[Federal Register Volume 85, Number 76 (Monday, April 20, 2020)]
[Proposed Rules]
[Pages 21811-21820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07799]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 802, 809, 841, 842, and 852
RIN 2900-AQ38
VA Acquisition Regulation: Contractor Qualifications; Acquisition
of Utility Services; and Contract Administration and Audit Services
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
and update its VA Acquisition Regulation (VAAR) in phased increments to
revise or remove any policy superseded by changes in the Federal
Acquisition Regulation (FAR), to remove any procedural guidance
internal to VA into the VA Acquisition Manual (VAAM), and to
incorporate any new agency specific regulations or policies. These
changes seek to streamline and align the VAAR with the FAR and remove
outdated and duplicative requirements and reduce burden on contractors.
The VAAM incorporates portions of the removed VAAR as well as other
internal agency acquisition policy. VA will rewrite certain parts of
the VAAR and VAAM, and as VAAR parts are rewritten, will publish them
in the Federal Register. VA will combine related topics, as
appropriate. This rulemaking revises VAAR coverage concerning
Contractor Qualifications, Acquisition of Utility Services, and
Contract Administration and Audit Services, as well as affected parts
concerning Definitions of Words and Terms and Solicitation Provisions
and Contract Clauses.
DATES: Comments must be received on or before June 19, 2020 to be
considered in the formulation of the final rule.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to Director, Office of
Regulation Policy and Management (00REG), Department of Veterans
Affairs, 810
[[Page 21812]]
Vermont Avenue NW, Room 1064, Washington, DC 20420; or by fax to (202)
273-9026. Comments should indicate that they are submitted in response
to ``RIN 2900-AQ38--VA Acquisition Regulation: Contractor
Qualifications; Acquisition of Utility Services; and Contract
Administration and Audit Services.'' Copies of comments received will
be available for public inspection in the Office of Regulation Policy
and Management, Room 1064, between the hours of 8:00 a.m. and 4:30
p.m., Monday through Friday (except holidays). Please call (202) 461-
4902 for an appointment. (This is not a toll-free number.) In addition,
during the comment period, comments may be viewed online through the
Federal Docket Management System (FDMS) at www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr. Rafael Taylor, Senior Procurement
Analyst, Procurement Policy and Warrant Management Services, 003A2A,
425 I Street NW, Washington, DC 20001, (202) 382-2787. (This is not a
toll-free number.)
SUPPLEMENTARY INFORMATION:
Background
This rulemaking is issued under the authority of the Office of
Federal Procurement Policy (OFPP) Act which provides the authority for
an agency head to issue agency acquisition regulations that implement
or supplement the FAR.
VA is proposing to revise the VAAR to add new policy or regulatory
requirements and to remove any redundant guidance and guidance that is
applicable only to VA's internal operating processes or procedures.
Codified acquisition regulations may be amended and revised only
through rulemaking. All amendments, revisions and removals have been
reviewed and concurred with by VA's Integrated Product Team of agency
stakeholders.
The VAAR uses the regulatory structure and arrangement of the FAR
and headings and subject areas are consistent with FAR content. The
VAAR is divided into subchapters, parts (each of which covers a
separate aspect of acquisition), subparts, and sections.
The Office of Federal Procurement Policy Act, as codified in 41
U.S.C. 1707, provides the authority for the Federal Acquisition
Regulation and for the issuance of agency acquisition regulations
consistent with the FAR.
When Federal agencies acquire supplies and services using
appropriated funds, the purchase is governed by the FAR, set forth at
Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through
53, and the agency regulations that implement and supplement the FAR.
The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873.
Discussion and Analysis
VA proposes to make the following changes to the VAAR in this phase
of its revision and streamlining initiative. For procedural guidance
cited below that is proposed to be deleted from the VAAR, each section
cited for removal has been considered for inclusion in VA's internal
agency operating procedures in accordance with FAR 1.301(a)(2).
Similarly, delegations of authority that are removed from the VAAR will
be included in the VAAM as internal departmental guidance. The VAAM is
being created in parallel with these revisions to the VAAR and is not
subject to the rulemaking process as they are internal VA procedures
and guidance. The VAAM will not be finalized until corresponding VAAR
parts are finalized, and therefore the VAAM is not yet available
online.
VAAR Part 802--Definitions of Words and Terms
Under part 802, we propose to amend Section 802.101 to remove
definitions of ``Suspending and Debarring Official (SDO)'' and
``Suspension and Debarment Committee (S&D Committee).''
VAAR Part 809--Contractor Qualifications
Under part 809, Contractor Qualifications, we propose to add the
authority citation for 41 U.S.C. 1702 which addresses the acquisition
planning and management responsibilities of Chief Acquisition Officers
and Senior Procurement Executives, to include implementation of unique
procurement policies, regulations and standards of the executive
agency.
We propose to revise the authority citation of 40 U.S.C. 121 to
remove the reference to paragraph (d), as paragraph (c) which will be
retained comports with FAR and VAAR standard usage and reference to
paragraph (d) is unnecessary. The authorities cited for this part are
38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR
1.301-1.304.
In subpart 809.1, Responsible Prospective Contractors, we propose
to delete 809.104, Standards (no text), and 809.104-2, Special
standards, as it includes internal VA procedural guidance and will be
moved to the VAAM.
We propose to delete subpart 809.2, Qualifications Requirements, as
the policy and procedures relating to the establishment of
qualification requirements are no longer being used by VA and have been
deemed unnecessary. As a result of this change, 809.202, Policy, which
designated the HCA as the authority for establishing a qualification
requirement in accordance with FAR 9.202(a)(1) is also being removed.
This rulemaking also proposes to remove 809.206, Acquisitions
subject to qualification requirements, which contained no text. We also
propose to remove 809.206-1, General, consisting of one sentence that
provided that HCAs may determine that an emergency exists as provided
by FAR 9.206-1(b); and 809.270, Qualified products for convenience/
labor-saving foods, which provided internal guidance to Veterans
Integrated Service Networks. All of the sections are being deleted as
the Department is no longer using Qualified Product Lists.
We propose to revise subpart 809.4, Debarment, Suspension, and
Ineligibility. In section 809.400, Scope of subpart, we propose to
clarify that the policy supplements the FAR coverage under FAR subpart
9.4 and prescribes VA's procedures for the suspension and debarment of
contractors. We propose to revise 809.402, Policy, which would
establish that when VA is considering a debarment or suspension action,
the Suspension and Debarment (S&D) Committee shall coordinate the
action with the Interagency Committee on Debarment and Suspension in
order to identify other agencies with an interest in the action, and to
identify the agency that will take the lead on the action.
We propose to add 809.403, Definitions. This section would define
the terms that are used through subpart 809.4, Debarment, Suspension,
and Ineligibility, including the S&D Committee and the Suspending and
Debarring Official (SDO).
We propose to remove 809.404, Excluded Parties List System, as this
system has been replaced by the System for Award Management (SAM) and
the FAR has sufficient coverage in this area.
We propose to revise 809.405, Effect of listing, to state that the
authority to determine whether to solicit from, evaluate bids or
proposals from, or award contracts to contractors with active
exclusions in SAM is delegated to the Suspending and Debarring Official
(SDO). The revised section also establishes that this authority is
further delegated to the head of the contracting activity (HCA) or
their designee. We propose to revise 809.405-1,
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Continuation of current contracts, and 809.405-2, Restrictions on
subcontracting, to delegate the authority to the SDO, who further
delegates the authority to the HCA or designee to make the
determinations described under these sections.
Under 809.406, Debarment, we propose to revise 809.406-1, General,
to delegate to the SDO the authority to determine whether to continue
business dealings between VA and a contractor suspended, proposed for
debarment, or debarred.
In 809.406-2, Causes for debarment, we propose to revise the title
to comport with the FAR and to remove the existing language and reflect
no text. The coverage would be moved to a new section that follows. We
propose to add new section 809.406-270, Additional causes for
debarment, to reflect VA's program that would conform with the
governing statute 38 U.S.C. 8127(g), Enforcement Penalties for
Misrepresentation, to state that any business concern that has
willfully and intentionally misrepresented the status of that concern
as a small business concern owned and controlled by veterans or as a
small business concern owned and controlled by service-disabled
veterans pursuant to this section shall be debarred for no less than 5
years. It would also provide a definition for ``willful and
intentional'' misrepresentations for the purposes of debarment actions
taken pursuant to 38 U.S.C. 8127(g).
We propose to revise 809.406-3, Procedures, to provide to the
public the updated procedures for debarments and to provide the
responsibilities of the SDO and Suspension and Debarment (S&D)
Committee. This section apprises contractors of their rights when they
have been notified of their proposed debarment.
We propose to revise 809.406-4, Period of debarment, to inform
prospective vendors that the period of debarment for willful and
intentional misrepresentations of SDVOSB or VOSB status pursuant to
809.406-270(b) shall not be less than 5 years.
Under 809.407, Suspension, we propose to revise 809.407-1, General,
to reflect that the authority to determine whether to continue to
contract with a suspended contractor has been delegated to the HCAs. We
propose to revise 809.407-3, Procedures, to apprise contractors of
their rights when they have been notified of their proposed suspension.
It has been revised to reflect the updated procedures. We propose to
revise section 809.470, Fact-finding procedures, to inform the
contractor or individual that they may submit documentary evidence,
present witnesses, and confront any person the agency presents in the
case of a suspension or debarment.
We propose to delete 809.503, Waiver, and move it to the VAAM as it
provides internal procedural guidance. We propose to delete 809.504,
Contracting officer responsibilities, and move it to the VAAM as it
provides procedural guidance to VA's contracting officers.
We propose to revise section 809.507-1, Solicitation provision, to
correctly identify 852.209-70 as a provision that must be included in
any solicitation for the contracts outlined in FAR 9.502 which might
have the potential for conflicts of interest. It was previously
incorrectly referred to as a clause.
VAAR Part 841--Acquisition of Utility Services
Under part 841, Acquisition of Utility Services, we propose to add
the authority citation for 41 U.S.C. 1702 which addresses the
acquisition planning and management responsibilities of Chief
Acquisition Officers and Senior Procurement Executives, to include
implementation of unique procurement policies, regulations and
standards of the executive agency.
We propose to revise the authority citation of 40 U.S.C. 121, to
remove the reference to paragraph (d), as paragraph (c) which will be
retained comports with FAR and VAAR standard usage and reference to
paragraph (d) is unnecessary. The authorities cited for this part are
40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.
We propose to revise subpart 841.1, General, by deleting 841.100,
Scope of part, as the section limited the scope of the part to
connection charges and since the revised part 841 would cover the full
breadth of utility services, and 841.103, Statutory and delegated
authority, and to move it to the VAAM as it represents internal
guidance to contracting officers.
We propose to add section 841.102, Applicability, to clarify that
the part applies to acquisitions of utility services from both
regulated and nonregulated utility suppliers and that when energy is
acquired as a commodity it is considered to be purchase of supplies
rather than utility services.
We propose to delete subpart 841.2, Acquiring Utility Services, as
its requirements for technical and legal review are redundant with Part
801.
We propose to add subpart 841.5, Solicitation Provision and
Contract Clauses, and sections 841.501, Solicitation provision and
contract clauses (no text), and 841.501-70, Disputes--Utility
contracts, which prescribes the use of new clause 852.841-70,
Disputes--Utility Contracts, in solicitations and contracts for utility
services subject to the jurisdiction and regulation of a utility rate
commission.
VAAR Part 842--Contract Administration and Audit Services
We propose to revise section 842.000, Scope of part, to clarify
that the part prescribes policies and procedures for contract
administration and audit services for Department of Veteran Affairs
(VA) contracts. We propose to revise 842.070, Definitions, to revise
the definition of ``Contract Administration'' to provide more detail.
We also propose to add a definition for ``Administrative Contracting
Officer Letter of Delegation'' to the section.
We propose to delete subpart 842.1, Contract Audit Services. Under
the subpart, we propose to delete 842.101, Contract audit
responsibilities, because the FAR guidance is sufficient in terms of
policy, and the procedural guidance was moved to the VAAM. We also
propose to remove 842.102, Assignment of contract audit services, from
the VAAR as it provides internal guidance to VA's contracting officers
on how to obtain contract audit services and move coverage to the VAAM.
We propose to revise subpart 842.2, Contract Administration
Services, to add section 842.270, Contracting Officer's
Representatives' role in contract administration, to provide policy on
the appointment of the Contracting Officer's Representative in contract
administration. We propose to redesignate 842.271, Contract clause for
Government construction contract administration, to 842.272 as we
propose to add a new section, title and content at 842.271. The new
section 842.271, Administrative Contracting Officer's role in contract
administration and delegated functions, describes the requisite ACO
Letter of Delegation and the limitations of ACO authority, and in
paragraph (d) would prescribe clause 852.242-71, Administrative
Contracting Officer. Under the revision to subpart 842.2, the newly
added 842.272, Contract clause for Government construction contract
administration, prescribes clause 852.242-70, Government Construction
Contract Administration, and revises the prescription for use in
solicitations and contracts for construction expected to exceed the
micro-purchase threshold by adding the words ``,when contract
administration is delegated'' at the end of the prescription to reflect
that the clause would only be inserted by the
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contracting officer when contract administration is delegated to
another contracting activity or contracting officer.
We propose to revise section 842.705, Final indirect cost rates, to
require contracting officers to request audits on proposed final
indirect cost rates and billing rates for use in cost reimbursement and
fixed-price incentive contracts except when quick closeout procedures
are used. We propose to remove paragraph (b) of the existing text as
internal procedural guidance and move it to the VAAM.
We propose to delete subpart 842.8, Disallowance of Costs. We
propose to delete 842.801-70, Audit assistance prior to disallowing
costs, as it references an office that no longer exists. We propose to
delete 842.803, Disallowing costs after incurrence, which emphasizes
that COs cannot exceed their contracting authority which is redundant
to the FAR.
We propose to revise subpart 842.12, Novation and Change-of-Name
Agreements, to add 842.1202, Responsibility for executing agreements,
which provides detailed policy requirements regarding responsibilities
for executing agreements related to a successor in interest to, or a
change of name of a contractor. This is information that is relevant to
the public at large as to how such modifications will be processed. We
propose to remove 842.1203, Processing agreements, as the VAAR coverage
provided is redundant to FAR 42.1203. Internal requirements for OGC
legal counsel review have been moved to the VAAM.
VAAR Part 852--Solicitation Provisions and Contract Clauses
In subpart 852.2, Text of Provisions and Clauses, we propose to
revise provision 852.209-70, Organizational Conflicts of Interest, to
remove an outdated citation and to correct capitalization. The
remaining language in the provision is unchanged.
We propose to add clause 852.241-70, Disputes--Utility Contracts,
to provide that matters involving the interpretation of tariffed retail
rates, tariff rate schedules, and tariffed terms provided under this
contract are subject to any determinations by the independent
regulatory body having jurisdiction.
We propose to revise clause 852.242-70, Government Construction
Contract Administration, for use in all construction solicitations and
contracts expected to exceed the micro-purchase threshold, when
contract administration is delegated. The text of the clause remains
the same, but the first sentence ``As prescribed in 842.271, . . .'' is
revised to ``As prescribed in 842.272, . . .'' to reflect the new
designation as this rule has added different content at 842.271. The
clause authorizes the contracting officer to delegate contract
administration authority to another contracting officer, and to
designate another VA employee to act as resident engineer at the
construction site with limited and specific authority.
We propose to add clause 852.242-71, Administrative Contracting
Officer, for use in all construction solicitations and contracts
expected to exceed the micro-purchase threshold, which states that the
contracting officer reserves the right to designate an Administrative
Contracting Officer (ACO) for the purpose of performing certain tasks/
duties in the administration of the contract and that the designation
will be in writing through an ACO Letter of Delegation.
Executive Orders 12866, 13563 and 13771
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). E.O. 13563 (Improving Regulation and Regulatory Review)
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. The
Office of Information and Regulatory Affairs has determined that this
rule is not a significant regulatory action under Executive Order
12866.
VA's impact analysis can be found as a supporting document at
http://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its impact analysis are available on VA's website at
http://www.va.gov/orpm/, by following the link for ``VA Regulations
Published From FY 2004 Through Fiscal Year to Date.''
This proposed rule is not expected to be an E.O. 13771 regulatory
action because this proposed rule is not significant under E.O. 12866.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires
that VA consider the impact of paperwork and other information
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi).
This proposed rule contains one provision constituting a collection of
information at 48 CFR 809.507-1 and 48 CFR 852.209-70 which require
offerors on solicitations for management support and consulting
services to advise, as part of the firm's offer, whether or not award
of the contract to the firm might involve a conflict of interest and,
if so, to disclose all relevant facts regarding the conflict. The
information is used by the contracting officer to determine whether or
not to award a contract to the firm or, if a contract is to be awarded
despite a potential conflict, whether or not additional contract terms
and conditions are necessary to mitigate the conflict. No new
collection of information is associated with this provision as a part
of this proposed rule. The information collection requirement for
809.507-1 and 852.209-70 is currently approved by OMB and has been
assigned OMB control number 2900-0418. This rule amends this
information collection requirement to revise 809.507-1 to designate
852.209-70 as a provision instead of a clause. For the requested
administrative amendments to VAAR 852.209-70, as required by the
Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA will submit
this information collection amendment to OMB for its review.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (5
U.S.C. 601-612).
This rulemaking does not change VA's policy regarding small
businesses, does not have an economic impact to individual businesses,
and there are no increased or decreased costs to small business
entities. On this basis, the proposed rule would not have an economic
impact on a substantial number of small entities as they are defined in
the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, pursuant
to 5 U.S.C. 605(b), the initial and final regulatory flexibility
analysis requirements of 5 U.S.C. 603 and 604 do not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before
[[Page 21815]]
issuing any rule that may result in the expenditure by State, local,
and tribal Governments, in the aggregate, or by the private sector, of
$100 million or more (adjusted annually for inflation) in any one year.
This proposed rule will have no such effect on State, local, and tribal
Governments or on the private sector.
List of Subjects
48 CFR Part 802
Government procurement.
48 CFR Part 809
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 841
Government procurement, Utilities.
48 CFR Part 842
Accounting, Government procurement.
48 CFR Part 852
Government procurement, Reporting and recordkeeping requirements.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Pamela
Powers, Chief of Staff, Performing the Delegable Duties of the Deputy
Secretary, Department of Veterans Affairs, approved this document on
April 8, 2020, for publication.
Consuela Benjamin,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons set out in the preamble, VA proposes to amend 48
CFR to revise parts 802, 809, 841, 842 and 852 as follows:
PART 802--DEFINITIONS OF WORDS AND TERMS
0
1. The authority citation for part 802 continues to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C.
1702; and 48 CFR 1.301-1.304.
802.101 [AMENDED]
0
2. Section 802.101 is amended to remove the definitions for
``Suspending and Debarring Official (SDO)'' and ``Suspension and
Debarment Committee (S&D Committee).''
PART 809--CONTRACTOR QUALIFICATIONS
0
3. The authority citation for part 809 is revised to read as follows:
Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c); 41 U.S.C.
1702; and 48 CFR 1.301-1.304.
Subpart 809.1--Responsible Prospective Contractors 809.104 and
809.104-2 [Removed]
0
4. Sections 809.104 and 809.104-2 are removed.
Subpart 809.2 [Removed and Reserved]
0
5. Subpart 809.2, consisting of sections 809.201, 809.202, 809.204,
809.206, 809.206-1, and 809.270 is removed.
Subpart 809.4--Debarment, Suspension, and Ineligibility
0
6. Subpart 809.4 is revised to read as follows:
809.400 Scope of subpart.
This subpart implements FAR subpart 9.4 and prescribes VA's
procedures and related actions for the suspension and debarment of
contractors.
809.402 Policy.
(b) Statutory debarments pursuant to the authority of 38 U.S.C.
8127(g), Enforcement Penalties for Misrepresentation, are mandatory
when the determination is made that a business concern has willfully
and intentionally misrepresented its status as a service-disabled,
Veteran-owned small business or Veteran-owned small business.
809.403 Definitions.
Suspension & Debarment (S&D) Committee means a committee authorized
by the SDO to assist the SDO with suspension and debarment related
matters.
Suspending and Debarring Official (SDO) means the individual
responsible for final decisions regarding suspension and debarment, as
appointed by the agency.
809.405 Effect of listing.
The authority under FAR 9.405(a), 9.405(d)(2), and 9.405(d)(3) to
determine whether to solicit from, evaluate bids or proposals from, or
award contracts to contractors with active exclusions in the System for
Award Management (SAM) is delegated to the Suspending and Debarring
Official (SDO). This authority is further delegated to the HCAs, who
may delegate this authority, in writing, to a designee.
809.405-1 Continuation of current contracts.
(a) Notwithstanding the suspension, proposed debarment, or
debarment of a contractor, VA may continue contracts or subcontracts in
existence at the time the contractor was suspended, proposed for
debarment, or debarred, unless the cognizant head of the contracting
activity (HCA) directs otherwise. Examples of factors to be considered
include, but are not limited to, potential costs associated with a
termination, possible disruption to VA program objectives, and
integrity of VA acquisition programs.
(b) Authority to make the determinations under FAR 9.405-1(b) is
delegated to the SDO and is further delegated to the HCA, who may
delegate this authority, in writing, to a designee. The HCA or their
designee must make a written determination of the compelling reasons in
accordance with FAR 9.405-1(b). Compelling reasons for the purposes of
FAR 9.405-1(b) include, but are not limited to, urgency of the need for
new or continued work, lengthy time period to acquire the new work from
other sources and meeting estimated quantity for requirements
contracts.
809.405-2 Restrictions on subcontracting.
Authority to make the written determination required under FAR
9.405-2 consenting to a contractor's use of a subcontractor who is
suspended, proposed for debarment, or debarred is delegated to the SDO.
This authority is further delegated to the HCA, who may delegate this
authority, in writing, to a designee.
809.406 Debarment.
809.406-1 General.
(a) For the purposes of FAR 9.406-1, the SDO's authority includes
debarments pursuant to the Federal Management Regulation at 41 CFR 102-
117.295. In addition to the factors listed in FAR 9.406-1, the SDO may
consider the following examples before arriving at a debarment
decision:
(1) Whether the contractor had a mechanism, such as a hotline, by
which employees could have reported suspected instances of improper
conduct, and instructions in place that encouraged employees to make
such reports; or
(2) Whether the contractor conducted periodic reviews of company
business practices, procedures, policies, and internal controls for
compliance with standards of conduct and the special requirements of
Government contracting.
[[Page 21816]]
(c) As provided in FAR 9.406-1(c), authority to determine whether
to continue business dealings between VA and a contractor suspended,
proposed for debarment, or debarred is delegated to the SDO.
809.406-2 Causes for debarment.
809.406-270 Additional causes for debarment.
(a) Discretionary causes. (1) In addition to the causes listed in
FAR 9.406-2 (a) through (c), the SDO may debar contractors, based upon
a preponderance of the evidence (as defined at FAR 2.101), for the
Government's protection, for--
(i) Any deliberate violation of the limitation on subcontracting
clause requirements for acquisitions under subpart 819.70; or
(ii) Failure to observe the material provisions of a voluntary
exclusion or an administrative agreement.
(2) The period of debarment shall be commensurate with the
seriousness of the action.
(b) Statutory cause. (1) Pursuant to 38 U.S.C. 8127(g), Enforcement
Penalties for Misrepresentation, the SDO shall debar, from contracting
with VA, for a period of not less than five years, any business concern
that has willfully and intentionally misrepresented the status of that
concern as a small business concern owned and controlled by Veterans or
as a small business concern owned and controlled by service-disabled
Veterans.
(2) Debarment of a business concern pursuant to 38 U.S.C. 8127(g)
shall include the debarment of all principals in the business concern.
Debarment shall be for a period of not less than five years.
(3) ``Willful and intentional'' misrepresentations, for the purpose
of debarment actions taken pursuant to 38 U.S.C. 8127(g), are defined
as deliberate misrepresentations concerning the status of the concern
as a small business concern owned and controlled by Veterans or as a
small business concern owned and controlled by service-disabled
Veterans as supported by the preponderance of evidence. Examples of a
preponderance of evidence for deliberate misrepresentation of SDVOSB
and/or VOSB status include but are not limited to: Criminal
convictions, plea agreements, deferred prosecution agreements, Board of
Contract Appeals decisions, and admissions of guilt.
809.406-3 Procedures.
(a) Any individual may submit a referral to debar an individual or
contractor to the SDO or to the S&D Committee. The referral for
debarment shall be supported with evidence of a cause for debarment
listed in FAR 9.406-2, or 809.406-2. The SDO shall forward referrals
for debarment to the S&D Committee. If the referring individual is a VA
employee and the referral for debarment is based on possible criminal
or fraudulent activities, the VA employee shall also refer the matter
to the VA Office of Inspector General.
(b) When the S&D Committee finds preponderance of the evidence for
a cause for debarment, as listed in FAR 9.406-2 or 809.406-2, it shall
prepare a recommendation and draft notice of proposed debarment for the
SDO's consideration.
(c) VA shall send the notice of proposed debarment to the last
known address of the individual or contractor, the individual or
contractor's counsel, or agent for service of process, by certified
mail, return receipt requested, or any other means that allows for
confirmation of delivery. In the case of a contractor, VA may send the
notice of proposed debarment to any partner, principal, officer,
director, owner or co-owner, or joint venture. The S&D Committee
concurrently shall list the appropriate parties as excluded in the SAM
in accordance with FAR 9.404.
(d) If VA does not receive a reply from the contractor within 30
days after sending the notice of proposed debarment, the S&D Committee
shall prepare a recommendation and refer the case to the SDO for a
decision on whether or not to debar based on the information available.
(e) If VA receives a reply from the contractor within 30 days after
sending the notice of proposed debarment, the S&D Committee shall
consider the information in the reply before the S&D Committee makes
its recommendation to the SDO.
(f) The S&D Committee, upon the request of the contractor proposed
for debarment, shall, as soon as practicable, allow the contractor an
opportunity to appear before the S&D Committee to present information
or argument personally or through a representative. The contractor may
supplement the oral presentation with written information and argument.
VA shall conduct the proceeding in an informal manner and without
requirement for a transcript.
(g) If the S&D Committee finds the contractor's or individual's
submission in opposition to the proposed debarment raises a genuine
dispute over facts material to the proposed debarment and the debarment
action is not based on a conviction or civil judgment, the S&D
Committee shall submit to the SDO the information establishing the
dispute of material facts. If the SDO agrees there is a genuine dispute
of material facts, the SDO shall refer the dispute to a designee for a
resolution pursuant to 809.470, Fact-finding procedures. The S&D
Committee shall provide the contractor or individual the disputed
material fact(s). Decisions and determinations of VA's Center for
Verification and Evaluation (CVE) or Office of Small and Disadvantaged
Business Utilization (OSDBU), such as status protest decisions, and
size determinations of the SBA shall not be subject to dispute or fact-
finding in proposed debarment actions. The S&D Committee and SDO shall
accept these decisions and determinations as resolved facts.
(h) If the proposed debarment action is based on a conviction or
civil judgment, or if there are no disputes over material facts, or if
any disputes over material facts have been resolved pursuant to
809.470, Fact-finding procedures, the SDO shall make a decision on the
basis of all information available including any written findings of
fact submitted by the designated fact finder, and oral or written
agreements presented or submitted to the S&D Committee by the
contractor.
(i) In actions processed under FAR 9.406 where no suspension is in
place and where fact finding is not required, the VA shall make the
final decision on the proposed debarment within 30 working days after
receipt of any information and argument submitted by the contractor,
unless the SDO extends this period for a good cause.
(j) In actions processed under 809.406-270(b), the SDO notifies the
individuals and/or contractors of the determination of willful and
intentional misrepresentation in the notice of proposed debarment. VA
shall issue the final decision, removing or upholding the
determination, within 90 days after SDO's determination of willful and
intentional misrepresentation.
809.406-4 Period of debarment.
(a) The SDO will base the period of debarment on the circumstances
surrounding the cause(s) for debarment.
(b) The SDO may remove a debarment imposed under FAR 9.406, amend
its scope, or reduce the period of debarment based on a S&D Committee
recommendation if--
(1) VA has debarred the contractor; and
(2) The debarring official concurs with documentary evidence
submitted by or on behalf of the contractor setting forth the
appropriate grounds for granting relief. Appropriate grounds include
newly discovered material
[[Page 21817]]
evidence, reversal of a conviction, bona fide change of ownership or
management, elimination of the cause for which debarment was imposed,
or any other appropriate grounds.
(c) The period of debarment for willful and intentional
misrepresentations of SDVOSB or VOSB status pursuant to 809.406-270(b)
shall not be less than 5 years.
809.407 Suspension.
809.407-1 General.
(a) As provided in FAR 9.407-1(d), authority to determine whether
to continue business dealings between VA and a suspended contractor is
delegated to the HCAs. Compelling reasons include, but are not limited
to, urgency of the need for new or continued work, lengthy time period
to acquire the new work from other sources, and meeting estimated
quantities for requirements contracts.
(b) For the purposes of FAR 9.407-1, the SDO is the suspending
official under the Federal Management Regulation at 41 CFR 102-117.295.
809.407-3 Procedures.
(a) Any individual may submit a referral to suspend an individual
or contractor to the SDO or to the S&D Committee. Referrals shall
include supporting evidence of a cause for suspension listed in FAR
9.407-2. The SDO shall forward the referral to the S&D Committee. If
the referring individual is a VA employee and the referral for
suspension is based on possible criminal or fraudulent activities, the
VA employee shall also refer the matter to the VA Office of Inspector
General.
(b) When the S&D Committee finds adequate evidence of a cause for
suspension, as listed in FAR 9.407-2, it shall prepare a recommendation
and draft notice of suspension for the SDO's consideration.
(c) VA shall send the notice of suspension to the last known
address of the individual or contractor, the individual or contractor's
counsel, or agent for service of process, by certified mail, return
receipt requested, or any other means that allows for confirmation of
delivery. In the case of a contractor, VA may send the notice of
suspension to any partner, principal, officer, director, owner or co-
owner, or joint venture. The S&D Committee concurrently shall list the
appropriate parties as excluded in SAM in accordance with FAR 9.404.
(d) If VA receives a reply from the contractor within 30 days after
receipt of the notice of suspension, the S&D Committee shall consider
the information in the reply before the Committee makes further
recommendations to the SDO. The S&D Committee, upon the request of a
suspended contractor, shall, as soon as practicable, allow the
contractor an opportunity to appear before the S&D Committee to present
information or argument personally or through a representative. The
contractor may supplement the oral presentation with written
information and argument. The proceeding will be conducted in an
informal manner and without requirement for a transcript.
(e) For the purposes of FAR 9.407-3(b)(2), Decision making process,
in actions not based on an indictment, if the S&D Committee finds that
the contractor's submission in opposition to the suspension raises a
genuine dispute over facts material to the suspension, the S&D
Committee shall submit to the SDO the information establishing the
dispute of material facts. However, the S&D Committee may first
coordinate any further proceeding regarding the material facts in
dispute with the Department of Justice or with a State prosecuting
authority in a case involving a State jurisdiction. VA shall take no
further action to determine disputed material facts pursuant to this
section or 809.470 if the Department of Justice or a State prosecuting
authority advises VA in writing that additional proceedings to make
such a determination would prejudice Federal or State legal
proceedings.
(f) If the SDO agrees that there is a genuine dispute of material
facts, the SDO shall refer the dispute to the designee for resolution
pursuant to 809.470.
809.470 Fact-finding procedures.
The provisions of this section constitute the procedures to be used
to resolve genuine disputes of material fact pursuant to 809.406-3 and
809.407-3 of this subpart. The SDO shall appoint a designee to conduct
the fact-finding. OGC shall represent VA at any fact-finding hearing
and may present witnesses for VA and question any witnesses presented
by the contractor. The proceedings before the fact-finder will be
limited to a finding of the facts in dispute, as determined by the SDO.
The fact-finder shall establish the date for the fact-finding hearing,
normally to be held within 30 days after the S&D Committee notifies the
contractor or individual that the SDO has established a genuine dispute
of material fact(s) exists.
(a) The Government's representative and the contractor will have an
opportunity to present evidence relevant to the material fact(s)
identified by the SDO. The contractor or individual may appear in
person or through a representative at the fact-finding hearing. The
contractor or individual may submit documentary evidence, present
witnesses, and confront any person the agency presents.
(b) Witnesses may testify in person. Witnesses will be reminded of
the official nature of the proceedings and that any false testimony
given is subject to criminal prosecution. Witnesses are subject to
cross-examination. Hearsay evidence may be presented and will be given
appropriate weight by the fact-finder.
(c) The proceedings shall be transcribed and a copy of the
transcript shall be made available at cost to the contractor upon
request, unless the contractor and the fact-finder, by mutual
agreement, waive the requirement for a transcript.
(d) The fact-finder shall determine the disputed fact(s) by a
preponderance of the evidence for proposed debarments, and by adequate
evidence for suspensions. Written findings of fact shall be prepared by
the fact-finder. A copy of the findings of fact shall be provided to
the SDO, the Government's representative, and the contractor or
individual. The SDO will consider the written findings of fact in the
decision regarding the suspension or proposed debarment.
Subpart 809.5--Organizational and Consultant Conflicts of Interest
809.503 [Removed]
0
7. Section 809.503 is removed.
809.504 [Removed]
0
8. Section 809.504 is removed.
0
9. Section 809.507-1 is revised to read as follows:
809.507-1 Solicitation provisions.
(a) While conflicts of interest may not presently exist, award of
certain types of contracts may create potential future organizational
conflicts of interest (see FAR 9.508 for examples). If a solicitation
may create a potential future organizational conflict of interest, the
contracting officer shall insert a provision in the solicitation
imposing an appropriate restraint on the contractor's eligibility for
award of contracts in the future. Under FAR 9.507-1, the restraint must
be appropriate to the nature of the conflict and may exclude the
contractor from award of one or more contracts in the future.
[[Page 21818]]
(b) The provision at 852.209-70, Organizational Conflicts of
Interest, must be included in any solicitation for the services
addressed in FAR 9.502.
PART 841--ACQUISITION OF UTILITY SERVICES
0
10. The authority citation for part 841 is revised to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.
Subpart 841.1--General
841.100 [Removed]
0
11. Section 841.100 is removed.
0
12. Section 841.102 is added to read as follows:
841.102 Applicability.
(a) This part applies to purchases of utility services from
nonregulated and regulated utility suppliers when a delegation of
authority from GSA for those services is requested and obtained.
(b)(4) The acquisition of energy, such as electricity, and natural
or manufactured gas, when purchased as a commodity is considered to be
acquisitions of supplies rather than utility services as described in
FAR part 41.
841.103 [Removed]
0
13. Section 841.103 is removed.
841.2 [Removed and reserved]
0
14. Subpart 841.2 is removed and reserved.
0
15. Subpart 841.5 is added to read as follows:
Subpart 841.5--Solicitation Provision and Contract Clauses
841.501 Solicitation provision and contract clauses.
841.501-70 Disputes--Utility contracts.
The contracting officer shall insert the clause at 852.841-70,
Disputes--Utility Contracts, in solicitations and contracts for utility
services subject to the jurisdiction and regulation of a utility rate
commission.
PART 842--CONTRACT ADMINISTRATION AND AUDIT SERVICES
0
16. The authority citation for part 842 continues to read as follows:
Authority 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301-
1.304.
0
17. Section 842.000 is revised to read as follows:
842.000 Scope of part.
This part prescribes policies and procedures for contract
administration and audit services for all Department of Veterans
Affairs (VA) contracting activities.
0
18. Section 842.070 is revised to read as follows:
842.070 Definitions.
As used in this part--
Contract administration means Government actions taken after
contract award to obtain compliance with such contract requirements as
timely delivery of supplies or services, acceptance, payment, and
closing of the contract. These actions include, but are not limited to,
technical, financial, audit, legal, administrative, and managerial
services in support of the contracting officer. It may include
additional tasks requested of designated contract administration
offices within VA in support of pre-award activities for solicitations
issued by or awarded by other contracting activities through
Interagency Acquisitions.
Administrative Contracting Officer Letter of Delegation means a
delegation of functions as set forth in FAR 42.202, 42.302 and 842.271,
Administrative Contracting Officer's role in contract administration
and delegated functions, that is issued by a contracting officer to
delegate certain contract administration or specialized support
services.
Subpart 842. 1--[Removed and reserved]
0
19. Subpart 842.1 is removed and reserved.
0
20. Subpart 842.2 is added to read as follows:
Subpart 842.2--Contract Administration Services
842.270 Contracting Officer's Representatives' role in contract
administration.
(a) A contracting officer may designate a qualified person to be
the Contracting Officer's Representative (COR) for the purpose of
performing certain technical functions in administering a contract.
(b) The COR acts solely as a technical representative of the
contracting officer and is not authorized to perform any function that
results in a change in the scope, price, terms or conditions of the
contract.
(c) A COR designation must be made in writing by the contracting
officer. The designation shall identify the responsibilities and
limitations of the COR. A copy of the designation must be furnished to
the contractor and the Administrative Contracting Officer (ACO), if
separately assigned.
842.271 Administrative Contracting Officer's role in contract
administration and delegated functions.
(a) Contracting officers are authorized to delegate certain
contract administration or specialized support services in accordance
with FAR 42.202 and 42.302 to cognizant VA administrative contracting
officers.
(b) The Administrative Contracting Officer's authority is limited
to the actions detailed in the delegation.
(c) These delegations of authority shall be set forth in a written
Administrative Contracting Officer (ACO) Letter of Delegation issued by
the contracting officer to the accepting contract administration office
and designated administrative contracting officer. The ACO Letter of
Delegation shall contain the information required in FAR 42.202(a)
through (c) and identify the responsibilities and limitations of the
ACO. A copy of the delegation will be furnished to the contractor and
the ACO.
(d) The contracting officer shall insert the clause at 852.242-71,
Administrative Contracting Officer, in solicitations and contracts
expected to exceed the micro-purchase threshold.
842.272 Contract clause for Government construction contract
administration.
The contracting officer shall insert the clause at 852.242-70,
Government Construction Contract Administration, in solicitations and
contracts for construction expected to exceed the micro-purchase
threshold, when contract administration is delegated.
0
21. Section 842.705 is revised to read as follows:
842.705 Final indirect cost rates.
Except when the quick-closeout procedures described in FAR 42.708
are used, contracting officers shall request contract audits on
proposed final indirect cost rates and billing rates for use in cost
reimbursement and fixed-price incentive contracts as prescribed in FAR
subpart 42.7.
Subpart 842.8--[Removed and reserved]
0
22. Subpart 842.8 is removed and reserved.
Subpart 842.12--Novation and Change-of-Name Agreements
0
23. Section 842.1202 is added to read as follows:
842.1202 Responsibility for executing agreements.
To avoid duplication of effort on the part of VA contracting
offices in preparing and executing agreements to
[[Page 21819]]
recognize a change of name or successor in interest involving multiple
contracts issued by VA activities, only one agreement will be prepared
and executed between the Government and the parties (transferor and
transferee) and will be processed as forth in FAR 42.1203. The Office
of Acquisition and Logistics, Risk Management and Compliance Service
will, in each case, designate a cognizant HCA responsible for assigning
a contracting officer. The designated contracting officer shall be
responsible for taking all necessary and appropriate actions with
respect to either recognizing or not recognizing a successor in
interest or recognizing a change of name agreement and processing and
executing the agreements as set forth in VA procedures.
842.1203 [Removed]
0
24. Section 842.1203 is removed.
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 852.2--Texts of Provisions and Clauses
0
25. Section 852.209-70 is revised to read as follows:
852.209-70 Organizational Conflicts of Interest.
As prescribed in 809.507-1(b), insert the following provision:
Organizational Conflicts of Interest (Date)
(a) It is in the best interest of the Government to avoid
situations which might create an organizational conflict of interest
or where the Offeror's performance of work under the contract may
provide the Contractor with an unfair competitive advantage. The
term ``organizational conflict of interest'' means that because of
other activities or relationships with other persons, a person is
unable to render impartial assistance or advice to the Government,
or the person's objectivity in performing the contract work is or
might be otherwise impaired, or the person has an unfair competitive
advantage.
(b) The Offeror shall provide a statement with its offer which
describes, in a concise manner, all relevant facts concerning any
past, present, or currently planned interest (financial,
contractual, organizational, or otherwise) or actual or potential
organizational conflicts of interest relating to the services to be
provided under this solicitation. The Offeror shall also provide
statements with its offer containing the same information for any
consultants and subcontractors identified in its proposal and which
will provide services under the solicitation. The Offeror may also
provide relevant facts that show how its organizational and/or
management system or other actions would avoid or mitigate any
actual or potential organizational conflicts of interest.
(c) Based on this information and any other information
solicited or obtained by the Contracting Officer, the Contracting
Officer may determine that an organizational conflict of interest
exists which would warrant disqualifying the Contractor for award of
the contract unless the organizational conflict of interest can be
mitigated to the Contracting Officer's satisfaction by negotiating
terms and conditions of the contract to that effect. If the conflict
of interest cannot be mitigated and if the Contracting Officer finds
that it is in the best interest of the United States to award the
contract, the Contracting Officer shall request a waiver in
accordance with FAR 9.503.
(d) Nondisclosure or misrepresentation of actual or potential
organizational conflicts of interest at the time of the offer or
arising as a result of a modification to the contract, may result in
the termination of the contract at no expense to the Government.
(End of provision)
0
26. Section 852.241-70 is added to read as follows:
852.241-70 Disputes--Utility Contracts.
As prescribed in 841.501-70, insert the following clause:
Disputes--Utility Contracts (Date)
(a) Definition. As used in this clause, Independent regulatory
body means the Federal Energy Regulatory Commission, a state-wide
agency, or an agency with less than state-wide jurisdiction when
operating pursuant to state authority. The body has the power to
fix, establish, or control the rates and services of utility
suppliers.
(b) Independent Regulatory Body determinations. The requirements
of the Disputes clause at FAR 52.233-1 are supplemented to provide
that matters involving the interpretation of tariffed retail rates,
tariff rate schedules, and tariffed terms provided under this
contract are subject to any determinations by the independent
regulatory body having jurisdiction.
(End of clause)
0
27. Section 852.242-70 is revised to read as follows:
852.242-70 Government Construction Contract Administration.
As prescribed in 842.272, insert the following clause. This is a
fill-in clause.
Government Construction Contract Administration (Date)
(a) Contract administration functions set forth in FAR 42.302
are hereby delegated to: [Insert name and office address of
Contracting Officer]
[Note: If any of the functions set forth in FAR 42.302 are to be
retained by the Contracting Officer, identify those as well with the
notation: ``With the exception of the following contract
administration functions: ____.''Delete this notation if not
required.]
(b) The following functions will be retained by the Contracting
Officer or Administrative Contracting Officer (ACO) and are not
redelegable to Resident Engineers:
(1) Award of contract modifications either through supplemental
agreements or change orders that exceed the ACO's appointed warrant
limitations.
(2) Issuance of default letters.
(3) Issuance of Cure or Show-Cause Notices.
(4) Suspension of work letters and/or modifications.
(5) Issuance of Contracting Officer final determination letters.
(6) Issuance of termination notices.
(7) Authorization of final payment.
(c) The work will be under the direction of a Department of
Veterans Affairs Contracting Officer, who may designate another VA
employee to act as resident engineer at the construction site who
possesses limited warranted authority.
(d) Except as provided below, the resident engineer's directions
will not conflict with or change contract requirements. Within the
limits of any specific authority delegated by the Contracting
Officer, the resident engineer may, by written direction, make
changes in the work. The Contractor shall be advised of the extent
of such authority prior to execution of any work under the contract.
(e) The Contracting Officer or an Administrative Contracting
Officer identified in paragraph (a) may further delegate limited
authority and specialized support services responsibilities below to
the following warranted Resident Engineer personnel on site, not to
exceed the dollar value and threshold of their warrant: [Insert name
and office address of Resident Engineer with limited authority]
(1) Conduct post-award orientation conferences.
(2) Issue administrative changes (see FAR 43.101) correcting
errors or omissions, contractor address, facility or activity code,
remittance address, computations which do not required additional
contract funds, and other such changes.
(3) For actions not to exceed $ [Insert dollar amount] negotiate
and execute supplemental agreements resulting from change orders
issued under the Changes clause.
(4) Negotiate and execute supplemental agreements changing
contract delivery schedules where the time extension does not exceed
[Insert number] calendar days.
(End of clause)
0
28. Section 852.242-71 is added to read as follows:
852.242-71 Administrative Contracting Officer.
As prescribed in 842.271, insert the following clause:
Administrative Contracting Officer (Date)
The Contracting Officer reserves the right to designate an
Administrative Contracting Officer (ACO) for the purpose of
performing certain tasks/duties in the administration of
[[Page 21820]]
the contract. Such designation will be in writing through an ACO
Letter of Delegation and will identify the responsibilities and
limitations of the ACO. A copy of the ACO Letter of Delegation will
be furnished to the Contractor.
(End of clause)
[FR Doc. 2020-07799 Filed 4-17-20; 8:45 am]
BILLING CODE 8320-01-P