82 FR 22635 - Revise and Streamline VA Acquisition Regulation To Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V001)
DEPARTMENT OF VETERANS AFFAIRS Federal Register Volume 82, Issue 94 (May 17, 2017)
Federal Register Volume 82, Issue 94 (May 17, 2017)
| Page Range | 22635-22642 | |
| FR Document | 2017-09158 |
[Federal Register Volume 82, Number 94 (Wednesday, May 17, 2017)] [Proposed Rules] [Pages 22635-22642] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-09158] [[Page 22635]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS 48 CFR Parts 801, 802, 803, 812, 814, 822, and 852 RIN 2900-AP50 Revise and Streamline VA Acquisition Regulation To Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V001) AGENCY: Department of Veterans Affairs. ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend and update its VA Acquisition Regulation (VAAR). Under this initiative all parts of the regulation are being reviewed in phased increments to revise or remove any policy that has been superseded by changes in the Federal Acquisition Regulation (FAR), to remove any procedural guidance that is internal to the VA, and to incorporate any new regulations or policies Acquisition regulations become outdated over time and require updating to incorporate additional policies, solicitation provisions, or contract clauses that implement and supplement the FAR to satisfy VA mission needs, and to incorporate changes in dollar and approval thresholds, definitions, and VA position titles and offices. This Proposed Rule will correct inconsistencies, remove redundant and duplicate material already covered by the FAR, delete outdated material or information, and appropriately renumber VAAR text, clauses and provisions where required to comport with FAR format, numbering and arrangement. This Proposed Rule will streamline the VAAR to implement and supplement the FAR only when required, and remove internal agency guidance as noted above in keeping with the FAR principles concerning agency acquisition regulations. DATES: Comments must be received on or before July 17, 2017 to be considered in the formulation of the final rule. ADDRESSES: Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to ``RIN 2900-AP50--Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014- V001--parts 801, 802, 803, 812, 814, 822, and 852).'' Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. This is not a toll-free number. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Mr. Ricky L. Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW., Washington, DC 20001, (202) 632-5276. This is not a toll-free telephone number. SUPPLEMENTARY INFORMATION: Background This action is being taken under the authority of the Office of Federal Procurement Policy Act which provides the authority for an agency head to authorize the issuance of agency acquisition regulations that implement or supplement the FAR. This authority ensures that Government procurements are handled fairly and consistently, that the Government receives overall best value, and that the Government and contractors both operate under a known set of rules. The Proposed Rule updates the VAAR to current FAR titles, requirements, and definitions; it updates VA titles and offices; it corrects inconsistencies, removes redundancies and duplicate material already covered by the FAR; it deletes outdated material or information and appropriately renumbers VAAR text and clauses and provisions where required to comport with FAR format, numbering and arrangement. All amendments, revisions, and removals have been peer reviewed and concurred with by an Integrated Product Team of agency stakeholders. The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are broken up consistent with the FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, sections, and subsections. The Office of Federal Procurement Policy Act provides the authority for the Federal Acquisition Regulation and for the issuance of Agency Acquisition regulations consistent with the FAR. When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873. These authorities are designed to ensure that Government procurements are handled fairly and consistently, that the Government receives overall best value, and that the Government and contractors both operate under a known set of rules. VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any guidance that is applicable only to VA's internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through formal rulemaking under the Office of Federal Procurement Policy Act. This proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. This proposed rule will generally be small business neutral. VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined this rule is not a significant regulatory action. Discussion and Analysis VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal is being considered for inclusion in VA's internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authorities that are removed from the VAAR will be included in the VA Acquisition Manual (VAAM) as internal agency guidance. We propose to revise the main parts reflected in the title of the case: VAAR parts 803, 814, and 822, as well as revisions to affected parts as a result of those changes: VAAR parts 801, 802, 812, and 852. We propose to revise the authority citations under Parts 801, 802, 803, 812, 814, 822, and 852 to include a reference to 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. Any other proposed changes to [[Page 22636]] authorities are shown under the individual parts below. VAAR Part 801--Department of Veterans Affairs Acquisition Regulation System This proposed rule removes an information collection burden previously included in the VAAR based on an outdated practice in providing bid envelopes. In section 801.106, OMB approval under the Paperwork Reduction Act, we propose to remove and discontinue the Office of Management and Budget (OMB) control number 2900-0593, clause 852.214-70, as well as its prescription at 814.201-6(a), since sealed bids are solicited through the Governmentwide Point of Entry (GPE) and are largely submitted electronically rather than through the U.S. mail, thereby making the optional practice of providing bidders with envelops and return address label unnecessary. VAAR Part 802--Definitions of Words and Terms In section 802.101, Definitions, we propose to add two new definitions to define two key terms used within the revised VAAR part 803, Improper Business Practices and Personal Conflicts of Interests, dealing with debarment and suspensions and that will be applicable when referenced in the future in other VAAR parts: Debarment and Suspension Committee and Suspension and Debarring Official. These are necessary to ensure a clear understanding of the meaning of these terms and who is designated as the Suspension and Debarring Official (SDO). VAAR Part 803--Improper Business Practices and Personal Conflicts of Interest We propose to clarify the language regarding the prohibition of contractors from making reference in their commercial advertising regarding VA contracts to avoid implying that the Government approves or endorses products or services. We propose to add a requirement that contracting officers require contractors and subcontractors at any tier to obtain signed non-disclosure statements from covered personnel. In subpart 803.1, Safeguards, we propose the remove and reserve the entire subpart for the reasons stated in the sections below which fall under the subpart. We propose to remove section 803.101, Standards of conduct, since it contains procedural guidance and a delegation of authority that is internal to the VA and will be in the VAAM. We propose to remove section 803.101-3, Department regulations, since it contains information on standards of conduct and financial disclosure for VA employees and is internal procedural guidance that is internal to the VA and will be in the VAAM. We propose to remove section 803.104, Procurement integrity, and section 803.104-7, Violations or possible violations, since they contain procedural guidance and a delegation of authority that is internal to the VA and will be in the VAAM. We propose to remove subsection 803.104-7, Violations or possible violations since it also contains procedural guidance and a delegation of authority that is internal to the VA and will be in the VAAM. In subpart 803.2, Contractor Gratuities to Government Personnel, we are proposing to update the policy governing improper business practices and personal conflicts of interests to make the agency's policies clear, to provide notice of due process rights and to establish who in the agency determines whether or not a violation of the Gratuities clause has occurred and what procedures are followed when the Suspension and Debarring Official (SDO) makes that decision. In section 803.204, we propose to remove portions of section 803.204, Treatment of violations, which contain procedural guidance and a delegation of authority that is internal to the VA and will be moved to the VAAM. To ensure contractors are apprised of their rights, we propose to revise section 803.204 to add the responsibility of the Suspension and Debarring Official (SDO) for determining whether or not a violation of the Gratuities clauses has occurred and what action will be taken, as well as a paragraph that states that when the SDO determines that a violation has occurred and that debarment is being considered, the SDO shall follow the requirements at VAAR 809.406-3. In subpart 803.3, Reports of Suspected Antitrust Violations, we propose to remove section 803.303, Reporting suspected antitrust violations, since it contains guidance to VA employees that is internal to the VA and will be moved to the VAAM. In subpart 803.4, Contingent Fees, we propose to remove and reserve the entire subpart and to remove the underlying section 803.405, Misrepresentations or violations of the Covenant Against Contingent Fees, since it contains guidance to VA employees that is internal to the VA and will be moved to the VAAM. In subpart 803.5, Other Improper Business Practices, we propose to remove section 803.502, Subcontractor kickbacks, since it provides direction to VA employees that is internal to the VA and will be moved to the VAAM. In section 803.570, Commercial advertising, we propose to revise the language of subsection 803.570-1, Policy, to clarify the intent to prohibit advertising that implies a Government endorsement of the contractor's products or services. In subpart 803.6, Contracts with Government Employees or Organizations Owned or Controlled by Them, we propose to remove and reserve the entire subpart and to remove the underlying section 803.602, Exceptions, since it delegates authority to authorize an exception to the policy in FAR 3.601. This delegation will be in the VA Acquisition Manual and is internal VAAM procedural guidance. In subpart 803.7, Voiding and Rescinding Contracts, we propose to remove and reserve the entire subpart and to remove the underlying sections. We propose to remove section 803.703, Authority, since it is a delegation of authority. This delegation will be in the VAAM and is internal VA procedural guidance. We propose to remove section 803.705, Procedures, as it duplicates FAR 3.705. A short paragraph that directs VA Heads of Contracting Activities to follow the procedures of FAR 3.705 was added to the VAAM. In subpart 803.8, Limitation on the Payment of Funds to Influence Federal Transactions, we propose to remove and reserve the entire subpart and to remove the underlying sections. We propose to remove section 803.804, Policy, and section 803.806, Processing suspected violations. This is internal VA procedural guidance and will be moved to the VAAM. We propose to add subpart 803.11, Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions. This implements part of FAR clause 52.203-16, Preventing Personal Conflicts of Interest, by requiring the signing of a Non-Disclosure Agreement by certain contractor covered employees performing acquisition functions closely associated with inherently governmental functions in order to prohibit disclosure of non-public information accessed through performance on a Government contract. This also requires each contractor and subcontractor at any tier whose employees perform acquisition functions closely associated with inherently governmental functions to obtain the signed non-disclosure forms from each covered employee. [[Page 22637]] We propose to remove and reserve subpart 803.70, Contractor Responsibility to Avoid Improper Business Practices, and to remove its underlying section 803.7000, Display of the VA Hotline poster and its prescription at section 803.7001, Contract clause, because it is unnecessary and duplicates FAR coverage. FAR 52.203-14, Display of Hotline Poster(s), as prescribed at FAR 3.1004(b), provides adequate coverage for the VA. Agency internal procedures regarding fill-in information for the clause will be covered in the VAAM. VAAR Part 812--Acquisition of Commercial Items In section 812.301, paragraph (b)(13), we propose to change the name of provision 852.214-74 to Marking of Bid Samples to better reflect the requirement of the provision. VAAR Part 814--Sealed Bidding In subpart 814.1, Use of Sealed Bidding, we propose to delete the subpart in its entirety, to include its underlying sections. We propose to delete section 814.104, Types of contracts, and section 814.104-70, Fixed-price contracts with escalation, as unnecessary since both simply require compliance with FAR 16.203-1 through 16.203-4 and no additional VAAR text is required. In subpart 814.2, Solicitation of Bids, we propose to revise section 814.201(a)-(f) by: Removing paragraphs (a)-(b) since they deal with numbering of IFBs and consist of internal agency procedures which is more properly covered in VAAM subpart 804.16; and, by removing paragraphs (c) through (f) altogether under the existing section. The title of the section would remain, but no additional text is added. We propose to add a new subsection, 814.201-2, Part I--The Schedule, to explain how award will be made on summary bids and bids on groups of items to ensure this is clear to the public. In this new subsection 814.201-2, we propose to add revised paragraphs originating from the old 814.201 to comport with FAR numbering and arrangement under the new subsection VAAR 814.201-2(b) to implement FAR 14.201- 2(b). In subsection 814.201-6, Solicitation provisions, we propose to remove as unnecessary paragraph (a), which addresses bid envelopes, since labeling of bids is a customary and usual commercial practice, and the use of the OF 17, which is optional, is no longer a standard practice. We propose to redesignate paragraph (b) as (a) and to revise item (1) to prescribe new provision 852.214-71, Restrictions on alternate item(s); item (2) to clarify the conditions for including the provision 852.214-72, Alternate items; and item (3) to prescribe the provision 852.214-73, Alternate packaging and packing, when bids will be allowed based on different packaging and packing. We also proposed to redesignate paragraph (c) as (b) and to add a prescription for the provision 852.214-74, Marking of bid samples. We propose to add section 814.202, General rules for solicitation of bids and subsection 814.202-4, Bid samples, requiring samples to be from the manufacturer providing supplies or services under the contract. This ensures that the products that are actually proposed and would be delivered under the contract, if awarded, are the products that are submitted for evaluation. Paragraph (g), requires that bid samples be retained for the period of contract performance or until settlement of any claim that the Government may have against the contractor. Retention is intended for inspection purposes under FAR 14.202-4(g)(4). We propose to delete section 814.203, Methods of soliciting bids, and subsection 814.203-1, Transmittal to prospective bidders, as the practice specified of furnishing a bid envelope or sealed bid label is out of date with existing practices. We propose to delete section 814.204, Records of Invitations for Bids and Records of Bids, as it contains internal instructions to the VA and will be moved to the VAAM. We propose to delete section 814.208, Amendment of Invitation for Bids as out of date with existing practices regarding sending amendments. In subpart 814.3, Submission of Bids, we propose to delete section 814.301, Responsiveness of bids, since there is no authority to refer the question of timeliness to the U.S. Government Accountability Office (GAO) except in the context of a protest. We propose to delete section 814.302, Bid submission, as duplicative of FAR 14.302(a) and therefore unnecessary. We propose to revise section 814.304, Submission, modification, and withdrawal of bids, to delete internal procedures, to stipulate a limited time period for a late bidder to submit evidence of timeliness, and to renumber this paragraph (f) accordingly to comport with FAR and VAAR numbering conventions. In subpart 814.4, Opening of Bids and Award of Contract, we propose to delete the entire subpart because the information is either redundant to the FAR and is adequately covered there or it is comprised of agency internal procedures that will be incorporated into the VAAM as noted specifically below. We propose to delete section 814.401, Receipt and safeguarding of bids, because coverage in the VAAR is unnecessary as the FAR adequately covers. We propose to delete sections 814.402, Opening of bids; 814.403, Recording of bids; 814.404, Rejection of bids; 814.404-1, Cancellation of invitations after opening; 814.404-2, Rejection of individual bids; 814.407, Mistakes in bids; 814.407-3, Other mistakes disclosed before award; and, 814.407-4, Mistakes after award, as these are agency internal procedures that will be incorporated into the VAAM. We propose to delete section 814.404-70, Questions involving the responsiveness of a bid, as there is no authority to refer questions of bid responsiveness to the GAO other than in the context of a protest, and, the overall responsibility for this determination rests with the contracting officer. Coverage in FAR 14.301, Responsiveness of bids, is adequate and no further VAAR coverage is required. We propose to delete sections 814.408, Award, and 814.408-70, Award when only one bid is received, because coverage in the VAAR is unnecessary as it is adequately covered by FAR 14.408-1(b). We propose to delete section 814.408-71, Recommendation for award (construction) as the procedures are no longer in use within the Office of Construction and Facilities Management. We propose to delete section 814.409, Information to bidders, as unnecessary since the requirement not to disclose is contained in FAR part 3 and need not be duplicated in the VAAR. VAAR Part 822--Application of Labor Laws to Government Acquisitions In subpart 822.3, Contract Work Hours and Safety Standards Act, we propose to revise section 822.304, Variations, tolerances, and exemptions, to use plain language to state the conditions that must be met to permit use of the variation to Contract Work Hours and Safety Standards (the statute) (historically known as the Contract Work Hours and Safety Standards Act), granted by the Secretary of Labor regarding the payment of overtime under contracts for nursing home care for Veterans. We propose to revise section 822.305, Contract clause, to change the title of [[Page 22638]] the clause at 852.222-70 to Contract Work Hours and Safety Standards-- Nursing Home Care for Veterans in order to reflect the way the FAR refers to the historical titles based on the Positive Law codification. In subpart 822.4, Labor Standards for Contracts Involving Construction, we propose to remove and reserve subpart 822.4, Labor Standards for Contracts Involving Construction, since this subpart contains procedural guidance on the types of labor standards involved in construction contracting, internal agency guidance to the contracting officer, etc., and is more appropriate for inclusion in the VAAM. We propose to remove the underlying section 822.406, Administration and enforcement and subsection 822.406-11, Contract terminations, which falls under this subpart since it contains procedural guidance and will be moved to the VAAM. VAAR Part 852--Solicitation Provisions and Contract Clauses In subpart 852.2, we propose to revise clause 852.203-70, Commercial Advertising, to use plain language, remove gender-specific wording, and to clarify the intent to prohibit advertising that implies a Government endorsement of the contractor's products or services. We propose to remove clause 852.203-71, Display of Department of Veterans Affairs Hotline Poster, because the VA will instead use FAR clause 52.203-14, Display of Hotline Poster(s), as prescribed at FAR 3.1004. The FAR clause permits insertion of fill-in language to identify an agency's hotline poster and VA will include language in its internal agency procedures detailing the requirement to insert the information regarding its agency specific hotline poster. We propose to remove provision 852.214-70, Caution to Bidders--Bid Envelopes, because the practices described within the provision are obsolete with the advent of posting on the Government wide point of entry (GPE) via the Federal Business Opportunities (FEDBIZOPPS.gov or FBO.gov) Web page or via a linked interface off of FBO.gov. VA no longer issues Bid Envelopes or the Optional Form (OF) 17, Sealed Bid Label, described in the provision, when electronically posting IFBs, thus making the provision obsolete and unnecessary. Additionally, the clause, which talks to the VA providing a Sealed Bid Label, is unnecessary since labeling a bid is a customary and usual business practice making it unnecessary for VA to provide an optional label. We propose to revise the individual prescription references for the following clauses based on the restructuring of 814.201-6: 852.214-71, Restrictions on Alternate Item(s); 852.214-72, Alternate Item(s); and 852.214-73, Alternate Packaging and Packing. We propose to revise the title, text and prescription language of provision 852.214-74 that now reads, Bid Samples, to Marking of Bid Samples to describe better what the provision is about and to distinguish it from a FAR provision that is called ``Bid Samples.'' We use plain language to describe the principal purpose, which is to ensure that bidder's packages that include bid samples are clearly marked and identified with the words Bid Samples, as well as complete lettering/numbering and description of the related bid item(s), the number of the IFB, and the name of the bidder submitting the bid samples. We are also removing language stating that the preparation and transportation of the bid sample must be prepaid by the bidder as this language is unnecessary because FAR clause 52.214-20, Bid Samples, already contains language covering the bidder's responsibilities in this regard. We also propose to revise the prescription language for this provision at 814.201-6(b) which was renumbered to comport with FAR and VAAR numbering and arrangement. We propose to revise clause 852.222-70, Contract Work-Hours and Safety Standards Act--Nursing Home Care Contract Supplement, to change the title to Contract Work Hours and Safety Standards--Nursing Home Care for Veterans, to better reflect the substance and coverage of the clause and to align the name of the clause with the revised current reference in lieu of the historical title of the act. This revision will also clarify that the clause has flow-down requirements and applies to subcontractors at any tier when the stated conditions in the VAAR clause are met. Effect of Rulemaking Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as revised by this proposed rulemaking, represents 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 are authorized. All existing or subsequent VA guidance must be read to conform with the rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking as pertains to the cited applicable VAAR parts. Executive Orders 12866 and 13563 Executive Orders (E.O.) 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.'' VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined this rule is not a significant regulatory action under E.O. 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 Web site at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 Through Fiscal Year to Date. Paperwork Reduction Act Although this action contains provisions constituting collections of information at 48 CFR 814.201-6(a) and [[Page 22639]] 852.214-70, under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collections of information are associated with this proposed rule. The information collection requirements for Sec. Sec. 48 CFR 814.201-6(a) and 852.214- 70 are currently approved by the Office of Management and Budget (OMB), have been assigned OMB control number 2900-0593, and are being proposed for removal and discontinuance. Regulatory Flexibility Act This proposed 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 proposed rule will generally be small business neutral. The overall impact of the proposed rule will be of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating procedures. VA estimates no cost impact to individual business resulting from these rule updates. On this basis, the adoption of this proposed 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. Therefore, under 5 U.S.C. 605(b), this proposed rule 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 proposed rule will have no such effect on State, local, and tribal Governments or on the private sector. 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. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on May 1, 2017 for publication. List of Subjects 48 CFR Part 801 Administrative practice and procedure, Government procurement, Reporting and recordkeeping requirements. 48 CFR Part 802 Government procurement. 48 CFR Part 803 Antitrust, Conflict of interest, Government procurement. 48 CFR Part 812 Government procurement. 48 CFR Part 814 Government procurement. 48 CFR Part 822 Government procurement, Labor. 48 CFR Part 852 Government procurement, Reporting and recordkeeping requirements. Dated: May 2, 2017. Janet Coleman, Chief, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. For the reasons set out in the preamble, VA proposes to amend 48 CFR, chapter 8, parts 801, 802, 803, 812, 814, 822, and 852 as follows: PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION SYSTEM 0 1. The authority citation for part 801 is revised to read as follows: Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); and 48 CFR 1.301-1.304. 801.106 OMB approval under the Paperwork Reduction Act. 0 2. In section 801.106, table columns titled ``48 CFR part or section where identified and described'' and ``Current OMB Control Number,'' are amended to remove the references to section 852.214-70 and the corresponding OMB Control Number 2900-0593. PART 802--DEFINITIONS OF WORDS AND TERMS 0 3. The authority citation for part 802 is revised to read as follows: Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); and 48 CFR 1.301-1.304. 802.101 Definitions 0 4. Section 802.101 is amended to add the following definition in alphabetical order after ``D&S Committee'' to read as follows: * * * * * Debarment and Suspension Committee means a committee authorized by the debarring official to assist the debarring official with debarment and suspension related matters. The Debarment and Suspension Committee is also referred to as the D&S Committee. * * * * * 0 5. Section 802.101 is amended to add the following definition in alphabetical order after ``Suspending Official'' to read as follows: * * * * * Suspension and debarring official means the Senior Procurement Executive (SPE) or Deputy Senior Procurement Executive (DSPE) if further delegated in writing by the SPE. The Suspension and Debarring Official is also referred to as the SDO. * * * * * PART 803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST 0 6. The authority citation for part 803 is revised to read as follows: Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); and 48 CFR 1.301-1.304. Subpart 803.1 [Removed and Reserved] 0 7. Subpart 803.1 is removed and reserved. 803.204 [Amended] 0 8. Section 803.204 is revised to read as follows: 803.204 Treatment of violations. (a) The SDO shall determine whether or not a violation of the Gratuities clause, 52.203-3 has occurred and what action will be taken under FAR 3.204(c). (c) When the SDO determines that a violation has occurred and that debarment is being considered, he or she shall follow procedures at 809.406-3. Subpart 803.3 [Removed and Reserved] 0 9. Subpart 803.3 is removed and reserved. Subpart 803.4 [Removed and Reserved] 0 10. Subpart 803.4 is removed and reserved. 803.502 [Removed] 0 11. Section 803.502 is removed. [[Page 22640]] 803.570 [Amended] 0 12. Section 803.570-1 is revised to read as follows: 803.570-1 Policy. VA policy prohibits contractors from making references in its commercial advertising to VA contracts in a manner that states or implies the Government approves or endorses the product or service or considers it superior to other products or services. The intent of this policy is to preclude the appearance of bias toward any product or service. Subpart 803.6 [Removed and Reserved] 0 13. Subpart 803.6 is removed and reserved. Subpart 803.7 [Removed and Reserved] 0 14. Subpart 803.7 is removed and reserved. Subpart 803.8 [Removed and Reserved] 0 15. Subpart 803.8 is removed and reserved. Subpart 803.11 [Added] 0 16. Subpart 803.11 is added to read as follows: Subpart 803.11--Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions 803.1103 Procedures. (a) By use of the contract clause at 52.203-16, Preventing Personal Conflicts of Interest, the contracting officer shall require each contractor whose employees perform acquisition functions closely associated with inherently Governmental functions to obtain from each covered employee a signed non-disclosure agreement to prohibit disclosure of non-public information accessed through performance of a Government contract. See FAR 3.1103(a)(2)(iii). Subpart 803.70 [Removed and Reserved] 0 17. Subpart 803.70 is removed and reserved. PART 812--ACQUISITION OF COMMERCIAL ITEMS 0 18. The authority citation for part 812 is revised to read as follows: Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); and 48 CFR 1.301-1.304. * * * * * 812.301 [Amended] * * * * * 0 19. Section 812.301, paragraph (b)(13) is revise to read as follows: 812.301 Solicitation provisions and contract clauses for the acquisition of commercial items. * * * * * (b) * * * (13) 852.214-74, Marking of Bid Samples. * * * * * PART 814--SEALED BIDDING 0 20. The authority citation for part 814 is revised to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); and 48 CFR 1.301-1.304. Subpart 814.1 [Removed and Reserved] 0 21. Subpart 814.1 is removed and reserved. 814.201 [Removed and reserved] 0 22. Section 814.201 is removed and reserved. 0 23. Subsection 814.201-2 is added to read as follows: 814.201-2 Part I--The Schedule. (b) Section B, Supplies or services and prices. (1) When the contracting officer determines that it will be to the Government's advantage to make an award on the basis of a summary bid, the IFB shall include the following statement in Part I--The Schedule, Section B: The award will be made on either the bid price for individual items or the summary bid price summary for all items, whichever results in the lowest price to the Government. Therefore, to assure proper evaluation of all bids, a bidder quoting a summary bid price must also quote a price on each individual item included in the summary bid price. (2) When a contracting officer determines that it will be to the Government's advantage to make an award by group or groups of items, the IFB shall include the following statement in Part I--The Schedule, Section B: Award shall be made on the basis of the bid price for each identified group of items. The individual price of each line item in the group does not have to be the lowest bid received for that item. This may apply when the items in the group or groups are readily available from sources to be solicited; and one of the following applies-- (i) Furniture or fixtures are required for a single project and uniformity of design is desirable. (ii) The articles required will be assembled and used as a unit. * * * * * 0 24. Subsection 814.201-6 is added to read as follows: 814.201-6 Solicitation provisions. (a) In an invitation for bid for supplies, equipment, or services (other than construction), the contracting officer shall define the extent to which VA will authorize and consider alternate bids. (1) The contracting officer shall include the provision at 852.214- 71, Restrictions on Alternate Items(s), in the invitation when VA will consider an alternate item only where acceptable bids on a desired item are not received or the bids do not satisfy the total requirement. (For construction projects, VA will consider for acceptance an alternate specified only as a part of the basic item.) (2) The contracting officer shall include the provision at 852.214- 72, Alternate Items, in the invitation, when VA will consider an alternate item on an equal basis with the item specified. (For construction projects, VA will consider for acceptance an alternate specified only as a part of the basic item.) (3) In addition to either of the provisions referenced in paragraphs (b)(1) or (2) of this subsection, the contracting officer shall include the provision at 852.214-73, Alternate Packaging and Packing, in the invitation when bids will be allowed based on different packaging, unit designation, etc. (b) The contracting officer shall include the provision at 852.214- 74, Marking of Bid Samples, in the invitation, along with the provision at FAR 52.214-20, Bid Samples, when the contracting officer determines that samples are necessary to the proper awarding of a contract. 0 25. Subpart 814.2 is amended to add section 814.202 and subsection 814.202-4, to read as follows: 814.202 General rules for solicitation of bids. 814.202-4 Bid samples. (a) Policy. When bid samples are required, the contracting officer shall include a notice in the contract Schedule that requires bidders to submit samples produced by the manufacturer whose products will be supplied under the contract. (g) Handling bid samples. [[Page 22641]] (1) Samples from successful bids shall be retained for the period of contract performance. (2) If the contracting officer anticipates a claim regarding the contract, the contracting officer shall require that the bid samples be retained until the claim is resolved. If there are no outstanding claims regarding the contract, the contracting officer may authorize disposal of the samples at the end of the contract term in accordance with the bidder's instructions. (3) The contracting officer shall require that samples from unsuccessful bids be retained until award. After award, these samples may be disposed of in accordance with the bidder's instructions. 814.203 [Removed] 0 26. Section 814.203 is removed. 814.204 [Removed] 0 27. Section 814.204 is removed. 814.208 [Removed] 0 28. Section 814.208 is removed. 814.301 [Removed] 0 29. Section 814.301 is removed. 814.302 [Removed] 0 30. Section 814.302 is removed. 0 31. Section 814.304 is amended by removing paragraphs (a) and (b) and adding paragraph (f) to read as follows: 814.304 Submission, modification and withdrawal of bids. * * * * * (f) A notification to late bidders shall specify the final date by which VA must receive evidence of timeliness. This date shall be within five calendar days of the date an electronic notice is sent to the bidder, or within ten calendar days of receipt by the bidder of a notice sent by other than electronic means. * * * * * Subpart 814.4 [Removed and Reserved] 0 32. Subpart 814.4 is removed and reserved. * * * * * PART 822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS 0 33. The authority citation for part 822 is revised to read as follows: Authority: 29 CFR 5.15(d); 38 U.S.C. 501; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); and 48 CFR 1.301-1.304. * * * * * PART 822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS Subpart 822.3--Contract Work Hours and Safety Standards Act Sec. 822.304 Variations, tolerances, and exemptions. 822.305 Contract clause. 822.304 [Amended] 0 34. Section 822.304 is revised to read as follows: 822.304 Variations, tolerances, and exemptions. For contracts providing nursing home care for veterans, the Secretary of Labor has allowed a variation to the requirements of Contract Work Hours and Safety Standards (the statute) (40 U.S.C. 3701, et seq.) regarding the payment of overtime (see 29 CFR 5.15(d)(2). The variation provides that overtime may be calculated on a basis other than a 40 hour workweek (as an alternate work period) when-- (a) Due to operational necessity or convenience a work period of 14 consecutive days may be accepted in lieu of the workweek of 7 consecutive days for the purpose of computing overtime compensation, pursuant to an agreement or understanding arrived at between the contractor and the contractors' employees before performance of the work; and (b) If the contractor's employees receive compensation for employment in excess of 8 hours in any workday and in excess of 80 hours in such 14-day period at a rate not less than 1\1/2\ times the regular rate at which the individual is employed, computed in accordance with the requirements of the Fair Labor Standards Act of 1938, as amended. 822.305 [Amended] 0 35. Section 822.305 is revised to read as follows: 822.305 Contract clause. The contracting officer shall insert the clause at 852.222-70, Contract Work Hours and Safety Standards--Nursing Home Care for Veterans, in solicitations and contracts for nursing home care for veterans. The contractor shall flow down this clause and insert in in all subcontracts, at any tier. Subpart 822.4 [Removed and Reserved] 0 36. Subpart 822.4 is removed and reserved. * * * * * PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 37. The authority citation for part 852 is revised to read as follows: Authority: 38 U.S.C. 501, 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); and 48 CFR 1.301-1.304. * * * * * Subpart 852.2--Texts of Provisions and Clauses 852.203-70 [Amended] 0 38. Section 852.203-70 is revised to read as follows: 852.203-70 Commercial Advertising. As prescribed in 803.570-2, insert the following clause: Commercial Advertising (Date) The contractor shall not make reference in its commercial advertising to Department of Veterans Affairs contracts in a manner that states or implies the Department of Veterans Affairs approves or endorses the contractor's products or services or considers the contractor's products or services superior to other products or services. (End of clause) 852.203-71 [Removed and Reserved] 0 39. Section 852.203-71 is removed and reserved. * * * * * 852.214-70 [Removed and Reserved] 0 40. Section 852.214-70 is removed and reserved. 852.214-71 [Amended] 0 41. Section 852.214-71 is revised to read as follows: 852.214-71 Restrictions on alternate item(s). As prescribed in paragraph 814.201-6(a)(1), insert the following provision: Restrictions on Alternate Item(s) (Date) Bids on [ ] * will be considered only if acceptable bids on [ ] ** are not received or do not satisfy the total requirement. * Contracting officer will insert an alternate item that is considered acceptable. ** Contracting officer will insert the required item and item number. (End of provision) 852.214-72 [Amended] 0 42. Section 852.214-72 is revised to read as follows: 852.214-72 Alternate item(s). As prescribed in paragraph 814.201-6(a)(2), insert the following provision: [[Page 22642]] Alternate Item(s) (Date) Bids on [ ] * will be given equal consideration along with bids on [ ] ** and any such bids received may be accepted if to the advantage of the Government. Tie bids will be decided in favor of [ ]. ** * Contracting officer will insert an alternate item that is considered acceptable. ** Contracting officer will insert the required item and item number. (End of provision) 852.214-73 [Amended] 0 43. Section 852.214-73 is revised to read as follows: 852.214-73 Alternate packaging and packing. As prescribed in paragraph 814-201-6(a)(3), insert the following provision: Alternate Packaging and Packing (Date) The bidders offer must clearly indicate the quantity, package size, unit, or other different feature upon which the quote is made. Evaluation of the alternate or multiple alternates will be made on a common denominator such as per ounce, per pound, etc., basis. (End of provision) 852.214-74 [Amended] 0 44. Section 852.214-74 is revised to read as follows: 852.214-74 Marking of Bid Samples. As prescribed in paragraph 814.201-6(b), insert the following provision: Marking of Bid Samples (Date) Any bid sample(s) furnished must be in the quantities specified in the solicitation. Cases or packages must be plainly marked `Bid Sample(s)'' with the complete lettering/numbering and description of the related bid item(s), the number of the Invitation for Bids, and the name of the bidder submitting the bid sample(s). (End of provision) * * * * * 852.222-70 [Amended] 0 45. Section 852.222-70 is revised to read as follows: 852.222-70 Contract Work-Hours and Safety Standards--Nursing Home Care for Veterans. As prescribed in 822.305, insert the following clause: Contract Work Hours and Safety Standards--Nursing Home Care for Veterans (Date) (a) No Contractor and subcontractor under this contract shall prohibit the payment of overtime wages to their employees for work in excess of 40 hours in any workweek, which would otherwise be a violation of Contract Work Hours and Safety Standards (the statute) (40 U.S.C. 3701, et seq.), provided-- (1) The Contractor or subcontractor is primarily engaged in the care of nursing home patients residing on the contractor's or subcontractor's premises; (2) There is an agreement or understanding between the Contractor or subcontractor and their employees, before performance of work, that a work period of 14 consecutive days is acceptable in lieu of a work period of 7 consecutive days for the purpose of overtime compensation; (3) Employees receive overtime compensation at a rate no less than 1\1/2\ times the employees' regular hourly rate of pay for work in excess of 80 hours in any 14 day period; and (4) Pay is otherwise computed in accordance with the requirements of the Fair Labor Standards Act of 1938, as amended. (b) Subcontracts. The Contractor shall insert the text of this clause, including this paragraph (b), in subcontracts at any tier. The Contractor shall be responsible for compliance by any subcontractor or lower-tier subcontractor with the provisions set forth in paragraphs (a) through (b) of this clause. (End of clause) [FR Doc. 2017-09158 Filed 5-16-17; 8:45 am] BILLING CODE 8320-01-P
![Federal Register / Vol. 82, No. 94 / Wednesday, May 17, 2017 / Proposed Rules 22639
852.214–70, under the provisions of the List of Subjects order after ‘‘D&S Committee’’ to read as
Paperwork Reduction Act of 1995 (44 follows:
48 CFR Part 801
U.S.C. 3501–3521), no new or proposed * * * * *
revised collections of information are Administrative practice and Debarment and Suspension
associated with this proposed rule. The procedure, Government procurement, Committee means a committee
information collection requirements for Reporting and recordkeeping authorized by the debarring official to
§§ 48 CFR 814.201–6(a) and 852.214–70 requirements. assist the debarring official with
are currently approved by the Office of 48 CFR Part 802 debarment and suspension related
Management and Budget (OMB), have matters. The Debarment and Suspension
been assigned OMB control number Government procurement. Committee is also referred to as the D&S
2900–0593, and are being proposed for 48 CFR Part 803 Committee.
removal and discontinuance. * * * * *
Antitrust, Conflict of interest, ■ 5. Section 802.101 is amended to add
Regulatory Flexibility Act Government procurement. the following definition in alphabetical
This proposed rule will not have a 48 CFR Part 812 order after ‘‘Suspending Official’’ to
significant economic impact on a read as follows:
Government procurement.
substantial number of small entities as * * * * *
they are defined in the Regulatory 48 CFR Part 814 Suspension and debarring official
Flexibility Act, 5 U.S.C. 601–612. This Government procurement. means the Senior Procurement
proposed rule will generally be small Executive (SPE) or Deputy Senior
48 CFR Part 822 Procurement Executive (DSPE) if further
business neutral. The overall impact of
Government procurement, Labor. delegated in writing by the SPE. The
the proposed rule will be of benefit to
Suspension and Debarring Official is
small businesses owned by Veterans or 48 CFR Part 852 also referred to as the SDO.
service-disabled Veterans as the VAAR
is being updated to remove extraneous Government procurement, Reporting * * * * *
procedural information that applies and recordkeeping requirements.
PART 803—IMPROPER BUSINESS
only to VA’s internal operating Dated: May 2, 2017. PRACTICES AND PERSONAL
procedures. VA estimates no cost Janet Coleman, CONFLICTS OF INTEREST
impact to individual business resulting Chief, Office of Regulation Policy &
from these rule updates. On this basis, Management, Office of the Secretary, ■ 6. The authority citation for part 803
the adoption of this proposed rule will Department of Veterans Affairs. is revised to read as follows:
not have a significant economic impact For the reasons set out in the Authority: 38 U.S.C. 501; 40 U.S.C. 121(c);
on a substantial number of small entities preamble, VA proposes to amend 48 41 U.S.C. 1121(c)(3); and 48 CFR 1.301–
as they are defined in the Regulatory CFR, chapter 8, parts 801, 802, 803, 812, 1.304.
Flexibility Act, 5 U.S.C. 601–612. 814, 822, and 852 as follows:
Therefore, under 5 U.S.C. 605(b), this Subpart 803.1 [Removed and
proposed rule is exempt from the initial PART 801—DEPARTMENT OF Reserved]
and final regulatory flexibility analysis VETERANS AFFAIRS ACQUISITION ■ 7. Subpart 803.1 is removed and
requirements of sections 603 and 604. REGULATION SYSTEM reserved.
Unfunded Mandates ■ 1. The authority citation for part 801 803.204 [Amended]
is revised to read as follows: ■ 8. Section 803.204 is revised to read
The Unfunded Mandates Reform Act
of 1995 requires, at 2 U.S.C. 1532, that Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); as follows:
agencies prepare an assessment of 41 U.S.C. 1121(c)(3); and 48 CFR 1.301–
1.304. 803.204 Treatment of violations.
anticipated costs and benefits before (a) The SDO shall determine whether
issuing any rule that may result in the 801.106 OMB approval under the or not a violation of the Gratuities
expenditure by State, local, and tribal Paperwork Reduction Act. clause, 52.203–3 has occurred and what
governments, in the aggregate, or by the ■ 2. In section 801.106, table columns action will be taken under FAR 3.204(c).
private sector, of $100 million or more titled ‘‘48 CFR part or section where (c) When the SDO determines that a
(adjusted annually for inflation) in any identified and described’’ and ‘‘Current violation has occurred and that
one year. This proposed rule will have OMB Control Number,’’ are amended to debarment is being considered, he or
no such effect on State, local, and tribal remove the references to section she shall follow procedures at 809.406–
Governments or on the private sector. 852.214–70 and the corresponding OMB 3.
Control Number 2900–0593.
Signing Authority Subpart 803.3 [Removed and
The Secretary of Veterans Affairs, or PART 802—DEFINITIONS OF WORDS Reserved]
designee, approved this document and AND TERMS
■ 9. Subpart 803.3 is removed and
authorized the undersigned to sign and ■ 3. The authority citation for part 802 reserved.
nlaroche on DSK30NT082PROD with PROPOSALS
submit the document to the Office of the is revised to read as follows:
Federal Register for publication Subpart 803.4 [Removed and
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); Reserved]
electronically as an official document of 41 U.S.C. 1121(c)(3); and 48 CFR 1.301–
the Department of Veterans Affairs. Gina 1.304. ■ 10. Subpart 803.4 is removed and
S. Farrisee, Deputy Chief of Staff, reserved.
Department of Veterans Affairs, 802.101 Definitions
approved this document on May 1, 2017 ■ 4. Section 802.101 is amended to add 803.502 [Removed]
for publication. the following definition in alphabetical ■ 11. Section 803.502 is removed.
VerDate Sep<11>2014 13:26 May 16, 2017 Jkt 241001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\17MYP1.SGM 17MYP1](https://thefederalregister.org/doc/82_FR_22729/page/5.svg)
![22640 Federal Register / Vol. 82, No. 94 / Wednesday, May 17, 2017 / Proposed Rules
803.570 [Amended] 812.301 [Amended] (i) Furniture or fixtures are required
■ 12. Section 803.570–1 is revised to * * * * * for a single project and uniformity of
read as follows: ■ 19. Section 812.301, paragraph (b)(13) design is desirable.
is revise to read as follows: (ii) The articles required will be
803.570–1 Policy.
assembled and used as a unit.
VA policy prohibits contractors from 812.301 Solicitation provisions and
making references in its commercial contract clauses for the acquisition of * * * * *
advertising to VA contracts in a manner commercial items. ■ 24. Subsection 814.201–6 is added to
that states or implies the Government * * * * * read as follows:
approves or endorses the product or (b) * * * 814.201–6 Solicitation provisions.
service or considers it superior to other (13) 852.214–74, Marking of Bid
products or services. The intent of this (a) In an invitation for bid for
Samples. supplies, equipment, or services (other
policy is to preclude the appearance of * * * * *
bias toward any product or service. than construction), the contracting
officer shall define the extent to which
PART 814—SEALED BIDDING VA will authorize and consider
Subpart 803.6 [Removed and
Reserved] ■ 20. The authority citation for part 814 alternate bids.
is revised to read as follows: (1) The contracting officer shall
■ 13. Subpart 803.6 is removed and include the provision at 852.214–71,
reserved. Authority: 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); and 48 CFR 1.301–1.304. Restrictions on Alternate Items(s), in the
Subpart 803.7 [Removed and invitation when VA will consider an
Reserved] Subpart 814.1 [Removed and alternate item only where acceptable
Reserved] bids on a desired item are not received
■ 14. Subpart 803.7 is removed and or the bids do not satisfy the total
reserved. ■ 21. Subpart 814.1 is removed and requirement. (For construction projects,
reserved. VA will consider for acceptance an
Subpart 803.8 [Removed and alternate specified only as a part of the
Reserved] 814.201 [Removed and reserved]
basic item.)
■ 22. Section 814.201 is removed and (2) The contracting officer shall
■ 15. Subpart 803.8 is removed and
reserved. include the provision at 852.214–72,
reserved.
■ 23. Subsection 814.201–2 is added to Alternate Items, in the invitation, when
Subpart 803.11 [Added] read as follows: VA will consider an alternate item on an
814.201–2 Part I—The Schedule. equal basis with the item specified. (For
■ 16. Subpart 803.11 is added to read as
construction projects, VA will consider
follows: (b) Section B, Supplies or services and
for acceptance an alternate specified
prices.
Subpart 803.11—Preventing Personal only as a part of the basic item.)
(1) When the contracting officer
Conflicts of Interest for Contractor (3) In addition to either of the
determines that it will be to the
Employees Performing Acquisition provisions referenced in paragraphs
Government’s advantage to make an
Functions (b)(1) or (2) of this subsection, the
award on the basis of a summary bid,
contracting officer shall include the
803.1103 Procedures. the IFB shall include the following
provision at 852.214–73, Alternate
(a) By use of the contract clause at statement in Part I—The Schedule,
Packaging and Packing, in the invitation
52.203–16, Preventing Personal Section B:
when bids will be allowed based on
Conflicts of Interest, the contracting The award will be made on either the different packaging, unit designation,
officer shall require each contractor bid price for individual items or the etc.
whose employees perform acquisition summary bid price summary for all
(b) The contracting officer shall
functions closely associated with items, whichever results in the lowest
include the provision at 852.214–74,
inherently Governmental functions to price to the Government. Therefore, to
Marking of Bid Samples, in the
obtain from each covered employee a assure proper evaluation of all bids, a
invitation, along with the provision at
signed non-disclosure agreement to bidder quoting a summary bid price
FAR 52.214–20, Bid Samples, when the
prohibit disclosure of non-public must also quote a price on each
contracting officer determines that
information accessed through individual item included in the
samples are necessary to the proper
performance of a Government contract. summary bid price.
awarding of a contract.
See FAR 3.1103(a)(2)(iii). (2) When a contracting officer
■ 25. Subpart 814.2 is amended to add
determines that it will be to the
Subpart 803.70 [Removed and Government’s advantage to make an section 814.202 and subsection
Reserved] award by group or groups of items, the 814.202–4, to read as follows:
IFB shall include the following 814.202 General rules for solicitation of
■ 17. Subpart 803.70 is removed and
statement in Part I—The Schedule, bids.
reserved.
Section B:
Award shall be made on the basis of 814.202–4 Bid samples.
PART 812—ACQUISITION OF
nlaroche on DSK30NT082PROD with PROPOSALS
COMMERCIAL ITEMS the bid price for each identified group (a) Policy. When bid samples are
of items. The individual price of each required, the contracting officer shall
■ 18. The authority citation for part 812 line item in the group does not have to include a notice in the contract
is revised to read as follows: be the lowest bid received for that item. Schedule that requires bidders to submit
Authority: 38 U.S.C. 501; 40 U.S.C. 121(c); This may apply when the items in the samples produced by the manufacturer
41 U.S.C. 1121(c)(3); and 48 CFR 1.301– group or groups are readily available whose products will be supplied under
1.304. from sources to be solicited; and one of the contract.
* * * * * the following applies— (g) Handling bid samples.
VerDate Sep<11>2014 13:26 May 16, 2017 Jkt 241001 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\17MYP1.SGM 17MYP1](https://thefederalregister.org/doc/82_FR_22729/page/6.svg)
![Federal Register / Vol. 82, No. 94 / Wednesday, May 17, 2017 / Proposed Rules 22641
(1) Samples from successful bids shall PART 822—APPLICATION OF LABOR PART 852—SOLICITATION
be retained for the period of contract LAWS TO GOVERNMENT PROVISIONS AND CONTRACT
performance. ACQUISITIONS CLAUSES
(2) If the contracting officer
anticipates a claim regarding the Subpart 822.3—Contract Work Hours ■ 37. The authority citation for part 852
contract, the contracting officer shall and Safety Standards Act is revised to read as follows:
require that the bid samples be retained Sec. Authority: 38 U.S.C. 501, 8127–8128, and
until the claim is resolved. If there are 822.304 Variations, tolerances, and 8151–8153; 40 U.S.C. 121(c); 41 U.S.C.
no outstanding claims regarding the exemptions. 1121(c)(3); and 48 CFR 1.301–1.304.
contract, the contracting officer may 822.305 Contract clause. * * * * *
authorize disposal of the samples at the
end of the contract term in accordance 822.304 [Amended] Subpart 852.2—Texts of Provisions
with the bidder’s instructions. ■ 34. Section 822.304 is revised to read and Clauses
(3) The contracting officer shall as follows: 852.203–70 [Amended]
require that samples from unsuccessful 822.304 Variations, tolerances, and
bids be retained until award. After ■ 38. Section 852.203–70 is revised to
exemptions. read as follows:
award, these samples may be disposed
of in accordance with the bidder’s For contracts providing nursing home
852.203–70 Commercial Advertising.
instructions. care for veterans, the Secretary of Labor
has allowed a variation to the As prescribed in 803.570–2, insert the
814.203 [Removed] requirements of Contract Work Hours following clause:
■ 26. Section 814.203 is removed. and Safety Standards (the statute) (40
Commercial Advertising (Date)
U.S.C. 3701, et seq.) regarding the
814.204 [Removed] payment of overtime (see 29 CFR The contractor shall not make reference in
■ 27. Section 814.204 is removed. 5.15(d)(2). The variation provides that its commercial advertising to Department of
overtime may be calculated on a basis Veterans Affairs contracts in a manner that
814.208 [Removed] other than a 40 hour workweek (as an states or implies the Department of Veterans
■ 28. Section 814.208 is removed. alternate work period) when— Affairs approves or endorses the contractor’s
(a) Due to operational necessity or products or services or considers the
814.301 [Removed] contractor’s products or services superior to
convenience a work period of 14 other products or services.
■ 29. Section 814.301 is removed. consecutive days may be accepted in (End of clause)
lieu of the workweek of 7 consecutive
814.302 [Removed] days for the purpose of computing 852.203–71 [Removed and Reserved]
■ 30. Section 814.302 is removed. overtime compensation, pursuant to an
agreement or understanding arrived at ■ 39. Section 852.203–71 is removed
■ 31. Section 814.304 is amended by
between the contractor and the and reserved.
removing paragraphs (a) and (b) and
adding paragraph (f) to read as follows: contractors’ employees before * * * * *
performance of the work; and
814.304 Submission, modification and 852.214–70 [Removed and Reserved]
(b) If the contractor’s employees
withdrawal of bids. ■ 40. Section 852.214–70 is removed
receive compensation for employment
* * * * * in excess of 8 hours in any workday and and reserved.
(f) A notification to late bidders shall in excess of 80 hours in such 14-day 852.214–71 [Amended]
specify the final date by which VA must period at a rate not less than 11⁄2 times
receive evidence of timeliness. This date the regular rate at which the individual ■ 41. Section 852.214–71 is revised to
shall be within five calendar days of the is employed, computed in accordance read as follows:
date an electronic notice is sent to the with the requirements of the Fair Labor 852.214–71 Restrictions on alternate
bidder, or within ten calendar days of Standards Act of 1938, as amended. item(s).
receipt by the bidder of a notice sent by
other than electronic means. 822.305 [Amended] As prescribed in paragraph 814.201–
* * * * * ■ 35. Section 822.305 is revised to read 6(a)(1), insert the following provision:
as follows: Restrictions on Alternate Item(s) (Date)
Subpart 814.4 [Removed and
Reserved] 822.305 Contract clause.
Bids on [ ] * will be considered only if
The contracting officer shall insert the acceptable bids on [ ] ** are not received or
■ 32. Subpart 814.4 is removed and clause at 852.222–70, Contract Work do not satisfy the total requirement.
reserved. Hours and Safety Standards—Nursing * Contracting officer will insert an alternate
* * * * * Home Care for Veterans, in solicitations item that is considered acceptable.
** Contracting officer will insert the
and contracts for nursing home care for required item and item number.
PART 822—APPLICATION OF LABOR veterans. The contractor shall flow
LAWS TO GOVERNMENT (End of provision)
down this clause and insert in in all
nlaroche on DSK30NT082PROD with PROPOSALS
ACQUISITIONS subcontracts, at any tier. 852.214–72 [Amended]
■ 33. The authority citation for part 822 Subpart 822.4 [Removed and ■ 42. Section 852.214–72 is revised to
is revised to read as follows: Reserved] read as follows:
Authority: 29 CFR 5.15(d); 38 U.S.C. 501;
40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); and 48 ■ 36. Subpart 822.4 is removed and 852.214–72 Alternate item(s).
CFR 1.301–1.304. reserved. As prescribed in paragraph 814.201–
* * * * * * * * * * 6(a)(2), insert the following provision:
VerDate Sep<11>2014 13:26 May 16, 2017 Jkt 241001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\17MYP1.SGM 17MYP1](https://thefederalregister.org/doc/82_FR_22729/page/7.svg)
![22642 Federal Register / Vol. 82, No. 94 / Wednesday, May 17, 2017 / Proposed Rules
Alternate Item(s) (Date) 852.214–74 Marking of Bid Samples. Contract Work Hours and Safety Standards
As prescribed in paragraph 814.201– (the statute) (40 U.S.C. 3701, et seq.),
Bids on [ ] * will be given equal 6(b), insert the following provision: provided—
consideration along with bids on [ ] ** and (1) The Contractor or subcontractor is
any such bids received may be accepted if to Marking of Bid Samples (Date) primarily engaged in the care of nursing
the advantage of the Government. Tie bids home patients residing on the contractor’s or
will be decided in favor of [ ]. ** Any bid sample(s) furnished must be in the
quantities specified in the solicitation. Cases subcontractor’s premises;
* Contracting officer will insert an alternate
item that is considered acceptable. or packages must be plainly marked ‘Bid (2) There is an agreement or understanding
** Contracting officer will insert the Sample(s)’’ with the complete lettering/ between the Contractor or subcontractor and
required item and item number. numbering and description of the related bid their employees, before performance of work,
(End of provision) item(s), the number of the Invitation for Bids, that a work period of 14 consecutive days is
and the name of the bidder submitting the acceptable in lieu of a work period of 7
852.214–73 [Amended] bid sample(s). consecutive days for the purpose of overtime
(End of provision) compensation;
■ 43. Section 852.214–73 is revised to
read as follows: * * * * * (3) Employees receive overtime
compensation at a rate no less than 11⁄2 times
852.214–73 Alternate packaging and 852.222–70 [Amended] the employees’ regular hourly rate of pay for
packing. ■ 45. Section 852.222–70 is revised to work in excess of 80 hours in any 14 day
As prescribed in paragraph 814–201– read as follows: period; and
6(a)(3), insert the following provision: (4) Pay is otherwise computed in
852.222–70 Contract Work-Hours and accordance with the requirements of the Fair
Alternate Packaging and Packing (Date) Safety Standards—Nursing Home Care for
Labor Standards Act of 1938, as amended.
Veterans.
The bidders offer must clearly indicate the (b) Subcontracts. The Contractor shall
quantity, package size, unit, or other different
As prescribed in 822.305, insert the insert the text of this clause, including this
feature upon which the quote is made. following clause: paragraph (b), in subcontracts at any tier. The
Evaluation of the alternate or multiple Contract Work Hours and Safety Contractor shall be responsible for
alternates will be made on a common Standards—Nursing Home Care for compliance by any subcontractor or lower-
denominator such as per ounce, per pound, tier subcontractor with the provisions set
etc., basis. Veterans (Date)
forth in paragraphs (a) through (b) of this
(End of provision)
(a) No Contractor and subcontractor under clause.
this contract shall prohibit the payment of (End of clause)
852.214–74 [Amended] overtime wages to their employees for work
■ 44. Section 852.214–74 is revised to [FR Doc. 2017–09158 Filed 5–16–17; 8:45 am]
in excess of 40 hours in any workweek,
read as follows: which would otherwise be a violation of BILLING CODE 8320–01–P
nlaroche on DSK30NT082PROD with PROPOSALS
VerDate Sep<11>2014 13:26 May 16, 2017 Jkt 241001 PO 00000 Frm 00024 Fmt 4702 Sfmt 9990 E:\FR\FM\17MYP1.SGM 17MYP1](https://thefederalregister.org/doc/82_FR_22729/page/8.svg)
Document Created: 2017-05-17 01:42:25
Document Modified: 2017-05-17 01:42:25
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received on or before July 17, 2017 to be considered in the formulation of the final rule. | |
| Contact | Mr. Ricky L. Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW., Washington, DC 20001, (202) 632-5276. This is not a toll-free telephone number. | |
| FR Citation | 82 FR 22635 | |
| RIN Number | 2900-AP50 | |
| CFR Citation | 48
CFR
801 48 CFR 802 48 CFR 803 48 CFR 812 48 CFR 814 48 CFR 822 48 CFR 852 | |
| CFR Associated | Administrative Practice and Procedure; Government Procurement; Reporting and Recordkeeping Requirements; Antitrust; Conflict of Interest and Labor |
2026 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR