or processor, unless a waiver 
as described in 13 CFR 121.406(b)(5) has been granted. Refer to 13 
CFR 125.6(a)(2)(ii) for guidance pertaining to multiple item 
procurements.
    (3) General construction. In the case of a contract for general 
construction, the VOSB prime contractor will not pay more than 85% 
of the amount paid by the government to the prime for contract 
performance, excluding the cost of materials, to firms that are not 
VIP-listed VOSBs.
    (4) Special trade construction contractors. In the case of a 
contract for special trade contractors, no more than 75% of the 
amount paid by the government to the prime for contract performance, 
excluding the cost of materials, may be paid to firms that are not 
VIP-listed VOSBs.
    (5) Subcontracting. A VOSB must meet the NAICS size standard 
assigned by the prime contractor and be listed in VIP to count as 
similarly situated. Any work that a first tier VIP-listed VOSB 
subcontractor further subcontracts will count towards the percent of 
subcontract amount that cannot be exceeded. For supply or 
construction contracts, the cost of materials is excluded and not 
considered to be subcontracted. When a contract includes both 
services and supplies, the 50 percent limitation shall apply only to 
the portion of the contract with the preponderance of the 
expenditure upon which the assigned NAICS is based. For information 
and more specific requirements, refer to 13 CFR 125.6.
    (e) Required limitations on subcontracting compliance 
measurement period. A VOSB shall comply with the limitations on 
subcontracting as follows:

[Contracting Officer check as appropriate.]

    __By the end of the base term of the contract or order, and then 
by the end of each subsequent option period; or
    __By the end of the performance period for each order issued 
under the contract.
    (f) Joint ventures. A joint venture may be considered eligible 
as a VOSB if the joint venture is listed in VIP and complies with 
the requirements in 13 CFR 125.18(b), provided that any requirement 
therein that applies to an SDVO SBC is to be construed to also apply 
to a VIP-listed VOSB. A joint venture agrees that, in the 
performance of the

[[Page 63014]]

contract, the applicable percentage specified in paragraph (d) of 
this clause will be performed by the aggregate of the joint venture 
participants.
    (g) Precedence. The VA Veterans First Contracting Program, as 
defined in VAAR 802.10, subpart 819.70, and this clause, takes 
precedence over any inconsistencies between the requirements of the 
SBA Program for SDVO SBCs and the VA Veterans First Contracting 
Program.
    (h) Misrepresentation. Pursuant to 38 U.S.C. 8127(g), any 
business concern, including all its principals, that is determined 
by VA to have willfully and intentionally misrepresented a company's 
VOSB status is subject to debarment from contracting with the 
Department for a period of not less than five years (see VAAR 
809.406-2, Causes for Debarment).

(End of clause)

0
22. Add section 852.219-75 to read as follows:


852.219-75   VA Notice of Limitations on Subcontracting--Certificate of 
Compliance for Services and Construction.

    As prescribed in 819.7011(b), insert the following clause:

VA Notice of Limitations on Subcontracting--Certificate of Compliance 
for Services and Construction (NOV 2022)

    (a) Pursuant to 38 U.S.C. 8127(k)(2), the offeror certifies 
that--
    (1) If awarded a contract (see FAR 2.101 definition), it will 
comply with the limitations on subcontracting requirement as 
provided in the solicitation and the resultant contract, as follows: 
[Contracting Officer check the appropriate box below based on the 
predominant NAICS code assigned to the instant acquisition as set 
forth in FAR 19.102.]
    (i) [square] Services. In the case of a contract for services 
(except construction), the contractor will not pay more than 50% of 
the amount paid by the government to it to firms that are not VIP-
listed SDVOSBs as set forth in 852.219-73 or VOSBs as set forth in 
852.219-74. Any work that a similarly situated VIP-listed 
subcontractor further subcontracts will count towards the 50% 
subcontract amount that cannot be exceeded. Other direct costs may 
be excluded to the extent they are not the principal purpose of the 
acquisition and small business concerns do not provide the service 
as set forth in 13 CFR 125.6.
    (ii) [square] General construction. In the case of a contract 
for general construction, the contractor will not pay more than 85% 
of the amount paid by the government to it to firms that are not 
VIP-listed SDVOSBs as set forth in 852.219-73or VOSBs as set forth 
in 852.219-74. Any work that a similarly situated VIP-listed 
subcontractor further subcontracts will count towards the 85% 
subcontract amount that cannot be exceeded. Cost of materials are 
excluded and not considered to be subcontracted.
    (iii) [square] Special trade construction contractors. In the 
case of a contract for special trade contractors, the contractor 
will not pay more than 75% of the amount paid by the government to 
it to firms that are not VIP-listed SDVOSBs as set forth in 852.219-
73 or VOSBs as set forth in 852.219-74. Any work that a similarly 
situated subcontractor further subcontracts will count towards the 
75% subcontract amount that cannot be exceeded. Cost of materials 
are excluded and not considered to be subcontracted.
    (2) The offeror acknowledges that this certification concerns a 
matter within the jurisdiction of an Agency of the United States. 
The offeror further acknowledges that this certification is subject 
to Title 18, United States Code, Section 1001, and, as such, a 
false, fictitious, or fraudulent certification may render the 
offeror subject to criminal, civil, or administrative penalties, 
including prosecution.
    (3) If VA determines that an SDVOSB/VOSB awarded a contract 
pursuant to 38 U.S.C. 8127 did not act in good faith, such SDVOSB/
VOSB shall be subject to any or all of the following:
    (i) Referral to the VA Suspension and Debarment Committee;
    (ii) A fine under section 16(g)(1) of the Small Business Act (15 
U.S.C. 645(g)(1)); and
    (iii) Prosecution for violating section 1001 of title 18.
    (b) The offeror represents and understands that by submission of 
its offer and award of a contract it may be required to provide 
copies of documents or records to VA that VA may review to determine 
whether the offeror complied with the limitations on subcontracting 
requirement specified in the contract. Contracting officers may, at 
their discretion, require the contractor to demonstrate its 
compliance with the limitations on subcontracting at any time during 
performance and upon completion of a contract if the information 
regarding such compliance is not already available to the 
contracting officer. Evidence of compliance includes, but is not 
limited to, invoices, copies of subcontracts, or a list of the value 
of tasks performed.
    (c) The offeror further agrees to cooperate fully and make 
available any documents or records as may be required to enable VA 
to determine compliance with the limitations on subcontracting 
requirement. The offeror understands that failure to provide 
documents as requested by VA may result in remedial action as the 
Government deems appropriate.
    (d) Offeror completed certification/fill-in required. The formal 
certification must be completed, signed and returned with the 
offeror's bid, quotation, or proposal. The Government will not 
consider offers for award from offerors that do not provide the 
certification, and all such responses will be deemed ineligible for 
evaluation and award.

Certification

    I hereby certify that if awarded the contract, [insert name of 
offeror] will comply with the limitations on subcontracting 
specified in this clause and in the resultant contract. I further 
certify that I am authorized to execute this certification on behalf 
of [insert name of offeror].

Printed Name of Signee:------------------------------------------------

Printed Title of Signee:-----------------------------------------------

Signature:-------------------------------------------------------------

Date:------------------------------------------------------------------

Company Name and Address:----------------------------------------------

(End of clause)

0
23. Add section 852.219-76 to read as follows:


852.219-76   VA Notice of Limitations on Subcontracting--Certificate of 
Compliance for Supplies and Products.

    As prescribed in 819.7011(c), insert the following clause. The 
contracting officer shall tailor the clause in paragraph (a)(2)(iii) as 
appropriate:

VA Notice of Limitations on Subcontracting--Certificate of Compliance 
for Supplies and Products (NOV 2022)

    (a) Pursuant to 38 U.S.C. 8127(k)(2), the offeror certifies 
that--
    (1) If awarded a contract (see FAR 2.101 definition), it will 
comply with the limitations on subcontracting requirement as 
provided in the solicitation and the resultant contract, as follows: 
[Offeror check the appropriate box]
    (i) [square] In the case of a contract for supplies or products 
(other than from a non-manufacturer of such supplies), it will not 
pay more than 50% of the amount paid by the government to it to 
firms that are not VIP-listed SDVOSBs as set forth in 852.219-73 or 
VOSBs as set forth in 852.219-74. Any work that a similarly situated 
VIP-listed subcontractor further subcontracts will count towards the 
50% subcontract amount that cannot be exceeded. Cost of materials 
are excluded and not considered to be subcontracted.
    (ii) [square] In the case of a contract for supplies from a 
nonmanufacturer, it will supply the product of a domestic small 
business manufacturer or processor, unless a waiver as described in 
13 CFR 121.406(b)(5) is granted. The offeror understands that, as 
provided in 13 CFR 121.406(b)(7), such a waiver has no effect on 
requirements external to the Small Business Act, such as the Buy 
American Act or the Trade Agreements Act.
    (2) Manufacturer or nonmanufacturer representation and 
certification. [Offeror fill-in--check each applicable box below. 
The offeror must select the applicable provision below, identifying 
itself as either a manufacturer or nonmanufacturer]:
    (i) [square] Manufacturer or producer. The offeror certifies 
that it is the manufacturer or producer of the end item being 
procured, and the end item is manufactured or produced in the United 
States, in accordance with paragraph (a)(1)(i).
    (ii) [square] Nonmanufacturer. The offeror certifies that it 
qualifies as a nonmanufacturer in accordance with the requirements 
of 13 CFR 121.406(b) and paragraph (a)(1)(ii). The offeror further 
certifies it meets each element below as required in order to 
qualify as a nonmanufacturer. [Offeror fill-in--check each box 
below.]
    [square] The offeror certifies that it does not exceed 500 
employees (or 150 employees for the Information Technology Value 
Added Reseller exception to NAICS code 541519, which is found at 13 
CFR 121.201, footnote 18).

[[Page 63015]]

    [square] The offeror certifies that it is primarily engaged in 
the retail or wholesale trade and normally sells the type of item 
being supplied.
    [square] The offeror certifies that it will take ownership or 
possession of the item(s) with its personnel, equipment, or 
facilities in a manner consistent with industry practice.
    (iii) [square] The offeror certifies that it will supply the end 
item of a small business manufacturer, processor, or producer made 
in the United States, unless a waiver as provided in 13 CFR 
121.406(b)(5) has been issued by SBA. [Contracting Officer fill-in 
or removal (see 13 CFR 121.1205). This requirement must be included 
for a single end item. However, if SBA has issued an applicable 
waiver of the nonmanufacturer rule for the end item, this 
requirement must be removed in the final solicitation or contract.]
    or [Contracting officer tailor clause to remove one or other 
block under subparagraph (iii).]
    [square] If this is a multiple item acquisition, the offeror 
certifies that at least 50% of the estimated contract value is 
composed of items that are manufactured by small business concerns. 
[Contracting Officer fill-in or removal. See 13 CFR 121.406(d) for 
multiple end items. If SBA has issued an applicable nonmanufacturer 
rule waiver, this requirement must be removed in the final 
solicitation or contract.]
    (3) The offeror acknowledges that this certification concerns a 
matter within the jurisdiction of an Agency of the United States. 
The offeror further acknowledges that this certification is subject 
to Title 18, United States Code, Section 1001, and, as such, a 
false, fictitious, or fraudulent certification may render the 
offeror subject to criminal, civil, or administrative penalties, 
including prosecution.
    (4) If VA determines that an SDVOSB/VOSB awarded a contract 
pursuant to 38 U.S.C. 8127 did not act in good faith, such SDVOSB/
VOSB shall be subject to any or all of the following:
    (i) Referral to the VA Suspension and Debarment Committee;
    (ii) A fine under section 16(g)(1) of the Small Business Act (15 
U.S.C. 645(g)(1)); and
    (iii) Prosecution for violating section 1001 of title 18.
    (b) The offeror represents and understands that by submission of 
its offer and award of a contract it may be required to provide 
copies of documents or records to VA that VA may review to determine 
whether the offeror complied with the limitations on subcontracting 
requirement specified in the contract or to determine whether the 
offeror qualifies as a manufacturer or nonmanufacturer in compliance 
with the limitations on subcontracting requirement. Contracting 
officers may, at their discretion, require the contractor to 
demonstrate its compliance with the limitations on subcontracting at 
any time during performance and upon completion of a contract if the 
information regarding such compliance is not already available to 
the contracting officer. Evidence of compliance includes, but is not 
limited to, invoices, copies of subcontracts, or a list of the value 
of tasks performed.
    (c) The offeror further agrees to cooperate fully and make 
available any documents or records as may be required to enable VA 
to determine compliance. The offeror understands that failure to 
provide documents as requested by VA may result in remedial action 
as the Government deems appropriate.
    (d) Offeror completed certification/fill-in required. The formal 
certification must be completed, signed and returned with the 
offeror's bid, quotation, or proposal. The Government will not 
consider offers for award from offerors that do not provide the 
certification, and all such responses will be deemed ineligible for 
evaluation and award.

Certification

    I hereby certify that if awarded the contract, [insert name of 
offeror] will comply with the limitations on subcontracting 
specified in this clause and in the resultant contract. I further 
certify that I am authorized to execute this certification on behalf 
of [insert name of offeror].

Printed Name of Signee:------------------------------------------------

Printed Title of Signee:-----------------------------------------------

Signature:-------------------------------------------------------------

Date:------------------------------------------------------------------

Company Name and Address:----------------------------------------------

-----------------------------------------------------------------------
(End of clause)

PART 853--FORMS

0
24. The authority citation for part 853 continues to read as follows:

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

Subpart 853.2--Prescription of Forms

0
25. Add section 853.219 to read as follows:


853.219  Small business forms.

    (a) VA Form 2268, Small Business Program and Contract Bundling 
Review. VA Form 2268 is prescribed for use to document actions and 
recommendations related to small business, as specified in 819.202.
    (b) VA Form 0896A, Report of Subcontracts to Small and Veteran-
Owned Businesses. VA Form 0896A is prescribed for use to submit 
subcontracting information, as specified in 819.704-70.
    (c) Availability. Forms are available at https://www.va.gov/vaforms.

[FR Doc. 2022-21541 Filed 10-17-22; 8:45 am]
BILLING CODE 8320-01-P