VA Acquisition Regulation: Contracting by Negotiation; Service Contracting
| Published date | 04 September 2019 |
| Citation | 84 FR 46448 |
| Record Number | 2019-17824 |
| Section | Rules and Regulations |
| Court | Veterans Affairs Department |
Federal Register, Volume 84 Issue 171 (Wednesday, September 4, 2019)
[Federal Register Volume 84, Number 171 (Wednesday, September 4, 2019)]
[Rules and Regulations]
[Pages 46448-46457]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17824]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 801, 815, 816, 837, 849, 852, and 871
RIN 2900-AQ20
VA Acquisition Regulation: Contracting by Negotiation; Service
Contracting
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending and
updating its VA Acquisition Regulation (VAAR) in phased increments to
revise or remove any policy superseded by changes in the Federal
Acquisition Regulation (FAR), to remove procedural guidance internal to
VA into the VA Acquisition Manual (VAAM), and to incorporate any new
agency specific regulations or policies. These changes seek to
streamline and align the VAAR with the FAR and remove outdated and
duplicative requirements and reduce burden on contractors. The VAAM
incorporates portions of the removed VAAR as well as other internal
agency acquisition policy. VA will rewrite certain parts of the VAAR
and VAAM, and as VAAR parts are rewritten, VA will publish them in the
Federal Register. In particular, this rulemaking revises VAAR
concerning Contracting by Negotiation and Service Contracting, as well
as affected parts covering the Department of Veterans Affairs
Acquisition Regulation System, Types of Contracts, Termination of
Contracts, Solicitation Provisions and Contract Clauses, and Loan
Guaranty and Vocational Rehabilitation and Employment Programs.
DATES: This rule is effective on October 4, 2019.
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: On September 7, 2018, VA published a
proposed rule in the Federal Register (83 FR 45384) which announced
VA's intent to amend regulations for VAAR Case RIN 2900-AQ20--VA
Acquisition Regulation: Contracting by Negotiation; Service
Contracting. VA provided a 60-day comment period for the public to
respond to the proposed rule and submit comments. The comment period
for the proposed rule ended on November 6, 2018 and VA received three
comments from one commenter. This rule adopts as a final rule, with
changes, the proposed rule published in the Federal Register on
September 7, 2018, with minor formatting and/or grammatical edits, as
well as the non-substantive changes described below. VA reviewed and
considered the comments raised by the one commenter in the development
of this final rule. A discussion of the issues raised in the comments
as well as the changes made to the rule as a result of those comments,
and the technical non-substantive changes to the final rule are
provided as follows:
In particular, this final rule revises the table at 801.106 to
reflect the addition of new VAAR clause 852.237-73, Crime Control Act--
Requirement for Background Checks and the corresponding new OMB control
number 2900-0863. This final rule also removes 815.303,
Responsibilities, and 815.304, Evaluation factors and significant
subfactors, and moves them to the VAAM as they contain procedural
guidance that is internal to the VA.
This rule adds a new section, 815.370, Only one offer. The
inclusion of this policy gives the contracting officer the ability to
re-solicit for an action if they only receive one offer and if the
solicitation gave offerors less than 30 days to submit a proposal. This
final rule removes subpart 815.4, Contract Pricing, as it contains
procedural guidance that is internal to the VA and the content has been
moved to the VAAM.
This final rule removes subpart 815.6, Unsolicited Proposals, as it
contains procedural guidance. This rulemaking adds subpart 816.5 and
section 816.506-70, Requirements--supplement for mortuary services,
which prescribes clause 852.216-76, Requirements--Supplement for
Mortuary Services, for all contracts for mortuary services.
Under part 837, this final rule removes section 837.103,
Contracting officer responsibility, as this internal procedural
guidance is more suitable for the VAAM. This rule also removes the
title and text at section 837.110, Solicitation provisions and contract
clauses, since FAR 52.237-2, Protection of Government Buildings,
Equipment and Vegetation, and 852.228-71, Indemnification and
Insurance, outline contractor liabilities and required insurance levels
and provides sufficient coverage in this area.
This final rule amends section 837.110-70, Services provided to
eligible beneficiaries, by retitling it ``VA solicitation provisions
and contract clauses,'' by removing the prescription for the clause,
852.271-70, Non-Discrimination in Services Provided to Beneficiaries,
and by adding the prescriptions for the new clauses 852.237-74, Non-
Discrimination in Service Delivery, and 852.237-75, Key Personnel. This
final rule removes subpart 837.2, Advisory and Assistance Services,
since it duplicates coverage in FAR.
This rule amends section 837.403, Contract clause, to redesignate
it as section 837.403-70, VA contract clauses, and adds prescriptions
for three new clauses that address protection of children under
contracts providing child care services as required by FAR 37.103(d):
852.237-71, Nonsmoking Policy for Children Services; 852.237-72, Crime
Control Act--Reporting of Child Abuse; and 852.237-73, Crime Control
Act--Requirement for Background Checks.
Under subpart 837.70, Mortuary Services, this rule adds section
837.7000, Scope, which cites the statutory basis for the mortuary
service benefits covered. This final rule also removes sections
837.7002, List of qualified funeral directors; 837.7003, Funeral
authorization; 837.7004, Administrative necessity; and 837.7005,
Unclaimed remains--all other cases, because this material was based on
internal VA guidance that has been rescinded.
This final rule adds subpart 849.5, Contract Termination Clauses,
section 849.504, Termination of fixed-price contracts for default (no
text), and section 849.504-70, Termination of mortuary services, to
prescribe a new clause 852.249-70, Termination for Default--Supplement
for Mortuary Services. Under subpart 852.2, this
[[Page 46449]]
regulatory action amends clause 852.215-70, Service-Disabled Veteran-
Owned and Veteran-Owned Small Business Evaluation Factors to add
language to comply with the statute requiring any business concern
determined by VA to have willfully and intentionally misrepresented a
company's SDVOSB/VOSB status to be subject to debarment for a period of
not less than five years.
This final rule amends 852.215-71, Evaluation Factor Commitments,
by adding language requiring that any business concern determined by VA
to have willfully and intentionally misrepresented a company's SDVOSB/
VOSB status be subject to debarment for a period of not less than five
years.
This final rule adds clause 852.215-72, Notice of Intent to Re-
Solicit, which informs offerors that in the event that only one offer
is received in response to a solicitation that allows offerors fewer
than 30 days to submit their proposal, the Contracting Officer may
cancel the solicitation and re-solicit for an additional period of at
least 30 days in accordance with 815.370-2.
This rulemaking adds clause 852.216-76, Requirements--Supplement
for Mortuary Services, for all requirements contracts for mortuary
services. Under part 871, this rule revises section 871.212, to
redesignate the first paragraph as (a); to remove the prescription of
clause 852.271-70, Non-Discrimination in Services Provided to
Beneficiaries; to renumber the remaining paragraphs as (1) through (4);
and to add new paragraph (b) to refer the contracting officer to
section 837.110-70(a) for the prescription of the new clause 852.237-
74, Non-Discrimination in Service Delivery.
VA provided a 60-day comment period for the public to respond to
the proposed rule. The comment period for the proposed rule ended on
November 6, 2018 and VA received comments from one commenter. The
issues raised in the comments as well as the changes made to the
proposed rule on the basis of those comments are provided as follows:
The commenter believes VAAR 815.370-4(b) could be misread to
suggest that, even when the exception applies, the contracting officer
must still consider maximizing competition when only one offer has been
received--which in many cases would mean considering whether to re-
solicit the requirement. The commenter commends VA for its thoughtful
development of this rule and of the agency's overarching goal of
revising and streamlining the VAAR, stating that SDVOSBs and VOSBs, as
well as VA contracting officers, will benefit from the clarity this
rulemaking provides.
VA concurs with the commenter in that a set-aside or any of the
other exemptions should not be subject to additional competition if the
contracting officer determines the price is fair and reasonable.
Therefore, we will retain the paragraph, but will modify the statement
related to additional competition in the first part of the sentence.
Paragraph (b) will read:
``(b) The applicability of an exception in paragraph (a) of this
section does not eliminate the need for the contracting officer to
ensure adequate time for competition is allotted or that the price is
fair and reasonable.''
The commenter believes that the SDVOSB/VOSB evaluation preference
at 15.304 should be applied in all instances a set-aside is not
performed, even on a lowest price technically acceptable (LPTA)
contract action. The commenter also recommends that when applying the
full and partial credit for SDVOSBs and VOSBs under subsection (b) in a
procurement where price is the only factor or that uses a lowest price
technically acceptable source selection process as described in FAR
15.101-2, the contracting officer must deem the price offered by a
verified SDVOSB to be 10% lower than its proposed price for evaluation
purposes, and the price offered by a verified VOSB to be 5% lower than
its proposed price for evaluation purposes.
VA appreciates the comment. However, the commenter recommends VA
apply a price evaluation preference. VA does not possess statutory
authority for a price evaluation preference. Therefore, no changes to
the proposed rule will be made.
Beyond the contracting priority to be used when setting a contract
or order aside, the commenter further believes that VA also must give
an evaluation preference to SDVOSBs and VOSBs, with greater evaluation
preference for SDVOSBs, then VOSBs, then all other small businesses
consistent with Veterans First. In this regard, the commenter is
recommending that VA should revise the proposed language at VAAR
815.304-71(a), which currently says that contracting officers shall
insert VAAR 852.215-70, SDVOSB and VOSB Evaluation Factors, ``in
competitively negotiated solicitations that are not set aside for
SDVOSBs or VOSBs.'' 83 FR at 45379. The commenter recommends that this
should be revised to exclude only SDVOSB set-asides.
VA appreciates the comment. It is VA policy that SDVOSBs have
priority over VOSBs when contracting under the authority of 38 U.S.C.
8127(i). However, the intent of the evaluation preference is to provide
additional preference to veteran-owned small businesses when a
procurement is performed outside of the authority under 38 U.S.C. 8127.
This is in recognition of the requirement in 38 U.S.C. 8128(a) that
small business concerns ``owned and controlled by veterans'' have a
priority over other small businesses. 38 U.S.C. 8128(a) does not make a
distinction between SDVOSB or VOSB. Therefore, the proposed language
will remain unchanged.
In addition, this final rule also includes two technical non-
substantive changes to the proposed rule at section 815.370-4(a)(2) and
(a)(3) which will be finalized in this final rule as described below.
It updates language to comport with the FAR that was issued as FAR
Class Deviations and does not significantly change the intent or
meaning of the originally proposed language.
Technical Non-Substantive Changes to the Proposed Rule
Under section 815.370-4, Exceptions, in this final rule, two
technical corrections are made to the proposed rule language--
1. At paragraph (a)(2), the exception is corrected to remove
``humanitarian or peacekeeping'' and to add the word ``cyber'' as one
of the exceptions permitted for acquisitions to facilitate defense
against or recovery from, and to add the phrase at the end of the
sentence, ``or to support response to an emergency or major disaster.''
``Humanitarian or peacekeeping'' is removed as VA supports emergencies
or major disasters and recovery therefrom. This update comports with
two FAR Class Deviations that adds new definitions for ``Emergency,''
and ``Major Disaster,'' as well as adds ``cyber'' to the list of
actions to facilitate defense against or recovery from when referring
to the updated ``micro-purchase threshold'' and ``simplified
acquisition threshold'' amounts authorized by an existing FAR Class
Deviation and for which a FAR case is in progress. Therefore, 815.370-
4, Exceptions, paragraph (a)(2) would now read: ``(2) Acquisitions in
support of emergency operations, or to facilitate defense against or
recovery from cyber, nuclear, biological, chemical, or radiological
attack; or to support response to an emergency or major disaster;''.
2. Under paragraph (a)(3), the reference to ``VAAR 19'' is updated
to reflect a more accurate citation of ``VAAR subpart 819.70.''
[[Page 46450]]
Under section 837.7001, Solicitations provisions and contract
clauses, one technical change is made to the proposed rule language--
Under paragraph (b), the text is revised to remove a reference to
ALT VI for the clause FAR 52.216-21, Requirements. Paragraph (b) now
reads as follows: ``The contracting officer shall insert in addition to
FAR 52.216-21, Requirements, the following VA clauses in all mortuary
service solicitations and contracts:'' The rest of paragraph (b) and
section 837.7001 remain unchanged as a result of this rulemaking.
Effect of Rulemaking
Title 48, Federal Acquisition Regulations System, Chapter 8,
Department of Veterans Affairs, of the Code of Federal Regulations, as
proposed to be revised by this rulemaking, would represent VA's
implementation of its legal authority and publication of the Department
of Veterans Affairs Acquisition Regulation (VAAR) for the cited
applicable parts. Other than future amendments to this rule or
governing statutes for the cited applicable parts, or as otherwise
authorized by approved deviations or waivers in accordance with FAR
subpart 1.4, Deviations from the FAR, and as implemented by VAAR
subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or
procedures would be authorized. All existing or subsequent VA guidance
would be read to conform with the rulemaking if possible or, if not
possible, such guidance would be superseded by this rulemaking as
pertains to the cited applicable VAAR parts.
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, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits
of reducing costs, of harmonizing rules, and of promoting flexibility.
E.O. 12866, Regulatory Planning and Review defines ``significant
regulatory action'' to mean any regulatory action that is likely to
result in a rule that may: ``(1) Have an annual effect on the economy
of $100 million or more or adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
Governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.''
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 final rule is
not an E.O. 13771 regulatory action because this rule is not
significant under E.O. 12866.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires
that VA consider the impact of paperwork and other information
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi).
This final rule amends one information collection requirement and
imposes one new information collection requirement. Accordingly, under
44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to
OMB for its review.
Under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-
3521), a current collection of information, OMB No. 2900-0590, that
will now be contained in part 837 at section 837.403-70 and in part 852
at section 852.237-70, was revised as set forth in the SUPPLEMENTARY
INFORMATION portion of this final rule. The clause number that appears
in the table at 801.106 is also revised accordingly.
Summary of collection of information:
This final rule contains provisions constituting an existing
information collection at 48 CFR 837.403 and 852.237-7, under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521)
and has been assigned OMB control number 2900-0590. This final rule
revises 837.403 to renumber it as 837.403-70, to retitle it as ``VA
contract clauses,'' and to renumber the clause as 852.237-70 while
retaining the title, ``Indemnification and Medical Liability
Insurance.''
Clause 852.237-70 is used in lieu of FAR clause 52.237-7,
Indemnification and Medical Liability Insurance, in solicitations and
contracts for the acquisition of non-personal health care services. It
requires the apparent successful bidder/offeror, upon the request of
the contracting officer, prior to contract award, to furnish evidence
of insurability of the offeror and/or all health-care providers who
will perform under the contract. In addition, the clause requires the
contractor, prior to commencement of services under the contract, to
provide Certificates of Insurance or insurance policies evidencing that
the firm possesses the types and amounts of insurance required by the
solicitation. This final rule modifies the collection to require the
contractor to notify the contracting officer within five days of
becoming aware of a change in insurance providers during the
performance period of this contract for all health-care providers
performing under this contract, and to provide to the contracting
officer evidence of such insurance for any subcontractor at least five
days before commencement of work by that subcontractor.
Description of need for information and proposed use of
information:
The information is required in order to protect VA by ensuring that
the firm to which award may be made and the individuals who may provide
health care services under the contract are insurable and that,
following award, the contractor and its employees will continue to
possess the types and amounts of insurance required by the
solicitation. It helps ensure that VA will not be held liable for any
negligent acts of the contractor or its employees and ensures that VA
and VA beneficiaries will be protected by adequate insurance coverage.
The clause number is changed to 852.237-70 to conform to the FAR
guidance for numbering of clauses. The burden imposed by this
collection remains unchanged as follows:
Estimated number of respondents annually: 1,500.
Estimated frequency of responses: One response for each contract to
be awarded.
Estimated average burden per collection: 30 minutes.
Estimate of the total annual hour burden of the collection of
information: 750 hours.
[[Page 46451]]
Annual cost to all respondents: $15,000 (at $20 per hour, based on
our belief that the majority of the labor effort would be clerical
similar to GS-5).
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), a
new collection of information is prescribed, under OMB No. 2900-0863,
that is contained in Part 837 at section 837.403-70 (d) and Part 852 at
clause 852.237-73, as set forth in the SUPPLEMENTARY INFORMATION
portion of this final rule. The clause number and the OMB clearance
number are added to the table at 801.106.
Summary of collection of information:
Under the Crime Control Act of 1990 (42 U.S.C. 13041), each agency
of the Federal Government, and every facility operated by the Federal
Government, or operated under contract with the Federal Government,
that hires, or contracts for hire, individuals involved with the
provision of child care services to children under the age of 18 shall
assure that all existing and newly-hired employees undergo a criminal
history background check.
New VAAR clause 852.237-73, Crime Control Act--Requirement for
Background Checks, is required in all solicitations, contracts, and
orders that involve providing child care services to children under the
age of 18, including social services, health and mental health care,
child-(day) care, education (whether or not directly involved in
teaching), and rehabilitative programs covered under the statute.
Description of need for information and use of information:
The contract clause requires the contractor to perform the
background checks on behalf of VA to assure the safety of children
under the age of 18 that are recipients of services under a VA program.
It is intended to assure their safety by avoiding hiring individuals
with a history of criminal acts and especially acts of child abuse. The
following estimated annual burden has been revised and reduced from
that in the proposed rule based on contract data from the last three
fiscal years which reflect a pool of awarded contracts which include
child care services to arrive at a revised estimated annual burden
amount. In the proposed rule, the estimated number of respondents
annually were based on health service contracts awarded, whereas in
this final rule, the estimated number of respondents was calculated
based on contracts awarded under NAICS codes associated with child care
services. An average of 10 responses per contract is a reasonable
estimate for an awarded child care services contract.
Estimated number of respondents annually: 150.
Estimated frequency of responses: 10 per contract awarded.
Estimated average burden per collection: 1 hour.
Estimate of the total annual hour burden of the collection of
information: 1,500 hours.
Annual cost to all respondents: $74,550 ($49.70 rate including
fringe benefits and assuming Bureau of Labor Statistics wage code 11-
3011, Administrative Services Managers.)
This clause enables the VA to be in compliance with the Crime
Control Act of 1990 and to protect children that are within its health
care systems.
Notice regarding this information collection requirement was posted
to the Federal Register via the preamble of Proposed Rule RIN 2900-AQ20
on September 7, 2018 (83 FR 45374) with comment period closing date of
November 6, 2018. VA didn't receive any public comments related to this
information collection. As a result, OMB issued a tentative control
number 2900-0863 to this new information collection to be used for
final rule publication. After the publication of this final rule, VA
will resubmit this information collection (2900-0863) to OMB for its
final approval.
Regulatory Flexibility Act
This final rule does 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. The overall impact of the
rule is 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 cost impact to individual
business will result from these rule updates. On this basis, the final
rule does 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. Therefore, under 5 U.S.C. 605(b),
this regulatory action is exempt from the initial and final regulatory
flexibility analysis requirements of sections 603 and 604.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal Governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule will have no such effect on
State, local, and tribal Governments or on the private sector.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
List of Subjects
48 CFR Part 801
Administrative practice and procedure.
48 CFR Parts 815, 816, 837, and 849
Government procurement.
48 CFR Part 852
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 871
Government procurement, Loan programs--social programs, Loan
programs--veterans, Reporting and recordkeeping requirements,
Vocational rehabilitation.
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. Robert L.
Wilkie, Secretary, Department of Veterans Affairs, approved this
document on July 25, 2019, for publication.
Dated: August 14, 2019.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy &
Management, Office of the Secretary, Department of Veterans Affairs.
For the reasons set out in the preamble, VA revises 48 CFR parts
801, 815, 816, 837, 849, 852 and 871 as follows:
PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION
SYSTEM
0
1. The authority citation for part 801 continues to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121; 42 U.S.C. 1303; 41
U.S.C. 1702; and 48 CFR 1.301-1.304.
[[Page 46452]]
Subpart 801.1--Purpose, Authority, Issuance
0
2. Revise the table in section 801.106 to read as follows:
801.106 OMB approval under the Paperwork Reduction Act.
* * * * *
----------------------------------------------------------------------------------------------------------------
48 CFR part or
Current OMB section where Current OMB
48 CFR part or section where identified and described control No. identified and No.
described
----------------------------------------------------------------------------------------------------------------
809.106-1....................................................... 2900-0418 852.228-71 2900-0590
809.504(d)...................................................... 2900-0418 852.232-70-852 2900-0422
.232-71
813............................................................. 2900-0393 852.236-72 2900-0422
832.202-4....................................................... 2900-0688 852.236-79 2900-0208
836.606-71...................................................... 2900-0208 852.236-80 2900-0422
(Alt. I)
852.207-70...................................................... 2900-0590 852.236-88 2900-0422
852.209-70...................................................... 2900-0418 852.237-70 2900-0590
852.211-70...................................................... 2900-0587 852.237-73 2900-0863
852.211-72...................................................... 2900-0586 852.246-76 2900-0589
852.270-3 2900-0589
----------------------------------------------------------------------------------------------------------------
PART 815--CONTRACTING BY NEGOTIATION
0
3. The authority citation for part 815 is revised to read as follows:
Authority: 38 U.S.C. 8127 and 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.
Subpart 815.3--Source Selection
815.303 [Removed]
0
4. Section 815.303 is removed.
815.304 [Removed]
0
5. Section 815.304 is removed.
0
6. Section 815.304-70 is revised to read as follows:
815.304-70 Evaluation factor commitments.
Contracting officers shall--
(a) Include the clause at 852.215-70, Service-Disabled Veteran-
Owned Small Business and Veteran-Owned Small Business Evaluation
Factors, in negotiated solicitations and contracts giving preference to
offers received from VOSBs and additional preference to offers received
from SDVOSBs;
(b) Use past performance in meeting SDVOSB subcontracting goals as
a non-price evaluation factor in making award determination; and
(c) Use the proposed inclusion of SDVOSBs or VOSBs as
subcontractors as an evaluation factor when competitively negotiating
the award of contracts or task or delivery orders.
0
7. Section 815.304-71 is revised to read as follows:
815.304-71 Solicitation provision and clause.
(a) The contracting officer shall insert the clause at 852.215-70,
Service-Disabled Veteran-Owned Small Business and Veteran-Owned Small
Business Evaluation Factors, in competitively negotiated solicitations
and contracts that are not set aside for SDVOSBs or VOSBs.
(b) The contracting officer shall insert the clause at 852.215-71,
Evaluation Factor Commitments, in solicitations and contracts that
include VAAR clause 852.215-70, Service-Disabled Veteran-Owned Small
Business and Veteran-Owned Small Business Evaluation Factors.
0
8. Section 815.370 is added to read as follows:
815.370 Only one offer.
0
9. Section 815.370-1 is added to read as follows:
815.370-1 Policy.
It is VA policy, if only one offer is received in response to a
competitive solicitation, to--
(a) Take action to promote competition (see 815.370-2); and
(b) Ensure that the price is fair and reasonable (see 815.370-3)
and comply with the statutory requirement for certified cost or pricing
data (see FAR 15.403-4).
0
10. Section 815.370-2 is added to read as follows:
815.370-2 Promote competition.
Except as provided in 815.370-4, if only one offer is received when
competitive procedures were used and the solicitation allowed fewer
than 30 days for receipt of proposals, the contracting officer should--
(a) Consult with the requiring activity as to whether the
requirements document should be revised in order to promote more
competition (see FAR 6.502(b) and 11.002); and
(b) Consider re-soliciting, allowing an additional period of at
least 30 days for receipt of proposals.
0
11. Section 815.370-3 is added to read as follows:
815.370-3 Fair and reasonable price.
(a) If there was ``reasonable expectation that two or more
offerors, competing independently, would submit priced offers'' but
only one offer is received, this circumstance does not constitute
adequate price competition unless an official at a level above the
contracting officer approves the determination that the price is
reasonable (see FAR 15.403-1(c)(1)(ii)).
(b) Except as provided in 815.370-4(a), if only one offer is
received when competitive procedures were used and the solicitation
allowed at least 30 days for receipt of proposals (unless the 30-day
requirement is not applicable in accordance with 815.370-4(a)(3)), the
contracting officer shall--
(1) Determine through cost or price analysis that the offered price
is fair and reasonable and that adequate price competition exists (with
approval of the determination at a level above the contracting officer)
or another exception to the requirement for certified cost or pricing
data applies (see FAR 15.403-1(c) and 15.403-4). In these
circumstances, no further cost or pricing data is required; or
(2)(i) Obtain from the offeror cost or pricing data necessary to
determine a
[[Page 46453]]
fair and reasonable price and comply with the requirement for certified
cost or pricing data at FAR 15.403-4. For acquisitions that exceed the
cost or pricing data threshold, if no exception at FAR 15.403-1(b)
applies, the cost or pricing data shall be certified; and
(ii) Enter into negotiations with the offeror as necessary to
establish a fair and reasonable price. The negotiated price should not
exceed the offered price.
0
12. Section 815.370-4 is added to read as follows:
815.370-4 Exceptions.
(a) The requirements at 815.370-2 do not apply to--
(1) Acquisitions at or below the simplified acquisition threshold;
(2) Acquisitions in support of emergency, humanitarian or
peacekeeping operations, or to facilitate defense against or recovery
from cyber, nuclear, biological, chemical, or radiological attack; or
to support response to an emergency or major disaster;
(3) Small business set-asides under FAR subpart 19.5, set-asides
offered and accepted into the 8(a) Program under FAR subpart 19.8, or
set-asides under the HUBZone Program (see FAR 19.1305(c)), the VA Small
Business Program (see VAAR subpart 819.70), or the Women-Owned Small
Business Program (see FAR 19.1505(d));
(4) Acquisitions of basic or applied research or development, as
specified in FAR 35.016(a), that use a broad agency announcement; or
(5) Acquisitions of architect-engineer services (see FAR 36.601-2).
(b) The applicability of an exception in paragraph (a) of this
section does not eliminate the need for the contracting officer to
ensure adequate time for competition is allotted or that the price is
fair and reasonable.
0
13. Section 815.370-5 is added to read as follows:
815.370-5 Solicitation provision.
Use the provision at 852.215-72, Notice of Intent to Re-solicit, in
competitive solicitations, including solicitations using FAR part 12
procedures for the acquisition of commercial items that will be
solicited for fewer than 30 days, unless an exception at 815.370-4
applies.
Subpart 815.4 [Removed and Reserved]
0
14. Subpart 815.4, consisting of sections 815.404, 815.404-1, and
815.404-2, is removed and reserved.
Subpart 815.6 [Removed and Reserved]
0
15. Subpart 815.6, consisting of sections 815.604, 815.606, and
815.606-1, is removed and reserved.
PART 816--TYPES OF CONTRACTS
0
16. The authority citation for part 816 is revised 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 through 1.304.
Subpart 816.5--Indefinite-Delivery Contracts
0
17. Section 816.506-70 is added to read as follows:
816.506-70 Requirements--supplement for mortuary services.
Insert the clause 852.216-76, Requirements--Supplement for Mortuary
Services, in contracts for mortuary services containing FAR clause
52.216-21, Requirements. The contracting officer shall insert
activities authorized to place orders in paragraph (e) of the clause.
PART 837--SERVICE CONTRACTING
0
18. The authority citation for part 837 is revised to read as follows:
Authority: Pub. L. 101-647; 20 U.S.C. 7181-7183; 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.
Subpart 837.1--Service Contracts--General
837.103 [Removed]
0
19. Section 837.103 is removed.
837.110 [Removed]
0
20. Section 837.110 is removed.
0
21. Section 837.110-70 is revised to read as follows:
837.110-70 VA solicitation provisions and contract clauses.
(a) Contracting officers shall include the clause at 852.237-74,
Non-Discrimination in Service Delivery, in all solicitations and
contracts covering services provided to eligible beneficiaries.
(b) The contracting officer shall insert the clause at 852.237-75,
Key Personnel, in solicitations and contracts when the contracting
officer will require the contractor to designate contractor key
personnel.
Subpart 837.2 [Removed and Reserved]
0
22. Subpart 837.2, consisting of section 837.203, is removed and
reserved.
Subpart 837.4--Nonpersonal Health Care Services
837.403 [Redesignated as 837.403-70 and Amended]
0
23. Section 837.403 is redesignated as 837.403-70 and the newly
redesignated section is revised to read as follows:
837.403-70 VA contract clauses.
(a) The contracting officer shall insert the clause at 852.237-70,
Indemnification and Medical Liability Insurance, in lieu of FAR clause
52.237-7, in solicitations and contracts for nonpersonal health care
services, including contracts awarded under the authority of 38 U.S.C.
7409, 38 U.S.C. 8151-8153, and part 873. The contracting officer may
include the clause in bilateral purchase orders for nonpersonal health
care services awarded under the procedures in FAR part 13 and part 813.
(b) The contracting officer shall insert the clause at 852.237-71,
Nonsmoking Policy for Children's Services, in solicitations, contracts,
and orders that involve health or daycare services that are provided to
children under the age of 18 on a routine or regular basis pursuant to
the Nonsmoking Policy for Children's Services (20 U.S.C. 6081-6084).
(c) The contracting officer shall insert the clause at 852.237-72,
Crime Control Act--Reporting of Child Abuse, in solicitations,
contracts, and orders that require performance on Federal land or in a
federally operated (or contracted) facility and involve the
professions/activities performed by persons specified in the Crime
Control Act of 1990 (42 U.S.C. 13031) including, but not limited to,
teachers, social workers, physicians, nurses, dentists, health care
practitioners, optometrists, psychologists, emergency medical
technicians, alcohol or drug treatment personnel, child care workers
and administrators, emergency medical technicians and ambulance
drivers.
(d) The contracting officer shall insert the clause at 852.237-73,
Crime Control Act--Requirement for Background Checks, in solicitations,
contracts, and orders that involve providing child care services to
children under the age of 18, including social services, health and
mental health care, child- (day) care, education (whether or not
directly involved in teaching), and rehabilitative
[[Page 46454]]
programs covered under the Crime Control Act of 1990 (42 U.S.C. 13041).
Subpart 837.70--Mortuary Services
0
24. Section 837.7000 is added to read as follows:
837.7000 Scope.
This subpart applies to mortuary (funeral and burial) services for
beneficiaries of VA as provided in 38 U.S.C. 2302, 2303, and 2308 when
it is determined that a contract would be the most efficient and
effective method. Contract payment terms for use of the purchase card
as a method of payment should also be considered.
0
25. Section 837.7001 is revised to read as follows:
837.7001 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert the basic or the alternate
of the provision at 852.237-76, Award to Single Offeror, in
solicitations and contracts for mortuary services as follows:
(1) Insert the provision in all sealed bid solicitations for
mortuary services; and
(2) Insert the basic provision with its alternate I in all
negotiated solicitations for mortuary services.
(b) The contracting officer shall insert in addition to FAR 52.216-
21, Requirements, the following VA clauses in all mortuary service
solicitations and contracts:
(1) 852.237-77, Area of Performance.
(2) 852.237-78, Performance and Delivery.
(3) 852.237-79, Subcontracting.
(4) 852.237-80, Health Department and Transport Permits.
(c) See also 816.506-70 and 849.504-70 for additional clauses for
use in contracts for mortuary services.
837.7002 [Removed]
0
26. Section 837.7002 is removed.
837.7003 [Removed]
0
27. Section 837.7003 is removed.
837.7004 [Removed]
0
28. Section 837.7004 is removed.
837.7005 [Removed]
0
29. Section 837.7005 is removed.
PART 849--TERMINATION OF CONTRACTS
0
30. The authority citation for part 849 is revised 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 through 1.304.
0
31. Subpart 849.5 is added to read as follows:
Subpart 849.5--Contract Termination Clauses
849.504 Termination of fixed-price contracts for default.
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. This clause is to be used with FAR clause 52.249-8, Default
(Fixed-Price Supply and Service).
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
32. The authority citation for part 852 is revised 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--Texts of Provisions and Clauses
0
33. Section 852.215-70 is revised to read as follows:
852.215-70 Service-Disabled Veteran-Owned and Veteran-Owned Small
Business Evaluation Factors.
As prescribed in 815.304-71(a), insert the following clause:
Service-Disabled Veteran-Owned and Veteran-Owned Small Business
Evaluation Factors (OCT 2019)
(a) In an effort to achieve socioeconomic small business goals,
VA shall evaluate offerors based on their service-disabled veteran-
owned or veteran-owned small business status and their proposed use
of eligible service-disabled veteran-owned small businesses
(SDVOSBs) and veteran-owned small businesses (VOSBs) as
subcontractors.
(b) Eligible service-disabled veteran-owned small businesses
offerors will receive full credit, and offerors qualifying as
veteran-owned small businesses will receive partial credit for the
Service-Disabled Veteran-Owned and Veteran-Owned Small Business
Status evaluation factor. To receive credit, an offeror must be
registered and verified in the Vendor Information Pages (VIP)
database.
(c) Non-Veteran offerors proposing to use SDVOSBs or VOSBs as
subcontractors will receive some consideration under this evaluation
factor. Offerors must state in their proposals the names of the
SDVOSBs and VOSBs with whom they intend to subcontract and provide a
brief description of the proposed subcontracts and the approximate
dollar values of the proposed subcontracts. In addition, the
proposed subcontractors must be registered and verified in the VIP
database.
(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/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
34. Section 852.15-71 is revised to read as follows:
852.215-71 Evaluation Factor Commitments.
As prescribed in 815.304-71(b), insert the following clause:
Evaluation Factor Commitments (OCT 2019)
(a) The offeror agrees, if awarded a contract, to use the
service-disabled veteran-owned small businesses (SDVOSBs) or
veteran-owned small businesses (VOSBs) proposed as subcontractors in
accordance with 852.215-70, Service-Disabled Veteran-Owned and
Veteran-Owned Small Business Evaluation Factors, or to substitute
one or more SDVOSBs or VOSBs for subcontract work of the same or
similar value.
(b) 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
35. Section 852.215-72 is added to read as follows:
852.215-72 Notice of Intent to Re-Solicit.
As prescribed at 815.370-5, use the following provision:
Notice of Intent to Re-Solicit (OCT 2019)
This solicitation provides offerors fewer than 30 days to submit
proposals. In the event that only one offer is received in response
to this solicitation, the Contracting Officer may cancel the
solicitation and re-solicit for an additional period of at least 30
days in accordance with 815.370-2.
(End of provision)
0
36. Section 852.216-71 is amended by revising the section heading and
clause heading to read as follows:
852.216-71 Economic Price Adjustment of Contract Price(s) Based on a
Price Index.
* * * * *
Economic Price Adjustment of Contract Price(s) Based on a Price Index
(MAR 2018)
* * * * *
0
37. Section 852.216-72 is amended by revising the section heading and
clause heading to read as follows:
[[Page 46455]]
852.216-72 Proportional Economic Price Adjustment of Contract
Price(s) Based on a Price Index.
* * * * *
Proportional Economic Price Adjustment of Contract Price(S) Based on a
Price Index (MAR 2018)
* * * * *
0
38. Section 852.216-73 is amended by revising the section heading and
clause heading to read as follows:
852.216-73 Economic Price Adjustment--State Nursing Home Care for
Veterans.
* * * * *
Economic Price Adjustment--State Nursing Home Care for Veterans (Mar
2018)
* * * * *
0
39. Section 852.216-74 is amended by revising the section heading and
clause heading to read as follows:
852.216-74 Economic Price Adjustment--Medicaid Labor Rates.
* * * * *
Economic Price Adjustment--Medicaid Labor Rates (Mar 2018)
* * * * *
0
40. Section 852.216-75 is amended by revising the section heading and
clause heading to read as follows:
852.216-75 Economic Price Adjustment-Fuel Surcharge.
* * * * *
Economic Price Adjustment--Fuel Surcharge (Mar 2018)
* * * * *
0
41. Section 852.216-76 is added to read as follows:
852.216-76 Requirements--Supplement for Mortuary Services.
As prescribed in 816.506-70, insert the following clause:
Requirements--Supplement for Mortuary Services (Oct 2019)
(a) Except as provided in paragraphs (c) and (d) of this clause,
the Government will order from the Contractor all of its
requirements in the area of performance for the supplies and
services listed in the schedule of this contract.
(b) Each order will be issued as a delivery order and will
list--
(1) The supplies or services being ordered;
(2) The quantities to be furnished;
(3) Delivery or performance dates;
(4) Place of delivery or performance;
(5) Packing and shipping instructions;
(6) The address to send invoices; and
(7) The funds from which payment will be made.
(c) The Government may elect not to order supplies and services
under this contract in instances where the body is removed from the
area for medical, scientific, or other reason.
(d) In an epidemic or other emergency, the contracting activity
may obtain services beyond the capacity of the Contractor's
facilities from other sources.
(e) Contracting Officers of the following activities may order
services and supplies under this contract:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(End of clause)
0
42. Section 852.228-71 is amended by revising the section heading and
clause heading to read as follows:
852.228-71 Indemnification and Insurance.
* * * * *
Indemnification and Insurance (Mar 2018)
* * * * *
0
43. Section 852.228-73 is amended by revising the section heading and
clause heading to read as follows:
852.228-73 Indemnification of Contractor--Hazardous Research
Projects.l
* * * * *
Indemnification of Contractor--Hazardous Research Projects (Mar 2018)
* * * * *
852.237-70 [Removed]
0
44. Section 852.237-70 is removed.
852.237-7 [Redesignated as 852.237-70 and Amended]
0
45. Section 852.237-7 is redesignated as section 852.237-70 and the
newly redesignated section is revised to read as follows:
852.237-70 Indemnification and Medical Liability Insurance.
As prescribed in 837.403-70(a), insert the following clause:
Indemnification and Medical Liability Insurance (Oct 2019)
(a) It is expressly agreed and understood that this is a non-
personal services contract, as defined in Federal Acquisition
Regulation (FAR) 37.101, under which the professional services
rendered by the Contractor or its health-care providers are rendered
in its capacity as an independent contractor. The Government may
evaluate the quality of professional and administrative services
provided but retains no control over professional aspects of the
services rendered including, by example, the Contractor's or its
health-care providers' professional medical judgment, diagnosis, or
specific medical treatments. The Contractor and its health-care
providers shall be liable for their liability-producing acts or
omissions. The Contractor shall maintain or require all health-care
providers performing under this contract to maintain, during the
term of this contract, professional liability insurance issued by a
responsible insurance carrier of not less than the following
amount(s) per specialty per occurrence: [Contracting Officer's Note:
Insert the dollar amount value(s) of standard coverage(s) prevailing
within the local community as to the specific medical specialty, or
specialties, concerned, or such higher amount as the Contracting
Officer deems necessary to protect the Government's interests.]
However, if the Contractor is an entity or a subdivision of a State
that either provides for self-insurance or limits the liability or
the amount of insurance purchased by State entities, then the
insurance requirement of this contract shall be fulfilled by
incorporating the provisions of the applicable State law.
(b) An apparently successful offeror, upon request of the
Contracting Officer, shall, prior to contract award, furnish
evidence of the insurability of the offeror and/or of all health-
care providers who will perform under this contract. The submission
shall provide evidence of insurability concerning the medical
liability insurance required by paragraph (a) of this clause or the
provisions of State law as to self-insurance, or limitations on
liability or insurance.
(c) The Contractor shall, prior to commencement of services
under the contract, provide to the Contracting Officer Certificates
of Insurance or insurance policies evidencing the required insurance
coverage and an endorsement stating that any cancellation or
material change adversely affecting the Government's interest shall
not be effective until 30 days after the insurer or the Contractor
gives written notice to the Contracting Officer. Certificates or
policies shall be provided for the Contractor and/or each health-
care provider who will perform under this contract.
(d) The Contractor shall notify the Contracting Officer within 5
days of becoming aware of a change in insurance providers during the
performance period of this contract for all health-care providers
performing under this contract. The notification shall provide
evidence that the Contractor and/or health-care providers will meet
all the requirements of this clause, including those concerning
liability insurance and endorsements. These requirements may be met
either under the new policy, or a combination of old and new
policies, if applicable.
(e) The Contractor shall insert the substance of this clause,
including this paragraph (e), in all subcontracts for health-care
services under this contract. The Contractor shall be responsible
for compliance by any subcontractor or lower-tier subcontractor with
the provisions set forth in paragraph (a) of this clause. At least 5
days before the commencement of work by any subcontractor, the
Contractor shall furnish to the Contracting Officer evidence of such
insurance.
(End of clause)
0
46. Section 852.237-71 is added to read as follows:
[[Page 46456]]
852.237-71 Nonsmoking Policy for Children's Services.
As prescribed in 837.403-70(b), insert the following clause:
Nonsmoking Policy for Children's Services (Oct 2019)
(a) Smoking in facilities where certain federally funded
children's services are provided shall be prohibited. The Pro-
Children Act of 2001 (20 U.S.C. 7181-7183) prohibits smoking within
any indoor facility (or portion thereof), whether owned, leased, or
contracted for, that is used for the routine or regular provision of
health or day care services that are provided to children under the
age of 18. The statutory prohibition also applies to indoor
facilities that are constructed, operated, or maintained with
Federal funds.
(b) By acceptance of this contract or order, the Contractor
agrees to comply with the requirements of the Act. The Act also
applies to all subcontracts awarded under this contract for the
specified children's services. Accordingly, the Contractor shall
ensure that each of its employees, and any subcontractor staff, is
made aware of, understands, and complies with the provisions of the
Act. Failure to comply with the Act may result in the imposition of
a civil monetary penalty in an amount not to exceed $1,000 for each
violation and/or the imposition of an administrative compliance
order on the responsible entity. Each day a violation continues
constitutes a separate violation.
(End of clause)
0
47. Section 852.237-72 is added to read as follows:
852.237-72 Crime Control Act--Reporting of Child Abuse.
As prescribed in 837.403-70(c), insert the following clause:
Crime Control Act--Reporting of Child Abuse (Oct 2019)
(a) Public Law 101-647, also known as the Crime Control Act of
1990 (Act), imposes responsibilities on certain individuals who,
while engaged in a professional capacity or activity, as defined in
the Act, on Federal land or in a federally-operated (or contracted)
facility, learn of facts that give the individual reason to suspect
that a child has suffered an incident of child abuse.
(b) The Contractor shall comply with the requirements of the
Act. The Act also applies to all applicable subcontracts awarded
under this contract. Accordingly, the Contractor shall ensure that
each of its employees, and any subcontractor staff, is made aware
of, understands, and complies with the provisions of the Act.
(End of clause)
0
48. Section 852.237-73 is added to read as follows:
852.237-73 Crime Control Act--Requirement for Background Checks.
As prescribed in 837.403-70(d), insert the following clause:
Crime Control Act--Requirement for Background Checks (Oct 2019)
(a) Public Law 101-647, also known as the Crime Control Act of
1990 (Act), requires that all individuals involved with the
provision of child care services, as defined in the Act, to children
under the age of 18 undergo a criminal background check.
(b) The Contracting Officer will provide the necessary
information to the Contractor regarding the process for obtaining
the background check. The Contractor may hire a staff person
provisionally prior to the completion of a background check, if at
all times prior to the receipt of the background check during which
children are in the care of the newly-hired person, the person is
within the sight and under the supervision of a previously
investigated staff person.
(c) The Contractor shall comply with the requirements of the
Act. The Act also applies to all applicable subcontracts awarded
under the contract. Accordingly, the Contractor shall ensure that
each of its employees, and any subcontractor staff, is made aware
of, understands, and complies with the provisions of the Act.
(End of clause)
0
49. Section 852.237-74 is added to read as follows:
852.237-74 Non-Discrimination in Service Delivery.
As prescribed in 837.110-70(a), the Contracting Officer shall
insert the following clause in solicitations and contracts:
Non-Discrimination in Service Delivery (Oct 2019)
It is the policy of the Department of Veterans Affairs that no
person otherwise eligible will be excluded from participation in,
denied the benefits of, or subjected to discrimination in the
administration of VA programs and services based on non-merit
factors such as race, color, national origin, religion, sex, gender
identity, sexual orientation, or disability (physical or mental). By
acceptance of this contract, the Contractor agrees to comply with
this policy in supporting the program and in performing the services
called for under this contract. The Contractor shall include this
clause in all subcontracts awarded under this contract for
supporting or performing the specified program and services.
Accordingly, the Contractor shall ensure that each of its employees,
and any subcontractor staff, is made aware of, understands, and
complies with this policy.
(End of clause)
0
50. Section 852.237-75 is added to read as follows:
852.237-75 Key Personnel.
As prescribed in 837.110-70(b), insert the following clause:
Key Personnel (Oct 2019)
The key personnel specified in this contract are considered to
be essential to work performance. At least 30 days prior to the
Contractor voluntarily diverting any of the specified individuals to
other programs or contracts the Contractor shall notify the
Contracting Officer and shall submit a justification for the
diversion or replacement and a request to replace the individual.
The request must identify the proposed replacement and provide an
explanation of how the replacement's skills, experience, and
credentials meet or exceed the requirements of the contract. If the
employee of the Contractor is terminated for cause or separates from
the contractor voluntarily with less than thirty days notice, the
Contractor shall provide the maximum notice practicable under the
circumstances. The Contractor shall not divert, replace, or announce
any such change to key personnel without the written consent of the
Contracting Officer. The contract will be modified to add or delete
key personnel as necessary to reflect the agreement of the parties.
(End of clause)
0
51. Section 852.237-76 is added to read as follows:
852.237-76 Award to Single Offeror.
As prescribed in 837.7001(a)(1), insert the following provision:
Award to Single Offeror (Oct 2019)
(a) Award shall be made to a single offeror.
(b) Offerors shall include unit prices for each item. Failure to
include unit prices for each item will be cause for rejection of the
entire offer.
(c) The Government will evaluate offers on the basis of the
estimated quantities shown.
(d) Award will be made to that responsive, responsible offeror
whose total aggregate offer is the lowest price to the Government.
(End of provision)
Alternate I (OCT 2019). As prescribed in 837.7001(a)(2), insert the
following paragraph (d) in lieu of paragraph (d) of the basic
provision:
(d) Award will be made to that responsive, responsible offeror
whose total aggregate offer is in the best interest of the Government.
0
52. Section 852.237-77 is added to read as follows:
852.237-77 Area of Performance.
As prescribed in 837.7001(b)(1), insert the following clause:
Area of Performance (Oct 2019)
(a) The area of performance is as specified in the contract.
(b) The Contractor shall take possession of the remains at the
place where they are located, transport them to the Contractor's
place of preparation, and later transport them to a place designated
by the Contracting Officer.
(c) The Contractor will not be reimbursed for transportation
when both the place where the remains were located and the delivery
point are within the area of performance.
(d) If remains are located outside the area of performance, the
Contracting Officer may
[[Page 46457]]
place an order with the Contractor under this contract or may obtain
the services elsewhere. If the Contracting Officer requires the
Contractor to transport the remains into the area of performance,
the Contractor shall be paid the amount per mile in the schedule for
the number of miles required to transport the remains by a
reasonable route from the point where located to the boundary of the
area of performance.
(e) The Contracting Officer may require the Contractor to
deliver remains to any point within 100 miles of the area of
performance. In this case, the Contractor shall be paid the amount
per mile in the schedule for the number of miles required to
transport the remains by a reasonable route from the boundary of the
area of performance to the delivery point.
(End of clause)
0
53. Section 852.237-78 is added to read as follows:
852.237-78 Performance and Delivery.
As prescribed in 837.7001(b)(2), insert the following clause:
Performance and Delivery (Oct 2019)
(a) The Contractor shall furnish the material ordered and
perform the services specified as promptly as possible, but not
later than 36 hours after receiving notification to remove the
remains, excluding the time necessary for the Government to inspect
and check results of preparation.
(b) The Government may, at no additional charge, require the
Contractor to hold the remains for an additional period not to
exceed 72 hours from the time the remains are casketed and final
inspection is completed.
(End of clause)
0
54. Section 852.237-79 is added to read as follows:
852.237-79 Subcontracting.
As prescribed in 837.7001(b)(3), insert the following clause:
Subcontracting (Oct 2019)
The Contractor shall not subcontract any work under this
contract without the Contracting Officer's written approval. This
clause does not apply to contracts of employment between the
Contractor and its personnel.
(End of clause)
0
55. Section 852.237-80 is added to read as follows:
852.237-80 Health Department and Transport Permits.
As prescribed in 837.7001(b)(4), insert the following clause:
Health Department and Transport Permits (Oct 2019)
The Contractor shall meet all State and local licensing
requirements and obtain and furnish all necessary health department
and shipping permits at no additional cost to the Government. The
Contractor shall ensure that all necessary health department permits
are in order for disposition of the remains.
(End of clause)
0
56. Section 852.249-70 is added 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 (Oct 2019)
The clause entitled ``Default'' in FAR 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)
852.271-70 [Removed and Reserved]
0
57. Section 852.271-70 is removed and reserved.
PART 871--LOAN GUARANTY AND VOCATIONAL REHABILITATION AND
EMPLOYMENT PROGRAMS
0
58. The authority citation for part 871 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.
Subpart 871.2--Vocational Rehabilitation and Employment Service
0
59. Section 871.212 is revised to read as follows:
871.212 Contract clauses.
(a) Contracting officers shall use the following clauses, as
appropriate, in solicitations and contracts for vocational
rehabilitation and employment services as they pertain to training and
rehabilitation services and contracts for counseling services:
(1) 852.271-72, Time Spent by Counselee in Counseling Process.
(2) 852.271-73, Use and Publication of Counseling Results.
(3) 852.271-74, Inspection.
(4) 852.271-75, Extension of Contract Period.
(b) See 837.110-70(a) for clause 852.237-74, Non-Discrimination in
Service Delivery.
[FR Doc. 2019-17824 Filed 9-3-19; 8:45 am]
BILLING CODE 8320-01-P
