VA Acquisition Regulation: Administrative Matters; Publicizing Contract Actions; and Termination of Contracts
| Published date | 13 February 2020 |
| Record Number | 2020-02425 |
| Section | Proposed rules |
| Court | Veterans Affairs Department |
Federal Register, Volume 85 Issue 30 (Thursday, February 13, 2020)
[Federal Register Volume 85, Number 30 (Thursday, February 13, 2020)]
[Proposed Rules]
[Pages 8242-8244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02425]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 804, 805, 849, and 852
RIN 2900-AQ77
VA Acquisition Regulation: Administrative Matters; Publicizing
Contract Actions; and Termination of Contracts
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revise or remove any policy superseded by changes in the Federal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 procedural guidance internal to
VA into the 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VAAR with the FAR and remove outdated and duplicative requirements and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 Administrative Matters, Publicizing Contract Actions, and
Termination of Contracts, as well as an affected part concerning
Solicitation Provisions and Contract Clauses.
DATES: Comments must be received on or before April 13, 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 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-AQ77--VA Acquisition Regulation:
Administrative Matters; Publicizing Contract Actions; and Termination
of Contracts.'' 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 N. Taylor, Senior
Procurement Analyst, Procurement Policy and Warrant Management
Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 382-
2787. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION:
Background
This action is being taken 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. This authority ensures that Government
procurements are handled fairly and consistently, that the Government
receives overall best value, and that the Government and contractors
both operate under a known set of rules.
The proposed rule would update the VAAR to current FAR titles,
requirements, and definitions; it would correct inconsistencies and
remove redundancies and duplicate material already covered by the FAR;
it would also delete outdated material or information and appropriately
renumber VAAR text, clauses, and provisions where required to comport
with FAR format, numbering and arrangement. All amendments, revisions,
and removals have been reviewed and concurred with by an Integrated
Product Team of agency stakeholders.
The VAAR uses the regulatory structure and arrangement of the FAR
and headings and subject areas are broken up consistent with the FAR
content. The VAAR is divided into subchapters, parts (each of which
covers a separate aspect of acquisition), subparts, sections, and
paragraphs.
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
The 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 VA Acquisition Manual (VAAM) as
internal agency 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 on line.
VAAR Part 804--Administrative Matters
Under part 804, Administrative Matters, 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. We propose to remove the authority
citation of 38 U.S.C. 8127 and 8128 as the section requiring the
citation, 804.1102, Vendor Information Pages (VIP) Database, is being
moved to part 819, Small Business Programs. 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 remove subpart 804.1, Contract Execution, and section
804.101, Contracting officer's signature, because it duplicates
coverage in the FAR. This proposed rule would also remove section
804.1102, Vendor Information Pages (VIP) Database, as this information
is being moved to part 819, Small Business Programs.
We propose to add subpart 804.13, Personal Identity Verification,
and section 804.1303, Contract clause, to prescribe clause 852.204-70,
Personal Identity Verification of Contractor Personnel, which requires
personal identity verification of all employees performing under a
contract when
[[Page 8243]]
frequent and continuing access to VA facilities or information systems
is required.
VAAR Part 805--Publicizing Contract Actions
We propose to remove and reserve part 805. Under this part, we
propose to remove section 805.202, Exceptions, as duplicative of FAR
coverage at 6.302-5. This proposed rule would also remove section
805.205, Special situations, since it duplicates coverage at FAR
5.101(b) and 5.502(a). Finally, this proposed rule would remove section
805.207, Preparation and transmittal of synopses, as the guidance it
provides is outdated and does not add value.
VAAR Part 849--Termination of Contracts
Under part 849, Termination of Contracts, we propose to remove 41
U.S.C. 1121(c)(3), which addresses the authority of the Administrator
of OFPP to prescribe Government-wide policies to be implemented in the
FAR. 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 remove the entire subpart 849.1, General Principles,
as it contains internal guidance. Specifically, sections 849.101,
Authorities and responsibilities, and 849.106, Fraud or other criminal
conduct, are proposed for removal as they contain internal procedures
which will be addressed in VAAM. We propose to remove sections 849.811,
Review of proposed settlements, 849.111-70, Required review, and
849.111-71, Submission of information, as they include outdated
information and internal procedures which will be updated and addressed
in the VAAM.
This proposed rule would add subpart 849.5, Contract Termination
Clauses, and section 849.504-70, Termination of mortuary services, to
prescribe clause 852.249-70, Termination for Default--Supplement for
Mortuary Services, in all solicitations and contracts for mortuary
services containing the FAR clause 52.249-8, Default (Fixed-Price
Supply and Service).
VAAR Part 852--Solicitation Provisions and Contract Clauses
We propose to add clause 852.204-70, Personal Identity Verification
of Contractor Personnel, to require contractor compliance with
Department of Veterans Affairs policy for personal identity
verification of all employees performing under a contract that requires
frequent and continuing access to VA facilities or information systems.
We propose to add clause 852.249-70, Termination for Default--
Supplement for Mortuary Services, which supplements FAR clause 52.249-
8, Default (Fixed-Price Supply and Service), to identify specific
circumstances in which the Government may terminate for default in
contracts for mortuary services.
Executive Orders 12866, 13563 and 13771
Executive Orders (EOs) 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
This proposed rule contains no provisions constituting a collection
of information under the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3521).
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 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 would have no such
effect on State, local, and tribal Governments or on the private
sector.
List of Subjects
48 CFR Parts 804, 805, and 849
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, Department of Veterans Affairs, approved this
document on January 28, 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 parts 804, 805, 849, and 852 as follows:
PART 804--ADMINISTRATIVE MATTERS
0
1. The authority citation for part 804 is revised 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 804.1 [Removed and Reserved]
0
2. Subpart 804.1, consisting of sections 804.101 and 804.1102, is
removed and reserved.
0
3. Subpart 804.13 is added to read as follows:
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Subpart 804.13--Personal Identity Verification
804.1303 Contract clause.
The contracting officer shall insert the clause at 852.204-70,
Personal Identity Verification of Contractor Personnel, in
solicitations and contracts that require contractor employees to have
routine access to a VA facility or to VA information systems. This
clause is used in conjunction with FAR clause 52.204-9, Personal
Identity Verification of Contractor Personnel.
PART 805 [Removed and Reserved]
0
4. Part 805, consisting of sections 805.202, 805.205, and 805.207, is
removed and reserved under the authority of 40 U.S.C. 121(c) and 48 CFR
1.301 through 1.304.
PART 849--TERMINATION OF CONTRACTS
0
5. The authority citation for part 849 is revised 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 849.1 [Removed and Reserved]
0
6. Subpart 849.1, consisting of sections 849.101, 849.106, 849.111,
849.111-70, and 849.111-71, is removed and reserved.
0
7. Subpart 849.5 is revised to read as follows:
Subpart 849.5--Contract Termination Clauses
849.504-70 Termination of mortuary services.
Use the clause at 852.249-70, Termination for Default--Supplement
for Mortuary Services, in all solicitations and contracts for mortuary
services containing the FAR clause 52.249-8, Default (Fixed-Price
Supply and Service).
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
8. The authority citation for part 852 continues to read as follows:
Authority: Pub. L. 101-647; 20 U.S.C. 7181-7183; 38 U.S.C.
8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41
U.S.C. 1303; 41 U.S.C 1702; and 48 CFR 1.301 through 1.304.
Subpart 852.2--Text of Provisions and Clauses
0
9. Section 852.204-70 is added to read as follows:
852.204-70 Personal Identity Verification of Contractor Personnel.
As prescribed in 804.1303, insert the following clause:
Personal Identity Verification of Contractor Personnel (Date)
(a) The Contractor shall comply with current Department of
Veterans Affairs policy for personal identity verification of all
employees performing under this contract when frequent and
continuing access to VA facilities or information systems is
required.
(b) The Contractor shall insert this clause in all subcontracts
when the subcontractor's employees will require frequent and
continuing access to VA facilities or information systems.
(End of clause)
0
10. Section 852.249-70 is revised to read as follows:
852.249-70 Termination for Default--Supplement for Mortuary Services.
As prescribed in 849.504-70, insert the following clause:
Termination for Default--Supplement for Mortuary Services (Date)
The FAR clause entitled Default (Fixed-Price Supply and
Service), at 52.249-8, is supplemented as follows:
The Contracting Officer may terminate this contract for default
by written notice without the ten day notice required by paragraph
(a)(2) of the Default clause if--
(a) The Contractor, through circumstances reasonably within its
control or that of its employees, performs any act under or in
connection with this contract, or fails in the performance of any
service under this contract and the act or failures may reasonably
be considered to reflect discredit upon the Department of Veteran
Affairs in fulfilling its responsibility for proper care of remains;
(b) The Contractor, or its employees, solicits relatives or
friends of the deceased to purchase supplies or services not under
this contract. (The Contractor may furnish supplies or arrange for
services not under this contract, only if representatives of the
deceased voluntarily request, select, and pay for them.);
(c) The services or any part of the services are performed by
anyone other than the Contractor or the Contractor's employees
without the written authorization of the Contracting Officer;
(d) The Contractor refuses to perform the services required for
any particular remains; or
(e) The Contractor mentions or otherwise uses this contract in
its advertising in any way.
(End of clause)
[FR Doc. 2020-02425 Filed 2-12-20; 8:45 am]
BILLING CODE 8320-01-P
