VA Acquisition Regulation: Contractor Qualifications; Acquisition of Utility Services; and Contract Administration and Audit Services
| Citation | 85 FR 60073 |
| Record Number | 2020-18172 |
| Published date | 24 September 2020 |
| Section | Rules and Regulations |
| Court | Veterans Affairs Department |
60073
Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations
DEPARTMENT OF VETERANS
AFFAIRS
48 CFR Parts 802, 809, 841, 842, and
852
RIN 2900–AQ38
VA Acquisition Regulation: Contractor
Qualifications; Acquisition of Utility
Services; and Contract Administration
and Audit Services
AGENCY
: Department of Veterans Affairs.
ACTION
: Final rule.
SUMMARY
: The Department of Veterans
Affairs (VA) is amending and updating
its VA Acquisition Regulation (VAAR)
in phased increments to revise or
remove any policy superseded by
changes in the Federal Acquisition
Regulation (FAR), to remove procedural
guidance internal to VA into the VA
Acquisition Manual (VAAM), and to
incorporate any new agency specific
regulations or policies. These changes
seek to streamline and align the VAAR
with the FAR and remove outdated and
duplicative requirements and reduce
burden on contractors. The VAAM
incorporates portions of the removed
VAAR as well as other internal agency
acquisition policy. VA will rewrite
certain parts of the VAAR and VAAM,
and as VAAR parts are rewritten, VA
will publish them in the Federal
Register. In particular, this rulemaking
revises VAAR concerning Contractor
Qualifications, Acquisition of Utility
Services, and Contract Administration
and Audit Services, and affected parts
Definitions of Words and Terms and
Solicitation Provisions and Contract
Clauses.
DATES
: This rule is effective on October
26, 2020.
FOR FURTHER INFORMATION CONTACT
: Mr.
Rafael Taylor, Senior Procurement
Analyst, Procurement Policy and
Warrant Management Services, 003A2A,
425 I Street NW, Washington, DC 20001,
(202) 382–2787. (This is not a toll-free
number.)
SUPPLEMENTARY INFORMATION
:
Background
On April 20, 2020, VA published a
proposed rule in the Federal Register
(85 FR 21811) which announced VA’s
intent to amend regulations for VAAR
Case RIN 2900–AQ38 (Parts 809, 841
and 842). VA provided a 60-day
comment period for the public to
respond to the proposed rule and
submit comments. The comment period
for the proposed rule ended on June 19,
2020 and VA received no comments.
This rule adopts as a final rule, without
changes, the proposed rule published in
the Federal Register on April 20, 2020.
Executive Orders 12866, 13563 and
13771
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, when regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts; and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, reducing costs,
harmonizing rules, and promoting
flexibility. The Office of Information
and Regulatory Affairs has determined
that this rule is not a significant
regulatory action under Executive Order
12866.
VA’s impact analysis can be found as
a supporting document at http://
www.regulations.gov, usually within 48
hours after the rulemaking document is
published. Additionally, a copy of the
rulemaking and its Regulatory Impact
Analysis (RIA) are available on VA’s
website at http://www.va.gov/orpm/, by
following the link for ‘‘VA Regulations
Published from FY 2004 Through Fiscal
Year to Date.’’
This rule is not an E.O. 13771
regulatory action because this rule is not
significant under E.O. 12866.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(at 44 U.S.C. 3507) requires that VA
consider the impact of paperwork and
other information collection burdens
imposed on the public. Under 44 U.S.C.
3507(a), an agency may not collect or
sponsor the collection of information,
nor may it impose an information
collection requirement unless it
displays a currently valid OMB control
number. See also 5 CFR 1320.8(b)(3)(vi).
This final rule contains one provision
constituting a collection of information
at 48 CFR 809.507–1 and 48 CFR
852.209–70 which require offerors on
solicitations for management support
and consulting services to advise, as
part of the firm’s offer, whether or not
award of the contract to the firm might
involve a conflict of interest and, if so,
to disclose all relevant facts regarding
the conflict. The information is used by
the contracting officer to determine
whether or not to award a contract to
the firm or, if a contract is to be awarded
despite a potential conflict, whether or
not additional contract terms and
conditions are necessary to mitigate the
conflict.
No new collection of information is
associated with this provision as a part
of this final rule. The information
collection requirement for 809.507–1
and 852.209–70 is currently approved
by OMB and has been assigned OMB
control number 2900–0418. This rule
amends this information collection
requirement to revise 809.507–1 to
designate 852.209–70 as a provision
instead of a clause. For the requested
administrative amendments to VAAR
852.209–70, as required by the
Paperwork Reduction Act of 1995 (at 44
U.S.C. 3507(d)), VA will submit this
information collection amendment to
OMB for its review.
Regulatory Flexibility Act
The Secretary hereby certifies that
this final rule will not have a significant
economic impact on a substantial
number of small entities as they are
defined in the Regulatory Flexibility Act
(5 U.S.C. 601–612). This rulemaking
does not change VA’s policy regarding
small businesses, does not have an
economic impact to individual
businesses, and there are no increased
or decreased costs to small business
entities. On this basis, the final rule
would not have an economic impact on
a substantial number of small entities as
they are defined in the Regulatory
Flexibility Act, 5 U.S.C. 601–612.
Therefore, pursuant to 5 U.S.C. 605(b),
the initial and final regulatory flexibility
analysis requirements of 5 U.S.C. 603
and 604 as they do not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act
of 1995 requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of
anticipated costs and benefits before
issuing any rule that may result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector, of $100 million or more
(adjusted annually for inflation) in any
one year. This final rule will have no
such effect on State, local, and tribal
governments or on the private sector.
Congressional Review Act
Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), the Office of
Information and Regulatory Affairs
designated this rule as not a major rule,
as defined by 5 U.S.C. 804(2).
List of Subjects
48 CFR Part 802
Government procurement.
48 CFR Part 809
Government procurement, Reporting
and recordkeeping requirements.
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48 CFR Part 841
Government procurement, Utilities.
48 CFR Part 842
Accounting, Government
procurement.
48 CFR Part 852
Government procurement, Reporting
and recordkeeping requirements.
Signing Authority
The Secretary of Veterans Affairs, or
designee, approved this document and
authorized the undersigned to sign and
submit the document to the Office of the
Federal Register for publication
electronically as an official document of
the Department of Veterans Affairs.
Brooks D. Tucker, Acting Chief of Staff,
Department of Veterans Affairs,
approved this document on August 14,
2020, for publication.
Consuela Benjamin,
Regulations Development Coordinator, Office
of Regulation Policy & Management, Office
of the Secretary, Department of Veterans
Affairs.
For the reasons set out in the
preamble, VA amends 48 CFR, parts
802, 809, 841, 842 and 852 as follows:
PART 802—DEFINITIONS OF WORDS
AND TERMS
■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]
■2. Section 802.101 is amended to
remove the definitions for ‘‘Suspending
and Debarring Official (SDO)’’ and
‘‘Suspension and Debarment Committee
(S&D Committee).’’
PART 809—CONTRACTOR
QUALIFICATIONS
■3. The authority citation for part 809
is revised to read as follows:
Authority: 38 U.S.C. 8127 and 8128; 40
U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR
1.301–1.304.
Subpart 809.1—Responsible
Prospective Contractors
809.104 and 809.104–2 [Removed]
■4. Sections 809.104 and 809.104–2 are
removed.
Subpart 809.2 [Removed and
Reserved]
■5. Subpart 809.2, consisting of
sections 809.201, 809.202, 809.204,
809.206, 809.206–1, and 809.270, is
removed and reserved.
■6. Subpart 809.4 is revised to read as
follows:
Subpart 809.4—Debarment, Suspension,
and Ineligibility
Sec.
809.400 Scope of subpart.
809.402 Policy.
809.403 Definitions.
809.405 Effect of listing.
809.405–1 Continuation of current
contracts.
809.405–2 Restrictions on subcontracting.
809.406 Debarment.
809.406–1 General.
809.406–2 Causes for debarment.
809.406–270 Additional causes for
debarment.
809.406–3 Procedures.
809.406–4 Period of debarment.
809.407 Suspension.
809.407–1 General.
809.470 Fact-finding procedures.
809.400 Scope of subpart.
This subpart implements FAR subpart
9.4 and prescribes VA’s procedures and
related actions for the suspension and
debarment of contractors.
809.402 Policy.
(b) Statutory debarments pursuant to
the authority of 38 U.S.C. 8127(g),
Enforcement Penalties for
Misrepresentation, are mandatory when
the determination is made that a
business concern has willfully and
intentionally misrepresented its status
as a service-disabled, veteran-owned
small business (SDVOSB) or veteran-
owned small business (VOSB).
809.403 Definitions.
Suspension & Debarment (S&D)
Committee means a committee
authorized by the SDO to assist the SDO
with suspension and debarment related
matters.
Suspending and Debarring Official
(SDO) means the individual responsible
for final decisions regarding suspension
and debarment, as appointed by the
agency.
809.405 Effect of listing.
The authority under FAR 9.405(a),
9.405(d)(2), and 9.405(d)(3) to determine
whether to solicit from, evaluate bids or
proposals from, or award contracts to
contractors with active exclusions in the
System for Award Management (SAM)
is delegated to the Suspending and
Debarring Official (SDO). This authority
is further delegated to the HCAs, who
may delegate this authority, in writing,
to a designee.
809.405–1 Continuation of current
contracts.
(a) Notwithstanding the suspension,
proposed debarment, or debarment of a
contractor, VA may continue contracts
or subcontracts in existence at the time
the contractor was suspended, proposed
for debarment, or debarred, unless the
cognizant head of the contracting
activity (HCA) directs otherwise.
Examples of factors to be considered
include, but are not limited to, potential
costs associated with a termination,
possible disruption to VA program
objectives, and integrity of VA
acquisition programs.
(b) Authority to make the
determinations under FAR 9.405–1(b) is
delegated to the SDO and is further
delegated to the HCA, who may delegate
this authority, in writing, to a designee.
The HCA or their designee must make
a written determination of the
compelling reasons in accordance with
FAR 9.405–1(b). Compelling reasons for
the purposes of FAR 9.405–1(b) include,
but are not limited to, urgency of the
need for new or continued work,
lengthy time period to acquire the new
work from other sources and meeting
estimated quantity for requirements
contracts.
809.405–2 Restrictions on subcontracting.
Authority to make the written
determination required under FAR
9.405–2 consenting to a contractor’s use
of a subcontractor who is suspended,
proposed for debarment, or debarred is
delegated to the SDO. This authority is
further delegated to the HCA, who may
delegate this authority, in writing, to a
designee.
809.406 Debarment.
809.406–1 General.
(a) For the purposes of FAR 9.406–1,
the SDO’s authority includes
debarments pursuant to the Federal
Management Regulation at 41 CFR 102–
117.295. In addition to the factors listed
in FAR 9.406–1, the SDO may consider
the following examples before arriving
at a debarment decision:
(1) Whether the contractor had a
mechanism, such as a hotline, by which
employees could have reported
suspected instances of improper
conduct, and instructions in place that
encouraged employees to make such
reports; or
(2) Whether the contractor conducted
periodic reviews of company business
practices, procedures, policies, and
internal controls for compliance with
standards of conduct and the special
requirements of Government
contracting.
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(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
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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]
■7. Section 809.503 is removed.
809.504 [Removed]
■8. Section 809.504 is removed.
■9. Section 809.507–1 is revised to read
as follows:
809.507–1 Solicitation provisions.
(a) While conflicts of interest may not
presently exist, award of certain types of
contracts may create potential future
organizational conflicts of interest (see
FAR 9.508 for examples). If a
solicitation may create a potential future
organizational conflict of interest, the
contracting officer shall insert a
provision in the solicitation imposing
an appropriate restraint on the
contractor’s eligibility for award of
contracts in the future. Under FAR
9.507–1, the restraint must be
appropriate to the nature of the conflict
and may exclude the contractor from
award of one or more contracts in the
future.
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(b) The provision at 852.209–70,
Organizational Conflicts of Interest,
must be included in any solicitation for
the services addressed in FAR 9.502.
PART 841—ACQUISITION OF UTILITY
SERVICES
■10. The authority citation for part 841
is revised to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C.
1702; and 48 CFR 1.301–1.304.
Subpart 841.1—General
841.100 [Removed]
■11. Section 841.100 is removed.
■12. Section 841.102 is added to read
as follows:
841.102 Applicability.
(a) This part applies to purchases of
utility services from nonregulated and
regulated utility suppliers when a
delegation of authority from GSA for
those services is requested and
obtained.
(b)(4) The acquisition of energy, such
as electricity, and natural or
manufactured gas, when purchased as a
commodity is considered to be
acquisitions of supplies rather than
utility services as described in FAR part
41.
841.103 [Removed]
■13. Section 841.103 is removed.
Subpart 841.2 [Removed and reserved]
■14. Subpart 841.2, consisting of
sections 841.100 and 841.103, is
removed and reserved.
■15. Subpart 841.5 is added to read as
follows:
Subpart 841.5—Solicitation Provision
and Contract Clauses
841.501 Solicitation provision and
contract clauses.
841.501–70 Disputes—Utility contracts.
The contracting officer shall insert the
clause at 852.841–70, Disputes—Utility
Contracts, in solicitations and contracts
for utility services subject to the
jurisdiction and regulation of a utility
rate commission.
PART 842—CONTRACT
ADMINISTRATION AND AUDIT
SERVICES
■16. The authority citation for part 842
continues to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C.
1702; and 48 CFR 1.301–1.304.
■17. Section 842.000 is revised to read
as follows:
842.000 Scope of part.
This part prescribes policies and
procedures for contract administration
and audit services for all Department of
Veterans Affairs (VA) contracting
activities.
■18. Section 842.070 is revised to read
as follows:
842.070 Definitions.
As used in this part—
Contract administration means
Government actions taken after contract
award to obtain compliance with such
contract requirements as timely delivery
of supplies or services, acceptance,
payment, and closing of the contract.
These actions include, but are not
limited to, technical, financial, audit,
legal, administrative, and managerial
services in support of the contracting
officer. It may include additional tasks
requested of designated contract
administration offices within VA in
support of pre-award activities for
solicitations issued by or awarded by
other contracting activities through
Interagency Acquisitions.
Administrative Contracting Officer
Letter of Delegation means a delegation
of functions as set forth in FAR 42.202,
42.302 and 842.271, Administrative
Contracting Officer’s role in contract
administration and delegated functions,
that is issued by a contracting officer to
delegate certain contract administration
or specialized support services.
Subpart 842.1 [Removed and reserved]
■19. Subpart 842.1, consisting of
sections 842.101 and 842.102, is
removed and reserved.
■20. Subpart 842.2 is added to read as
follows:
Subpart 842.2—Contract Administration
Services
Sec.
842.270 Contracting Officer’s
Representatives’ role in contract
administration.
842.271 Administrative Contracting
Officer’s role in contract administration
and delegated functions.
842.272 Contract clause for Government
construction contract administration.
842.270 Contracting Officer’s
Representatives’ role in contract
administration.
(a) A contracting officer may
designate a qualified person to be the
Contracting Officer’s Representative
(COR) for the purpose of performing
certain technical functions in
administering a contract.
(b) The COR acts solely as a technical
representative of the contracting officer
and is not authorized to perform any
function that results in a change in the
scope, price, terms or conditions of the
contract.
(c) A COR designation must be made
in writing by the contracting officer. The
designation shall identify the
responsibilities and limitations of the
COR. A copy of the designation must be
furnished to the contractor and the
Administrative Contracting Officer
(ACO), if separately assigned.
842.271 Administrative Contracting
Officer’s role in contract administration and
delegated functions.
(a) Contracting officers are authorized
to delegate certain contract
administration or specialized support
services in accordance with FAR 42.202
and 42.302 to cognizant VA
administrative contracting officers.
(b) The Administrative Contracting
Officer’s authority is limited to the
actions detailed in the delegation.
(c) These delegations of authority
shall be set forth in a written
Administrative Contracting Officer
(ACO) Letter of Delegation issued by the
contracting officer to the accepting
contract administration office and
designated administrative contracting
officer. The ACO Letter of Delegation
shall contain the information required
in FAR 42.202(a) through (c) and
identify the responsibilities and
limitations of the ACO. A copy of the
delegation will be furnished to the
contractor and the ACO.
(d) The contracting officer shall insert
the clause at 852.242–71,
Administrative Contracting Officer, in
solicitations and contracts expected to
exceed the micro-purchase threshold.
842.272 Contract clause for Government
construction contract administration.
The contracting officer shall insert the
clause at 852.242–70, Government
Construction Contract Administration,
in solicitations and contracts for
construction expected to exceed the
micro-purchase threshold, when
contract administration is delegated.
■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.
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Subpart 842.8 [Removed and reserved]
■22. Subpart 842.8, consisting of
sections 842.801, 842.801–70, and
842.803, is removed and reserved.
Subpart 842.12—Novation and
Change-of-Name Agreements
■23. Section 842.1202 is added to read
as follows:
842.1202 Responsibility for executing
agreements.
To avoid duplication of effort on the
part of VA contracting offices in
preparing and executing agreements to
recognize a change of name or successor
in interest involving multiple contracts
issued by VA activities, only one
agreement will be prepared and
executed between the Government and
the parties (transferor and transferee)
and will be processed as forth in FAR
42.1203. The Office of Acquisition and
Logistics, Risk Management and
Compliance Service will, in each case,
designate a cognizant HCA responsible
for assigning a contracting officer. The
designated contracting officer shall be
responsible for taking all necessary and
appropriate actions with respect to
either recognizing or not recognizing a
successor in interest or recognizing a
change of name agreement and
processing and executing the
agreements as set forth in VA
procedures.
842.1203 [Removed]
■24. Section 842.1203 is removed.
PART 852—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
■25. The authority citation for part 852
continues to read as follows:
Authority: 38 U.S.C. 8127–8128, and 8151–
8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3),
41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR
1.301 through 1.304.
Subpart 852.2—Texts of Provisions
and Clauses
■26. Section 852.209–70 is revised to
read as follows:
852.209–70 Organizational Conflicts of
Interest.
As prescribed in 809.507–1(b), insert
the following provision:
Organizational Conflicts of Interest
(OCT 2020)
(a) It is in the best interest of the
Government to avoid situations which
might create an organizational conflict
of interest or where the Offeror’s
performance of work under the contract
may provide the Contractor with an
unfair competitive advantage. The term
‘‘organizational conflict of interest’’
means that because of other activities or
relationships with other persons, a
person is unable to render impartial
assistance or advice to the Government,
or the person’s objectivity in performing
the contract work is or might be
otherwise impaired, or the person has
an unfair competitive advantage.
(b) The Offeror shall provide a
statement with its offer which describes,
in a concise manner, all relevant facts
concerning any past, present, or
currently planned interest (financial,
contractual, organizational, or
otherwise) or actual or potential
organizational conflicts of interest
relating to the services to be provided
under this solicitation. The Offeror shall
also provide statements with its offer
containing the same information for any
consultants and subcontractors
identified in its proposal and which will
provide services under the solicitation.
The Offeror may also provide relevant
facts that show how its organizational
and/or management system or other
actions would avoid or mitigate any
actual or potential organizational
conflicts of interest.
(c) Based on this information and any
other information solicited or obtained
by the Contracting Officer, the
Contracting Officer may determine that
an organizational conflict of interest
exists which would warrant
disqualifying the Contractor for award
of the contract unless the organizational
conflict of interest can be mitigated to
the Contracting Officer’s satisfaction by
negotiating terms and conditions of the
contract to that effect. If the conflict of
interest cannot be mitigated and if the
Contracting Officer finds that it is in the
best interest of the United States to
award the contract, the Contracting
Officer shall request a waiver in
accordance with FAR 9.503.
(d) Nondisclosure or
misrepresentation of actual or potential
organizational conflicts of interest at the
time of the offer or arising as a result of
a modification to the contract, may
result in the termination of the contract
at no expense to the Government.
(End of Provision)
■27. Section 852.241–70 is added to
read as follows:
852.241–70 Disputes—Utility Contracts.
As prescribed in 841.501–70, insert
the following clause:
Disputes—Utility Contracts (SEP 2020)
(a) Definition. As used in this clause,
Independent regulatory body means the
Federal Energy Regulatory Commission,
a state-wide agency, or an agency with
less than state-wide jurisdiction when
operating pursuant to state authority.
The body has the power to fix, establish,
or control the rates and services of
utility suppliers.
(b) Independent Regulatory Body
determinations. The requirements of the
Disputes clause at FAR 52.233–1 are
supplemented to provide that matters
involving the interpretation of tariffed
retail rates, tariff rate schedules, and
tariffed terms provided under this
contract are subject to any
determinations by the independent
regulatory body having jurisdiction.
(End of Clause)
■28. Section 852.242–70 is revised to
read as follows:
852.242–70 Government Construction
Contract Administration.
As prescribed in 842.272, insert the
following clause. This is a fill-in clause.
Government Construction Contract
Administration (OCT 2020)
(a) Contract administration functions
set forth in FAR 42.302 are hereby
delegated to:
[Insert name and office address of
Contracting Officer]
[Note: If any of the functions set forth
in FAR 42.302 are to be retained by the
Contracting Officer, identify those as
well with the notation: ‘‘With the
exception of the following contract
administration functions: lll.’’
Delete this notation if not required.]
(b) The following functions will be
retained by the Contracting Officer or
Administrative Contracting Officer
(ACO) and are not redelegable to
Resident Engineers:
(1) Award of contract modifications
either through supplemental agreements
or change orders that exceed the ACO’s
appointed warrant limitations.
(2) Issuance of default letters.
(3) Issuance of Cure or Show-Cause
Notices.
(4) Suspension of work letters and/or
modifications.
(5) Issuance of Contracting Officer
final determination letters.
(6) Issuance of termination notices.
(7) Authorization of final payment.
(c) The work will be under the
direction of a Department of Veterans
Affairs Contracting Officer, who may
designate another VA employee to act as
resident engineer at the construction
site who possesses limited warranted
authority.
(d) Except as provided below, the
resident engineer’s directions will not
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Federal Register / Vol. 85, No. 186 / Thursday, September 24, 2020 / Rules and Regulations
conflict with or change contract
requirements. Within the limits of any
specific authority delegated by the
Contracting Officer, the resident
engineer may, by written direction,
make changes in the work. The
Contractor shall be advised of the extent
of such authority prior to execution of
any work under the contract.
(e) The Contracting Officer or an
Administrative Contracting Officer
identified in paragraph (a) may further
delegate limited authority and
specialized support services
responsibilities below to the following
warranted Resident Engineer personnel
on site, not to exceed the dollar value
and threshold of their warrant:
[Insert name and office address of
Resident Engineer with limited
authority]
(1) Conduct post-award orientation
conferences.
(2) Issue administrative changes (see
FAR 43.101) correcting errors or
omissions, contractor address, facility or
activity code, remittance address,
computations which do not required
additional contract funds, and other
such changes.
(3) For actions not to exceed $ [Insert
dollar amount] negotiate and execute
supplemental agreements resulting from
change orders issued under the Changes
clause.
(4) Negotiate and execute
supplemental agreements changing
contract delivery schedules where the
time extension does not exceed [Insert
number] calendar days.
(End of Clause)
■29. Section 852.242–71 is added to
read as follows:
852.242–71 Administrative Contracting
Officer.
As prescribed in 842.271, insert the
following clause:
Administrative Contracting Officer
(OCT 2020)
The Contracting Officer reserves the
right to designate an Administrative
Contracting Officer (ACO) for the
purpose of performing certain tasks/
duties in the administration of the
contract. Such designation will be in
writing through an ACO Letter of
Delegation and will identify the
responsibilities and limitations of the
ACO. A copy of the ACO Letter of
Delegation will be furnished to the
Contractor.
(End of Clause)
[FR Doc. 2020–18172 Filed 9–23–20; 8:45 am]
BILLING CODE 8320–01–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Chapters II, III, and VI
[RTID 0648–XA387]
Plan for Periodic Review of
Regulations
AGENCY
: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION
: Request for comments.
SUMMARY
: NMFS announces the
availability of a list of the rules it is
reviewing, as required, under section
610 of the Regulatory Flexibility Act.
We are required to notify the public of
our review of existing regulations that
we have determined had, or will have,
a significant impact on a substantial
number of small entities, such as small
businesses, small organizations, and
small governmental jurisdictions. The
intended effect of this notice is to
inform the public of the rules under
review, to outline NMFS’ review
process, and to provide an opportunity
to comment.
DATES
: Written comments must be
received by October 26, 2020.
ADDRESSES
: You may submit comments
on this document, identified by NOAA–
NMFS–2020–0128, by the following
method:
•Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal. Go to
http://www.regulations.gov/
#!docketDetail;D=NOAA-NMFS-2020-
0128, click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
Instructions: Comments must be
submitted by the above method to
ensure that the comments are received,
documented, and considered by NMFS.
Comments sent by any other method, to
any other address or individual, or
received after the end of the comment
period, may not be considered. All
comments received are a part of the
public record and will generally be
posted for public viewing on
www.regulations.gov without change.
All personal identifying information
(e.g., name, address, etc.) submitted
voluntarily by the sender will be
publicly accessible. Do not submit
confidential business information, or
otherwise sensitive or protected
information. NMFS will accept
anonymous comments (enter ‘‘N/A’’ in
the required fields if you wish to remain
anonymous).
FOR FURTHER INFORMATION CONTACT
: Tara
Scott, Industry Economist, (301) 427–
8579.
SUPPLEMENTARY INFORMATION
:
Background
The Regulatory Flexibility Act (RFA),
5 U.S.C. 601 et seq., requires that
Federal agencies, including NMFS, take
into account how their regulations affect
‘‘small entities,’’ including small
businesses, small Governmental
jurisdictions, and small organizations.
Under the RFA, we must either prepare
a Regulatory Flexibility Analysis or
certify that the regulation, if put in
place, will not have a significant
economic impact on a substantial
number of small entities. This
requirement has been in place for any
regulation proposed after January 1,
1981. Section 602 of the RFA requires
that NMFS issue an Agenda of
Regulations identifying rules under
development that are likely to have a
significant economic impact on a
substantial number of small entities.
Section 610 of the RFA requires
Federal agencies to review existing
regulations. It requires that NMFS
publish a plan in the Federal Register
explaining how it will review its
existing regulations, which have or will
have a significant economic impact on
a substantial number of small entities.
Regulations that became effective after
January 1, 1981, must be reviewed
within 10 years of the publication date
of the final rule. Section 610(c) requires
that we annually publish a list of final
rules we will review during the
succeeding 12 months in the Federal
Register. The list must describe, explain
the need for, and provide the legal basis
for the rules being reviewed, as well as
invite public comment on the rules
contained in the list.
Criteria for Review of Existing
Regulations
The purpose of the required review is
to determine whether existing rules
should be left unchanged, or whether
they should be revised or rescinded to
minimize significant economic impacts
on a substantial number of small
entities, consistent with the objectives
of other applicable statutes. In deciding
whether change is necessary, the RFA
establishes five factors that NMFS must
consider:
(1) Whether the rule is still needed;
(2) What type of complaints or
comments were received concerning the
rule from the public;
(3) The complexity of the rule;
(4) How much the rule overlaps,
duplicates or conflicts with other
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