83 FR 12922 - Revise and Streamline VA Acquisition Regulation-Parts 811 and 832
DEPARTMENT OF VETERANS AFFAIRS Federal Register Volume 83, Issue 58 (March 26, 2018)
Federal Register Volume 83, Issue 58 (March 26, 2018)
| Page Range | 12922-12933 | |
| FR Document | 2018-04002 |
[Federal Register Volume 83, Number 58 (Monday, March 26, 2018)] [Proposed Rules] [Pages 12922-12933] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-04002] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS [8320-01] 48 CFR Parts 801, 811, 832, 852, and 870 RIN 2900-AP81 Revise and Streamline VA Acquisition Regulation--Parts 811 and 832 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proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove any procedural guidance internal to VA into the VA Acquisition Manual (VAAM), and to incorporate any new agency specific regulations or policies. These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors. The VAAM incorporates portions of the removed VAAR as well as other internal agency acquisition policy. VA will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are rewritten, we'll publish them in the Federal Register. VA will combine related topics, as appropriate. In particular, this rulemaking revises VAAR Parts 811-- Describing Agency Needs and Part 832--Contract Financing, as well as affected parts 801--Department of Veterans Affairs Acquisition Regulation System, 852--Solicitation Provisions and Contract Clauses, and 870--Special Procurement Controls. DATES: Comments must be received on or before May 25, 2018 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 1063B, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to ``RIN 2900-AP81--Revise and Streamline VA Acquisition Regulation to Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014- V004--parts 811, 832).'' Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, 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 Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington DC 20001, (202) 697-3565. (This is not a toll-free telephone number.) SUPPLEMENTARY INFORMATION: Background This rulemaking is issued under the authority of the Office of Federal Procurement Policy (OFPP) Act which provides the authority for an agency head to issue agency acquisition regulations that implement or supplement the FAR. VA is proposing to revise the VAAR to add new policy or regulatory requirements and to remove any redundant guidance and guidance that is applicable only to VA's internal operating processes or procedures. Codified acquisition regulations may be amended and revised only through rulemaking. All amendments, revisions, and removals have been reviewed and concurred with by VA's Integrated Product Team of agency stakeholders. The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are 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, as codified in 41 U.S.C. 1707, provides the authority for the Federal Acquisition Regulation and for the issuance of agency acquisition regulations consistent with the FAR. When Federal agencies acquire supplies and services using appropriated funds, the purchase is governed by the FAR, set forth at Title 48 Code of Federal Regulations (CFR), chapter 1, parts 1 through 53, and the agency regulations that implement and supplement the FAR. The VAAR is set forth at Title 48 CFR, chapter 8, parts 801 to 873. [[Page 12923]] Discussion and Analysis The VA proposes to make the following changes to the VAAR in this phase of its revision and streamlining initiative. For procedural guidance cited below that is proposed to be deleted from the VAAR, each section cited for removal has been considered for inclusion in VA's internal agency operating procedures in accordance with FAR 1.301(a)(2). Similarly, delegations of authority that are removed from the VAAR will be included in the VA Acquisition Manual (VAAM) as internal agency guidance. VAAR Part 801--Department of Veterans Affairs Acquisition Regulation System We propose to amend the authority for part 801 to remove the citation of 38 U.S.C. 501, and to add 41 U.S.C. 1121, 41 U.S.C. 1303, an updated positive law codification of, to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA; and 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA's Chief Acquisition Officer. This proposed rule contains existing information collection requirements. The proposed rule would result in multiple actions affecting these information collections, including outright removal of the information collection and redesignating the information collection burden associated with several clauses or provisions by renumbering the clause or provision. We propose to revise certain clause or provision numbers in VAAR part 801 only when removing the actual information collection and its associated burden, or when redesignating and renumbering the clause or provision under the associated Office of Management and Budget (OMB) approval number. In section 801.106, OMB approval under the Paperwork Reduction Act, we propose to amend section 801.106 table columns titled ``48 CFR part or section where identified and described,'' and ``Current OMB control number.'' We propose to remove the reference to section 832.006-4 and the associated OMB control number 2900-0688. This information collection burden under the associated OMB control number was previously removed via a published Notice of Office of Management and Budget Action dated March 2, 2015, Information Collection Reference (ICR) 201406-2900-017, which approved the removal of the information collection and a reduction of the associated burden under OMB approval number 2900-0688. Therefore, it is proposed for removal from this table. Information collection is approved at the FAR level under FAR OMB approval number 9000-0138, making it unnecessary for a separate information collection approval in the VAAR. In section 801.106, OMB approval under the Paperwork Reduction Act, we propose to amend section 801.106 table columns titled ``48 CFR part or section where identified and described,'' and ``Current OMB control number.'' We propose to remove the reference to subsection 852.211-71, Special Notice, and discontinue the corresponding OMB control number 2900-0588, as the provision conflicts with FAR 52.214-21. It currently requires literature to be provided after award and thus conflicts with the FAR and the Government's procedures for evaluating relevant materials during source selection and prior to award decisions. In section 801.106, in reference to the table described, we propose to remove the reference to subsection 852.211-73, Brand Name or Equal, and discontinue the corresponding OMB control number 2900-0585, as the topical area the clause covers, ``brand name or equal,'' or ``items peculiar to one manufacturer,'' has sufficient coverage in FAR 11.105 and the associated provision in FAR 52.211-6, Brand Name or Equal. In section 801.106, in reference to the table described, we propose to remove the reference to section 852.236-82, Payments under fixed- price construction contracts (without NAS), and remove the reference to section 852.236-83, Payments under fixed-price construction contracts (including NAS). Both of these clauses, pertaining to ``payments under fixed-price construction,'' have been renumbered to reflect their prescription under Part 832. The associated OMB control number 2900- 0422 will now reflect information collections under the new clause numbers--852.232-70 and 852.232-71 as described in further detail under the Paperwork Reduction Act section of this preamble, although these are not new collections. Subchapter B--Competition and Acquisition Planning We propose to revise the title of Subchapter B to conform to the title in the Federal Acquisition Regulation, 48 CFR, chapter 1, ``Acquisition Planning.'' VAAR Part 811--Describing Agency Needs We propose to revise the Table of Contents to reflect the revision of subparts 811.1 and 811.2, and the deletion of subparts 811.4, 811.5, and 811.6. We propose to revise the part 811 authorities to add 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA's Chief Acquisition Officer, and 41 U.S.C. 1303, an updated positive law codification to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA. We propose to remove section 811.001, Definitions, because the coverage in FAR 11.104 provides adequate coverage of what brand name or equal purchase descriptions must include. The VAAR had merely paraphrased the same information. In accordance with FAR drafting standards and the requirement in FAR 1.304(b)(1) that agency acquisition regulations shall not unnecessarily repeat, paraphrase, or otherwise restate material contained in the FAR, this section is therefore proposed for removal. In subpart 811.1, Selecting and Developing Requirements Documents, we propose to remove section 811.103, Market acceptance, and the underlying subsection 811.103-70, Technical industry standards. We propose to revise the prescription to clause 852.211-72, Technical industry standards, for clarity and simplification of the language, and to move the prescription of the clause to 811.204-70 to comport with the FAR structure, as technical industry standards are not related to coverage in FAR 11.103, but would fall under FAR 11.204. We propose to remove the section title at 811.104, Use of Brand Name or Equal purchase descriptions, and subsection at 811.104-70, Brand name or equal purchase descriptions, because FAR 11.104, provides adequate coverage of what brand name or equal purchase descriptions must include. We propose to remove subsections 811.104-71, Purchase description clauses, and 811.104-72, Limited application of brand name or equal, because the subject is adequately covered in FAR clause 52.211-6, Brand name or equal. [[Page 12924]] We propose to remove subsection 811.104-73, Bid samples, as coverage is adequate in FAR 14.202-4, and clause 52.214-20. We propose to remove subsection 811.104-74, Bid evaluation and award, since it duplicates coverage in FAR clause 52.211-6. We propose to remove subsection 811.104-75, Procedure for negotiated procurements, since there is no need to have separate policy and procedures for negotiated and sealed bid solicitations. FAR covers ``brand name or equal'' without a distinction between sealed bid and negotiated solicitations. We propose to remove 811.105, Items peculiar to one manufacturer, since the subject is adequately covered in FAR 11.105. In subpart 811.1, section 811.107, Contract clauses, we propose to amend the number and title of the existing section to read as 811.107- 70, Contract clause, to better reflect its placement in accordance with FAR numbering conventions. It fits intelligibly as a supplement to FAR 11.107, Solicitation provision, but the VAAR is supplementing with a clause in this area and not a provision, necessitating the more accurate title. Subsection 811.107-70 prescribes a new clause 852.211- 70, Equipment Operation and Maintenance Manuals, which replaces the existing clause 852.211-70, Service data manuals. In subpart 811.2, Using and Maintaining Requirements Documents, we propose to remove section 811.202, Maintenance of standardization documents, as it is procedural in nature and will be moved to the VAAM. Under subpart 811.2, we propose to revise and renumber section 811.204, Contract clause, to subsection 811.204-70, Contract clause, which contains text prescribing clause 852.211-72, Technical industry standards. The prescription for 852.211-72 was moved from 811.103-70 to better comport with FAR structure numbering and arrangement. We propose to remove subparts 811.4, Delivery or Performance Schedules, and 811.5, Liquidated Damages, as the policy is redundant to FAR guidance. We propose to remove subpart 811.6, Priorities and Allocations, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM. VAAR Part 832--Contract Financing We propose to revise the Table of Contents to reflect the revision of subparts 832.1, 832.2, 832.9 and 832.70, and the deletion of subparts 832.5, 832.8, and 832.11. We propose to revise the part 832 authorities to add 41 U.S.C. 1702, which addresses overall direction of procurement policy, acquisition planning and management responsibilities of VA's Chief Acquisition Officer; and 41 U.S.C. 1303, to include an updated positive law codification. We propose to add section 832.001, Definitions. This section would add three definitions of terms relating to electronic invoicing. We propose to amend subsection 832.006-1, General, to spell out the title of Senior Procurement Executive (SPE) and to delete the last sentence as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM. We propose to remove subsection 832.006-2, Definitions, which only included one definition for the Remedy Coordination Official (RCO). This information would be added in subsection 832.006-4 and would make the need for a separate definition repeating the same thing unnecessary. We propose to remove subsection 832.006-3, Responsibilities, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM. We propose to amend subsection 832.006-4, Procedures, to update the existing VA agency procedures and to delete paragraphs (a) and (c) as internal operating procedures of VA not having a significant effect beyond the internal operating procedures of the VA (see FAR 1.301(b)) and which will be moved to the VAAM. We propose to add new paragraphs (b), (e), and (g) to implement FAR required agency procedures which describes notifying contractors, the contractor's right to provide information on its behalf concerning a finding of fraud in payment requests, the time period to provide the information to the Government and that the Senior Procurement Executive (SPE) will provide a copy of each final determination and supporting documentation to the contractor, the RCO, the Contracting Officer, and the VA Office of Inspector General (OIG). In subpart 832.1, Non-Commercial Item Purchase Financing, we propose to amend section 832.111, Contract clauses for non-commercial purchases, to renumber the section as subsection 832.111-70, retitle it as ``VA contract clauses for non-commercial purchases,'' and to reconfigure the paragraphs to conform more closely to FAR prescription language for clauses and provisions. Also, the clauses were renumbered to reflect that they are prescribed in part 832 and not 836 as they were previously numbered, and the clauses were retitled for clarification. In subpart 832.2, Commercial Item Purchase Financing, we propose to remove section 832.201, Statutory authority, and move internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM. It contains a delegation of authority for Contracting Officers to make determinations regarding terms and conditions for payment for commercial items and whether they are appropriate, customary, and in the best interest of the Government. We propose to amend subsection 832.202-1, Policy, to make the paragraph comport with the corresponding FAR coverage, to reflect that Heads of Contracting Activities (HCAs) shall report no later than December 31 of each calendar year, to the Senior Procurement Executive (SPE) and Deputy Senior Procurement Executive (DSPE), on the number of contracts for commercial items with unusual contract financing, commercial interim or advance payments that were approved for the previous fiscal year (1 October 20XX-30 September 20XX). This would stipulate what is to be included in the report, the amount of such unusual contracting financing, commercial interim or advance payments that were approved, and the kind and amount of security obtained by the contractor for the advance. We propose to amend subsection 832.202-4, Security for Government financing, to make the paragraphs comport with the corresponding FAR coverage, and to delete the mention of a Dun and Bradstreet report. In subpart 832.4, Advance Payments for Non-Commercial Items, we propose to amend 832.402, General, to provide updated and revised VA procedures on who in the VA is delegated authority to make the determination described at FAR 32.402(c)(1)(iii) and to approve contract terms concerning advance payments. This is delegated to the Head of the Contracting Activity (HCA). Typically VA delegations are contained in the VAAM but here, where it may impact the use and approval of unique financing arrangements that contractors may need to be aware of, the delegation is being retained in the VAAR. We propose to amend section 832.404, Exclusions, to renumber the [[Page 12925]] paragraphs so it better comports with the FAR coverage and to clarify language and the citation of the authorities listed. We include information regarding the applicability of 31 U.S.C. 3324(d)(2), which allows VA to issue advance payment for subscriptions or other charges for newspapers, magazines, periodicals, and other publications for official use. In addition, the statutory authority is included in section 832.404 for 31 U.S.C. 1535, and permits the VA to issue advance payment for services and supplies obtained from another Government agency. Further, language is added that includes that as permitted by 5 U.S.C. 4109, VA is permitted to issue advance payment for all or any part of the necessary expenses for training Government employees, including obtaining professional credentials under 5 U.S.C. 5757, in Government or non-Government facilities, including the purchase or rental of books, materials, and supplies or services directly related to the training of a Government employee. We propose to remove subparts 832.5, Progress Payments Based on Costs and 832.8, Assignment of Claims, as both contain internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM. In subpart 832.9, Prompt Payment, we propose to revise section 832.904, Determining payment due dates, to remove the text, but retain the title in the VAAR as it is related to a new proposed subsection that will fall underneath it. The procedures in the text will be moved to the VAAM as internal operational procedures of the VA. We propose to add subsection 832.904-70 to implement OMB Memorandum M-11-32, dated September 14, 2011, and to encourage making payments to small business contractors within 15 days of receipt of invoice. We propose to remove subpart 832.11, Electronic Funds Transfer, and section 832.1106, EFT mechanisms, as they contain internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM. In subpart 832.70, Electronic Invoicing Requirements, we propose to amend section 832.7000, General, to reflect that the subpart contains policy requirements rather than procedures. We propose to remove section 832.7001, Definitions, since two of the definitions are provided in the FAR and the other relevant definitions have been moved to section 832.001, Definitions, which covers the entire part. We propose to revise the title to reflect ``Electronic payment requests,'' and to reflect text now in section 832.7002. We propose to remove section 832.7002, Electronic payment requests, as the content has been moved to 832.7001. We propose to amend subsection 832.7002-1, Data transmission, to renumber and redesignate it as subsection 832.7001-1; to remove the website address from paragraph (a); to require the address to be provided in the contract; and to delete from paragraph (b) a website which may in time become obsolete. We propose to amend subsection 832.7002-2, Contract clause, to renumber and redesignate it as subsection 832.7001-2. We also propose to add a stipulation to the prescription that the clause does not apply to contracts paid with the Governmentwide commercial purchase card. VAAR Part 852--Solicitation Provisions and Contract Clauses In part 852, we propose to amend the authority by adding 41 U.S.C. 1303 to include an updated positive law codification, to reflect additional authority of the VA as an executive agency to issue regulations that are essential to implement Governmentwide policies and procedures in the agency, as well as to issue additional policies and procedures required to satisfy the specific needs of the VA. We propose to amend section 852.211-70, Service data manuals, and to revise the title to read, ``Equipment Operation and Maintenance Manuals.'' This requires Contracting Officers to insert this revised clause in solicitations for technical medical equipment and devices, and/or other technical and mechanical equipment where the requiring activity determines manuals are a necessary requirement for operation and maintenance of the equipment. It removes the prior extensive detailed list of specific information that would need to be developed and instead relies on existing commercial industry practices to provide already developed commercial manuals. We propose to remove subsection 852.211-71, Special Notice, as it is redundant to guidance contained in the FAR. We propose to amend subsection 852.211-72, Technical industry standards, to more clearly set forth the requirements that the contractor shall conform to the standards reflected in the clause. It also requires the contractor to submit proof of conformance to the standard, how to obtain the standards and requires the offeror to contact the Contracting Officer if a response is not received within two weeks of the offeror's request. We propose to remove subsections 852.211-73, Brand Name or Equal; 852.211-74, Liquidated Damages; and 852.211-75, Product Specifications, as they are all redundant to guidance contained in the FAR. Also in part 852, we propose to add clause 852.232-70, Payments under fixed-price construction contracts (without NAS-CPM). This clause was formerly 852.236-82, Payments under fixed-price construction contracts (without NAS). This clause is revised to renumber it to 852.232-70 to reflect its prescription under part 832, and to revise the title of the ``NAS'' to ``NAS-CPM,'' to clarify the list of conditions in paragraph (c) for allowing progress payments for stored supplies and equipment, and to add a new paragraph (f) requiring notice to the contractor if retainage is to be made on a progress payment. We propose to add clause 852.232-71, Payments under fixed-price construction contracts (including NAS-CPM). This clause was formerly 852.236-83, Payments under fixed-price construction contracts (including NAS). This clause is revised to renumber it as 852.232-71 to agree with its prescription in Part 832, to revise the title of the ``NAS'' to ``NAS-CPM,'' and to clarify the list of conditions in paragraph (c) for allowing progress payments for stored supplies and equipment, and to add a new paragraph (f) requiring notice to the contractor if retainage is to be made on a progress payment. We propose to amend clause 852.232-72, Electronic Submission of Payment Requests, to revise the definition of ``designated agency office,'' and to delete a website address and system specifications. We propose to delete the clauses 852.236-82, Payments Under Fixed- Price Construction Contracts (without NAS), and 852.236-83, Payments Under Fixed-Price Construction Contracts (including NAS) as they have been renumbered to comport with FAR arrangements and more properly belong in VAAR part 832 as noted above. VAAR Part 870--Special Procurement Controls We propose to remove section 870.112, Telecommunications equipment, as it contains the [[Page 12926]] prescription and requirement for review of descriptive literature required by the clause 852.211-71, Special notice, which is proposed for removal as noted elsewhere in the preamble. We propose to remove section 870.113, Paid use of conference facilities, as it contains internal procedural guidance not having a significant effect beyond the internal operating procedures of VA (see FAR 1.301(b)) and which will be moved to the VAAM. Effect of Rulemaking Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent VA's implementation of its legal authority and publication of the Department of Veterans Affairs Acquisition Regulation (VAAR) for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with Federal Acquisition Regulation (FAR) subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts. Executive Order 12866, 13563 and 13771 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 website at http://www.va.gov/orpm by following the link for VA Regulations Published from FY 2004 Through Fiscal Year to Date. This proposed rule is expected to be an E.O. 13771 deregulatory action. Details on the estimated cost savings of this proposed rule can be found in the rule's economic analysis. Paperwork Reduction Act (PRA) This proposed rule impacts seven existing information collection requirements associated with six Office of Management and Budget (OMB) control number approvals. The proposed actions in this rule result in multiple actions affecting some of these information collections, such as: the proposed outright removal of the information collection; no change in information collection burdens although titles and numbers may be changed or the clauses moved to other parts of the VAAR; a reduction in existing information collection burdens; and the proposed redesignation of the existing approved OMB collection numbers and the associated burden as a result of two clauses we propose to both retitle and renumber. The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi). This proposed rule would impose the following amended information collection requirements to two of the six existing information collection approval numbers associated with this proposed rule. Although this action contains provisions constituting collections of information at 48 CFR 852.236-82 and 852.236-83, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed collections of information are associated with these clauses. The information collection requirements for 48 CFR 852.236-82 and 852.236- 83 are currently approved by the Office of Management and Budget (OMB) and have been assigned OMB control number 2900-0422. However, this information collection has been submitted to OMB to revise the title and to redesignate and renumber the two clauses currently numbered as sections 852.236-82, Payments Under Fixed-Price Construction Contracts (without NAS), and 852.236-83, Payments Under Fixed-Price Construction Contracts (including NAS). Accordingly, if approved, they would reflect the new designation and revised titles as set forth in the preamble and the amendatory language of this proposed rule to read: 852.232-70, Payments Under Fixed-Price Construction Contracts (without NAS-CPM), and 852.232-71, Payments Under Fixed-Price Construction Contracts (including NAS-CPM), respectively, under the associated OMB control number 2900-0422. The references to the old numbers--852.236-82 and 852.236-83, would accordingly be removed. There is no change in the information collection burden that is associated with this proposed request. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted these information collection amendments to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document. This proposed rule would impose the following amended information collection requirements to one of the six existing information collection approval numbers associated with this proposed rule. Although this action contains provisions constituting collections of information at 48 CFR 852.211-70, Service data manuals, under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), no new proposed information collection is associated with this clause. The information collection requirement for 48 CFR 852.211-70 is currently approved by OMB and has been assigned OMB control number 2900-0587. However, this information collection has been submitted to OMB [[Page 12927]] to revise the title from ``Service Data Manuals,'' to read, ``Equipment Operation and Maintenance Manuals.'' We propose to reflect the revised title as set forth in the preamble and the amendatory language of this proposed rule for this clause to read: 852.211-70, Equipment Operation and Maintenance Manuals, under the associated OMB control number 2900- 0587. We propose to remove the reference in the existing OMB control number to the old title. There is also a reduction in the information collection burden that is associated with this proposed request. The previously approved estimated annual hourly burden is 621 hours. As a result of revising the clause and removing the requirement to develop Government-specified service manuals, the VA has eliminated an unnecessary burden on the public by making use of commercial operation and maintenance manuals just like the general public and established commercial practices, thereby reducing by half the estimated annual hourly burden which is now estimated at 311 hours, a reduction of 310 annual hours. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document. This proposed rule would remove two of the six existing information collection requirements associated with this action at 48 CFR 852.211- 71, Special Notice, and 48 CFR 852.211-73, Brand Name or Equal. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501-3521), it discontinues the associated corresponding approved OMB control numbers, 2900-0588 and 2900-0585, respectively. As a result of this proposed rule, there is a removal in the information collection burden that is associated with the removal of these two information collection requirements. For 48 CFR 852.211-71, Special Notice, and its corresponding OMB control number 2900-0588, this results in a removal of 875 estimated annual burden hours. For 48 CFR 852.211-73, Brand Name or Equal, and its corresponding OMB control number 2900-0585, this results in a removal of 1,125 estimated annual burden hours. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection amendment to OMB for its review. Notice of OMB approval for this information collection will be published in a future Federal Register document. This proposed rule also contains two other provisions constituting a collection of information at 48 CFR 852.211-72, Technical industry standards, and 48 CFR 832.202-4, Security for Government financing, which remain unchanged. Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised collection of information is associated with these provisions as a part of this proposed rule. The information collection requirements for 48 CFR 852.211-72 and 48 CFR 832.202-4 are currently approved by the OMB and have been assigned OMB control numbers 2900-0586 and 2900-0688, respectively. The burden of these information collections remains unchanged. In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), the OMB has approved the reporting or recordkeeping provisions that are included in the clause and the text under section 832.202-4 cited above and has given the VA the following approval numbers: OMB 2900-0586 and OMB 2900-0688, respectively. Regulatory Flexibility Act This proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The overall impact of the proposed rule would 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 is merely adding existing and current regulatory requirements to the VAAR and removing any guidance that is applicable only to VA's internal operation processes or procedures. VA estimates no cost impact to individual business would result from these rule updates. This rulemaking does not change VA's policy regarding small businesses, does not have an economic impact to individual businesses, and there are no increased or decreased costs to small business entities. On this basis, the proposed rule would not have an economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this regulatory action is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal Governments or on the private sector. List of Subjects 48 CFR Part 801 Administrative practice and procedure, Government procurement, Reporting and recordkeeping requirements. 48 CFR Part 811and 832 Government procurement. 48 CFR Part 852 Government procurement, Reporting and recordkeeping requirements. 48 CFR Part 870 Asbestos, Frozen foods, Government procurement, Telecommunications. 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 August 7, 2017, for publication. Dated: February 22, 2018. Consuela Benjamin, 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, 811, 832, 852, and 870 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: 40 U.S.C. 121(c); 41 U.S.C. 1121; 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304. Subpart 801.1--Purpose, Authority, Issuance 801.106 [Amended] 0 2. Amend the section 801.106 table columns titled ``48 CFR part or section where identified and described'' and ``Current OMB control number'' to-- 0 a. Remove the reference to section 832.006-4 and OMB Control Number 2900-0668. [[Page 12928]] 0 b. Remove the reference to section 852.211-71 and OMB Control Number 2900-0588. 0 c. Remove the reference to section 852.211-73 and OMB Control Number 2900-0585. 0 d. Remove ``852.236-82 through'';. 0 e. Add the reference to sections 852.232-70 and 852.232-71 and OMB control number 2900-0422 on the same line. * * * * * SUBCHAPTER B--[Amended] 0 3. The title of subchapter B is revised to read as follows: SUBCHAPTER B--ACQUISITION PLANNING PART 811--DESCRIBING AGENCY NEEDS 0 4. The authority citation for part 811 is revised to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304. Sec. 811.001 [Removed] 0 5. Section 811.001 is removed. 0 6. Revise subpart 811.1 to read as follows: Subpart 811.1--Selecting and Developing Requirements Documents Sec. 811.107-70 Contract clause. The Contracting Officer shall insert the clause at 852.211-70, Equipment Operation and Maintenance Manuals, in solicitations and contracts for technical medical, and other technical and mechanical equipment and devices where the requiring activity determines manuals are a necessary requirement for operation and maintenance of the equipment. 0 7. Revise subpart 811.2 to read as follows: Subpart 811.2--Using and Maintaining Requirements Documents Sec. 811.204-70 Contract clause. The Contracting Officer shall insert the clause at 852.211-72, Technical industry Standards, in solicitations and contracts requiring conformance to technical industry standards, federal specifications, standards and commercial item descriptions unless comparable coverage is included in the item specification. Subpart 811.4--[Removed and reserved]. 0 8. Subpart 811.4 is removed and reserved. Subpart 811.5-- Removed and reserved] 0 9. Subpart 811.5 is removed and reserved. Subpart 811.6--[Removed and reserved] 0 10. Subpart 811.6 is removed and reserved. PART 832--CONTRACT FINANCING 0 11. The authority citation for part 832 is revised to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304. 0 12. Section 832.001 is added to read as follows: Sec. 832.001 Definitions. As used in this subpart: (a) Designated agency office means the office designated by the purchase order, agreement, or contract to first receive and review invoices. This office can be contractually designated as the receiving entity. This office may be different from the office issuing the payment. (b) Electronic form means an automated system transmitting information electronically according to the accepted electronic data transmission methods identified in 832.7002-1. Facsimile, email, and scanned documents are not acceptable electronic forms for submission of payment requests. (c) Payment request means any request for contract financing payment or invoice payment submitted by a contractor under a contract. 0 13. Revise section 832.006-1 to read as follows: Sec. 832.006-1 General. (b) The Senior Procurement Executive (SPE) is authorized to make determinations that there is substantial evidence that contractors' requests for advance, partial, or progress payments are based on fraud and may direct that further payments to the contractors be reduced or suspended, as provided in FAR 32.006. Sec. 832.006-2 [Removed]. Sec. 832.006-3 [Removed]. 0 14. Remove sections 832.006-2 and 832.006-3. 0 15. Section 832.006-4 is revised to read as follows: Sec. 832.006-4 Procedures. (b) The Remedy Coordination Official (RCO) for VA is the Deputy Senior Procurement Executive (DSPE) and shall carry out the responsibilities of the Secretary or designee in FAR 32.006-4(b). To determine whether substantial evidence exists that the request for payment under a contract is based on fraud. (e) The RCO shall carry out the responsibilities of the agency head in FAR 32.006-4(e) to notify the contractor of the reasons for the recommended action and of its right to submit information within a reasonable period of time in response to the proposed action under FAR 32.006. (1) The notice of proposed action will be sent to the last known address of the contractor, the contractor's counsel, or agent for service of process, by certified mail, return receipt requested, or any other method that provides signed evidence of receipt. In the case of a business, the notice of proposed action may be sent to any partner, principal, officer, director, owner or co-owner, or joint venture. The contractor will be afforded an opportunity to appear before the RCO to present information or argument in person or through a representative and may supplement the oral presentation with written information and argument. (2) The contractor may supplement the oral presentation with written information and argument. The proceedings will be conducted in an informal manner and without the requirement for a transcript. If the RCO does not receive a reply from the contractor within 30 calendar days, the RCO will base his or her recommendations on the information available. Any recommendation of the RCO under FAR 31.006-4(a) and paragraph (b) of this section, must address the results of this notification and the information, if any, provided by the contractor. After reviewing all the information, the RCO shall make a recommendation to the SPE whether or not substantial evidence of fraud exists. (g) In addition to following the procedures in FAR 32.006-4, the SPE shall provide a copy of each final determination and the supporting documentation to the contractor, the RCO, the Contracting Officer, and the OIG. The Contracting Officer will place a copy of the determination and the supporting documentation in the contract file. Subpart 832.1--Non-Commercial Item Purchase Financing 0 16. Section 832.111 is revised to read as follows: [[Page 12929]] Sec. 832.111-70 VA contract clauses for non-commercial purchases. (a)(1) Insert the clause at 852.232-70, Payments under fixed-price construction contracts (without NAS-CPM) in solicitations and contracts that contain the FAR clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, and if the solicitation or contract does not require use of the ``Network Analysis System--Critical Path Method (NAS-CPM).'' (2) If the solicitation or contract includes guarantee period services, the Contracting Officer shall use the clause with its Alternate I. (b)(1) Insert the clause at 852.232-71, Payments under fixed-price construction contracts (including NAS-CPM), in solicitations and contracts that contain the FAR clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, and if the solicitation or contract requires use of the ``Network Analysis System--Critical Path Method (NAS-CPM).'' (2) If the solicitation or contract includes guarantee period services, the Contracting Officer shall use the clause with its Alternate I. Subpart 832.2--Commercial Item Purchase Financing Sec. 832.201 [Removed]. 0 17. Section 832.201 is removed. 0 18. Section 832.202-1 is revised to read as follows: Sec. 832.202-1 Policy. (d) HCAs shall report, no later than December 31st of each calendar year, to the Senior Procurement Executive (SPE) and the DSPE, on the number of contracts for commercial items with unusual contract financing or with commercial interim or advance payments approved for the previous fiscal year. The report shall include the contract number and amount, the amount of the unusual contract financing or with commercial interim or advance payments approved, and the kind and amount of security obtained for the advance. 0 19. Section 832.202-4 is revised to read as follows: Sec. 832.202-4 Security for Government financing. (a)(2) An offeror's financial condition may be considered adequate security to protect the Government's interest when the Government provides contract financing. In assessing the offeror's financial condition, the Contracting Officer may obtain, to the extent required, the following information-- (i) A current year interim balance sheet and income statement and balance sheets and income statements for the two preceding fiscal years. The statements should be prepared in accordance with generally accepted accounting principles and must be audited and certified by an independent public accountant or an appropriate officer of the firm; (ii) A cash flow forecast for the remainder of the contract term showing the planned origin and use of cash within the firm or branch performing the contract; (iii) Information on financing arrangements disclosing the availability of cash to finance contract performance, the contractor's exposure to financial risk, and credit arrangements; (iv) A statement of the status of all State, local, and Federal tax accounts, including any special mandatory contributions; (v) A description and explanation of the financial effects of any leases, deferred purchase arrangements, patent or royalty arrangements, insurance, planned capital expenditures, pending claims, contingent liabilities, and other financial aspects of the business; and (vi) Any other financial information deemed necessary. Subpart 832.4--Advance Payments for Non-Commercial Items 0 20. Section 832.402 is revised to read as follows: Sec. 832.402 General. (c)(1)(iii) The authority to make the determination required by FAR 32.402(c)(1)(iii) and to approve contract terms is delegated to the head of the contracting activity (HCA). The request for approval shall include the information required by FAR 32.409-1 and shall address the standards for advance payment in FAR 32.402(c)(2). HCAs shall report, no later than December 31st of each calendar year, to the Senior Procurement Executive (SPE) and the DSPE, on number of contracts for non-commercial items with advance payments approved in the previous fiscal year. The report shall include the contract number and amount, the amount of the advance payment, and the kind and amount of security obtained for the advance. 0 21. Amend section 832.404 by revising paragraph (b) to read as follows: Sec. 832.404 Exclusions. * * * * * (b)(1) As permitted by 31 U.S.C. 3324(d)(2), VA allows advance payment for subscriptions or other charges for newspapers, magazines, periodicals, and other publications for official use, notwithstanding the provisions of 31 U.S.C. 3324(a). The term ``other publications'' includes any publication printed, microfilmed, photocopied or magnetically or otherwise recorded for auditory or visual use. (2) As permitted by 31 U.S.C. 1535, VA allows advance payment for services and supplies obtained from another Government agency. (3) As permitted by 5 U.S.C. 4109, VA allows advance payment for all or any part of the necessary expenses for training Government employees, including obtaining professional credentials under 5 U.S.C. 5757, in Government or non-Government facilities, including the purchase or rental of books, materials, and supplies or services directly related to the training of a Government employee. * * * * * Subpart 832.5--5 [Removed and reserved]. 0 22. Subpart 832.5 is removed and reserved. Subpart 832.8 [Removed and reserved]. 0 23. Subpart 832.8 is removed and reserved. Subpart 832.9--Prompt Payment Sec. 832.904 [Redesignated as 832.904-70]. 0 24. Redesignate section 832.904 as 832.904-70 and revise newly redesignated section 832.904-70 to read as follows: Sec. 832.904-70 Determining payment due dates for small businesses. Pursuant to Office of Management and Budget Memorandum M-11-32, dated September 14, 2011, Contracting Officers shall, to the full extent permitted by law, make payments to small business contractors as soon as practicable, with the goal of making payments within 15 days of receipt of a proper invoice and confirmation that the goods and services have been received and accepted by the Federal Government. Sec. 832.11 [Removed and reserved]. 0 25. Subpart 832.11 is removed and reserved. 0 26. Revise subpart 832.70 to read as follows: Subpart 832.70--Electronic Invoicing Requirements Sec 832.7000 General 832.7001 Electronic payment requests 832.7001-1 Data transmission 832.7001-2 Contract clause [[Page 12930]] Sec. 832.7000 General. This subpart prescribes policy requirements for submitting and processing payment requests in electronic form. Sec. 832.7001 Electronic payment requests. (a) The contractor shall submit payment requests in electronic form unless directed by the Contracting Officer to submit payment requests by mail. Purchases paid with a Government-wide commercial purchase card are considered to be an electronic transaction for purposes of this rule, and therefore no additional electronic invoice submission is required. (b) The Contracting Officer may direct the contractor to submit payment requests by mail, through the United States Postal Service, to the designated agency office for-- (1) Awards made to foreign vendors for work performed outside the United States; (2) Classified contracts or purchases when electronic submission and processing of payment requests could compromise the safeguarding of classified or privacy information; (3) Contracts awarded by Contracting Officers in the conduct of emergency operations, such as responses to national emergencies; (4) Solicitations or contracts in which the designated agency office is a VA entity other than the VA Financial Services Center in Austin, Texas; or (5) Solicitations or contracts in which the VA designated agency office does not have electronic invoicing capability as described above. Sec. 832.7001-1 Data transmission. The contractor shall submit electronic payment requests through-- (a) VA's Electronic Invoice Presentment and Payment System at the current website address provided in the contract; or (b) A system that conforms to the X12 electronic data interchange (EDI) formats established by the Accredited Standards Center (ASC) chartered by the American National Standards Institute (ANSI). Sec. 832.7001-2 Contract clause. The Contracting Officer shall insert the clause at 852.232-72, Electronic submission of payment requests, in solicitations and contracts exceeding the micro-purchase threshold, except those for which the Contracting Officer has directed otherwise under 832.7001, and those paid with a Governmentwide commercial purchase card. PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 27. The authority citation for part 852 is revised to read as follows: Authority: 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304. Subpart 852.2--Text of Provisions and Clauses 0 28. Section 852.211-70 is revised to read as follows: Sec. 852.211-70 Equipment Operation and Maintenance Manuals. As prescribed in 811.107-70, insert the following clause: EQUIPMENT OPERATION AND MAINTENANCE MANUALS (DATE) The contractor shall follow standard commercial practices to furnish manual(s), handbook(s) or brochure(s) containing operation, installation, and maintenance instructions, including pictures or illustrations, schematics, and complete repair/test guides, as necessary, for technical medical equipment and devices, and/or other technical and mechanical equipment provided per CLIN(s) # (Contracting Officer insert CLIN information). The manuals, handbooks or brochures shall be provided in hard copy, soft copy or with electronic access instructions, consistent with standard industry practices for the equipment or device. Where applicable, the manuals, handbooks or brochures will include electrical data and connection diagrams for all utilities. The documentation shall also contain a complete list of all replaceable parts showing part number, name, and quantity required. (End of clause) Sec. 852.211-71 [Removed and reserved]. 0 29. Section 852.211-71 is removed and reserved. 0 30. Section 852.211-72 is revised to read as follows: Sec. 852.211-72 Technical Industry Standards. As prescribed in 811.204-70, insert the following clause: TECHNICAL INDUSTRY STANDARDS (DATE) (a) The contractor shall conform to the standards established by: (Contracting Officer: Insert name of organization establishing the requirement, reference title, cite and date, e.g., United States Department of Agriculture (USDA), Institutional Meat Purchase Specifications (IMPS), Series 100, Beef products, Jan 2010) as to (Contracting Officer: Insert item and CLIN, e.g. CLIN 0005 Ground Beef). (b) The contractor shall submit proof of conformance to the standard. This proof may be a label or seal affixed to the equipment or supplies, warranting that the item(s) have been tested in accordance with the standards and meet the contract requirement. Proof may also be furnished by the organization listed above certifying that the item(s) furnished have been tested in accordance with and conform to the specified standards. (c) Offerors may obtain the standards cited in this provision by submitting a request, including the solicitation number, title and number of the publication to: (Organization)__ (Mail or email address) __ (d) The offeror shall contact the Contracting Officer if response is not received within two weeks of the request. (End of clause) Sec. 852.211-73 [Removed and reserved]. Sec. 852.211-74 [Removed and reserved]. Sec. 852.211-75 [Removed and reserved]. 0 31. Remove and reserve sections 852.211-73 through 852.211-75. 0 32. Add section 852.232-70 to read as follows: Sec. 852.232-70 Payments under fixed-price construction contracts (without NAS-CPM). As prescribed in 832.111-70, insert the following clause in contracts that do not contain a section entitled ``Network Analysis System--Critical Path Method (without NAS-CPM)'' Payments Under Fixed-Price Construction Contracts (Without NAS-CPM) (Date) The clause FAR 52.232-5, Payments under Fixed-Price Construction Contracts, is implemented as follows: (a) Retainage. (1) The Contracting officer may retain funds-- (i) Where performance under the contract has been determined to be deficient or the Contractor has performed in an unsatisfactory manner in the past; or (ii) As the contract nears completion, to ensure that deficiencies will be corrected and that completion is timely. (2) Examples of deficient performance justifying a retention of funds include, but are not restricted to, the following-- (i) Unsatisfactory progress as determined by the Contracting Officer; (ii) Failure to meet schedule in Schedule of Work Progress; (iii) Failure to present submittals in a timely manner; or (iv) Failure to comply in good faith with approved subcontracting plans, certifications, or contract requirements. (3) Any level of retention shall not exceed 10 percent either where there is determined to be unsatisfactory performance, or when the retainage is to ensure satisfactory completion. Retained amounts shall be paid promptly upon completion of all contract requirements, but nothing contained in this subparagraph shall be construed as limiting the Contracting Officer's right to withhold funds under other provisions of the contract or in accordance with the general law and [[Page 12931]] regulations regarding the administration of Government contracts. (b) The Contractor shall submit a schedule of cost to the Contracting Officer for approval within 30 calendar days after date of receipt of notice to proceed. Such schedule will be signed and submitted in triplicate. The approved cost schedule will be one of the bases for determining progress payments to the Contractor for work completed. This schedule shall show cost by the work activity/ event for each building or unit of the contract, as instructed by the resident engineer. (1) The work activities/events shall be subdivided into as many sub-activities/events as are necessary to cover all component parts of the contract work. (2) Costs as shown on this schedule must be true costs and the resident engineer may require the Contractor to submit the original estimate sheets or other information to substantiate the detailed makeup of the schedule. (3) The sums of the sub-activities/events, as applied to each work activity/event, shall equal the total cost of such work activity/event. The total cost of all work activities/events shall equal the contract price. (4) Insurance and similar items shall be prorated and included in the cost of each branch of the work. (5) The cost schedule shall include separate cost information for the systems listed in the table in this subparagraph (b)(5). The percentages listed below are proportions of the cost listed in the Contractor's cost schedule and identify, for payment purposes, the value of the work to adjust, correct and test systems after the material has been installed. Payment of the listed percentages will be made only after the Contractor has demonstrated that each of the systems is substantially complete and operates as required by the contract. Value of Adjusting, Correcting, and Testing System ------------------------------------------------------------------------ System Percent ------------------------------------------------------------------------ Pneumatic tube system................................... 10 Incinerators (medical waste and trash).................. 5 Sewage treatment plant equipment........................ 5 Water treatment plant equipment......................... 5 Washers (dish, cage, glass, etc.)....................... 5 Sterilizing equipment................................... 5 Water distilling equipment.............................. 5 Prefab temperature rooms (cold, constant temperature)... 5 Entire air-conditioning system (Specified under 600 5 Sections).............................................. Entire boiler plant system (Specified under 700 5 Sections).............................................. General supply conveyors................................ 10 Food service conveyors.................................. 10 Pneumatic soiled linen and trash system................. 10 Elevators and dumbwaiters............................... 10 Materials transport system.............................. 10 Engine-generator system................................. 5 Primary switchgear...................................... 5 Secondary switchgear.................................... 5 Fire alarm system....................................... 5 Nurse call system....................................... 5 Intercom system......................................... 5 Radio system............................................ 5 TV (entertainment) system............................... 5 ------------------------------------------------------------------------ (c) In addition to this cost schedule, the Contractor shall submit such unit costs as may be specifically requested. The unit costs shall be those used by the Contractor in preparing its bid and will not be binding as pertaining to any contract changes. (d) The Contracting Officer will consider for monthly progress payments material and/or equipment procured by the Contractor and stored on the construction site, as space is available, or at a local approved location off the site, under such terms and conditions as the Contracting Officer approves, including but not limited to the following-- (1) The materials or equipment are in accordance with the contract requirements and/or approved samples and shop drawings; (2) The materials and/or equipment are approved by the resident engineer; (3) The materials and/or equipment are stored separately and are readily available for inspection and inventory by the resident engineer; (4) The materials and/or equipment are protected against weather, theft and other hazards and are not subjected to deterioration; and (5) The Contractor obtains the concurrence of its surety for off-site storage. (e) The Government reserves the right to withhold payment until samples, shop drawings, engineer's certificates, additional bonds, payrolls, weekly statements of compliance, proof of title, nondiscrimination compliance reports, or any other requirements of this contract, have been submitted to the satisfaction of the Contracting officer. (f) The Contracting Officer will notify the Contractor in writing within 10 calendar-days of exercising retainage against any payment in accordance with FAR clause 52.232-5(e). The notice shall disclose the amount of the retainage in value and percent retained from the payment, and provide explanation for the retainage. (End of clause) Alternate I (DATE). If the specifications include guarantee period services, the Contracting officer shall include the following paragraphs as additions to paragraph (b) of the basic clause: (6)(i) The Contractor shall at the time of contract award furnish the total cost of the guarantee period services in accordance with specification section(s) covering guarantee period services. The Contractor shall submit, within 15 calendar days of receipt of the notice to proceed, a guarantee period performance program that shall include an itemized accounting of the number of work-hours required to perform the guarantee period service on each piece of equipment. The Contractor shall also submit the established salary costs, including employee fringe benefits, and what the contractor reasonably expects to pay over the guarantee period, all of which will be subject to the Contracting officer's approval. (ii) The cost of the guarantee period service shall be prorated on an annual basis and paid in equal monthly payments by VA during the period of guarantee. In the event the installer does not perform satisfactorily during this period, all payments may be withheld and the Contracting Officer shall inform the contractor of the unsatisfactory performance, allowing the contractor 10 days to correct deficiencies and comply with the contract. The guarantee period service is subject to those provisions as set forth in the Payments and Default clauses. 0 33. Add section 852.232-71 to read as follows: [[Page 12932]] Sec. 852.232-71 Payments under fixed-price construction contracts (including NAS-CPM). As prescribed in 832.111-70, insert the following clause in contracts that contain a section entitled ``Network Analysis System-- Critical Path Method (NAS-CPM).'' Payments Under Fixed-Price Construction Contracts (Including NAS-CPM) (Date) The clause FAR 52.232-5, Payments under Fixed-Price Construction Contracts, is implemented as follows: (a) Retainage. (1) The Contracting Officer may retain funds-- (i) Where performance under the contract has been determined to be deficient or the Contractor has performed in an unsatisfactory manner in the past; or (ii) As the contract nears completion, to ensure that deficiencies will be corrected and that completion is timely. (2) Examples of deficient performance justifying a retention of funds include, but are not restricted to, the following-- (i) Unsatisfactory progress as determined by the Contracting Officer; (ii) Failure to meet schedule in Schedule of Work Progress; (iii) Failure to present submittals in a timely manner; or (iv) Failure to comply in good faith with approved subcontracting plans, certifications, or contract requirements. (3) Any level of retention shall not exceed 10 percent either where there is determined to be unsatisfactory performance, or when the retainage is to ensure satisfactory completion. Retained amounts shall be paid promptly upon completion of all contract requirements, but nothing contained in this subparagraph shall be construed as limiting the Contracting Officer's right to withhold funds under other provisions of the contract or in accordance with the general law and regulations regarding the administration of Government contracts. (b) The Contractor shall submit a schedule of costs in accordance with the requirements of section ``Network Analysis System -- Critical Path Method (NAS-CPM)'' to the Contracting Officer for approval within 90 calendar days after date of receipt of notice to proceed. The approved cost schedule will be one of the bases for determining progress payments to the Contractor for work completed. (1) Costs as shown on this schedule must be true costs and the resident engineer may require the contractor to submit its original estimate sheets or other information to substantiate the detailed makeup of the cost schedule. (2) The total costs of all work activities/events shall equal the contract price. (3) Insurance and similar items shall be prorated and included in each work activity/event cost of the critical path method (CPM). (4) The CPM shall include a separate cost loaded activity for adjusting and testing of the systems listed in the table in paragraph (b)(5) of this section. The percentages listed below will be used to determine the cost of adjust and test work activities/ events and identify, for payment purposes, the value of the work to adjust, correct and test systems after the material has been installed. (5) Payment for adjust and test activities will be made only after the Contractor has demonstrated that each of the systems is substantially complete and operates as required by the contract. Value of Adjusting, Correcting, and Testing System ------------------------------------------------------------------------ System Percent ------------------------------------------------------------------------ Pneumatic tube system................................... 10 Incinerators (medical waste and trash).................. 5 Sewage treatment plant equipment........................ 5 Water treatment plant equipment......................... 5 Washers (dish, cage, glass, etc.)....................... 5 Sterilizing equipment................................... 5 Water distilling equipment.............................. 5 Prefab temperature rooms (cold, constant temperature)... 5 Entire air-conditioning system (Specified under 600 5 Sections).............................................. Entire boiler plant system (Specified under 700 5 Sections).............................................. General supply conveyors................................ 10 Food service conveyors.................................. 10 Pneumatic soiled linen and trash system................. 10 Elevators and dumbwaiters............................... 10 Materials transport system.............................. 10 Engine-generator system................................. 5 Primary switchgear...................................... 5 Secondary switchgear.................................... 5 Fire alarm system....................................... 5 Nurse call system....................................... 5 Intercom system......................................... 5 Radio system............................................ 5 TV (entertainment) system............................... 5 ------------------------------------------------------------------------ (c) In addition to this cost schedule, the Contractor shall submit such unit costs as may be specifically requested. The unit costs shall be those used by the Contractor in preparing its bid and will not be binding as pertaining to any contract changes. (d) The Contracting Officer will consider for monthly progress payments material and/or equipment procured by the Contractor and stored on the construction site, as space is available, or at a local approved location off the site, under such terms and conditions as the Contracting Officer approves, including but not limited to the following-- (1) The materials or equipment are in accordance with the contract requirements and/or approved samples and shop drawings; (2) The materials and/or equipment are approved by the resident engineer; (3) The materials and/or equipment are stored separately and are readily available for inspection and inventory by the resident engineer; (4) The materials and/or equipment are protected against weather, theft and other hazards and are not subjected to deterioration; and (5) The contractor obtains the concurrence of its surety for off-site storage. (e) The Government reserves the right to withhold payment until samples, shop drawings, engineer's certificates, additional bonds, payrolls, weekly statements of compliance, proof of title, nondiscrimination compliance reports, or any other requirements of this contract, have been submitted to the satisfaction of the Contracting Officer. (f) The Contracting Officer will notify the Contractor in writing within 10 calendar-days of exercising retainage against any payment in accordance with FAR clause 52.232-5(e). The notice shall disclose the amount of the retainage in value and percent retained from the payment, and provide explanation for the retainage. (End of clause) Alternate I (DATE). If the specifications include guarantee period services, the Contracting officer shall include the [[Page 12933]] following paragraphs as additions to paragraph (b) of the basic clause: (6)(i) The Contractor shall show on the critical path method (CPM) the total cost of the guarantee period services in accordance with the guarantee period service section(s) of the specifications. This cost shall be priced out when submitting the CPM cost loaded network. The cost submitted shall be subject to the approval of the Contracting Officer. The activity on the CPM shall have money only and not activity time. (ii) The Contractor shall submit with the CPM a guarantee period performance program which shall include an itemized accounting of the number of work-hours required to perform the guarantee period service on each piece of equipment. The Contractor shall also submit the established salary costs, including employee fringe benefits, and what the contractor reasonably expects to pay over the guarantee period, all of which will be subject to the Contracting Officer's approval. (iii) The cost of the guarantee period service shall be prorated on an annual basis and paid in equal monthly payments by VA during the period of guarantee. In the event the installer does not perform satisfactorily during this period, all payments may be withheld and the Contracting Officer shall inform the contractor of the unsatisfactory performance, allowing the Contractor 10 days to correct and comply with the contract. The guarantee period service is subject to those provisions as set forth in the Payments and Default clauses. 0 34. Section 852.232-72 is revised to read as follows: Sec. 852.232-72 Electronic submission of payment requests. As prescribed in 832.7001-2, insert the following clause: Electronic Submission of Payment Requests (Date) (a) Definitions. As used in this clause-- (1) Contract financing payment has the meaning given in FAR 32.001. (2) Designated agency office means the office designated by the purchase order, agreement, or contract to first receive and review invoices. This office can be contractually designated as the receiving entity. This office may be different from the office issuing the payment. (3) Electronic form means an automated system transmitting information electronically according to the accepted electronic data transmission methods and formats identified in paragraph (c) of this clause. Facsimile, email, and scanned documents are not acceptable electronic forms for submission of payment requests. (4) Invoice payment has the meaning given in FAR 32.001. (5) Payment request means any request for contract financing payment or invoice payment submitted by the contractor under this contract. (b) Electronic payment requests. Except as provided in paragraph (e) of this clause, the contractor shall submit payment requests in electronic form. Purchases paid with a Government-wide commercial purchase card are considered to be an electronic transaction for purposes of this rule, and therefore no additional electronic invoice submission is required. (c) Data transmission. A contractor must ensure that the data transmission method and format are through one of the following: (1) VA's Electronic Invoice Presentment and Payment System at the current website address provided in the contract. (2) Any system that conforms to the X12 electronic data interchange (EDI) formats established by the Accredited Standards Center (ASC) and chartered by the American National Standards Institute (ANSI). (d) Invoice requirements. Invoices shall comply with FAR 32.905. (e) Exceptions. If, based on one of the circumstances below, the Contracting Officer directs that payment requests be made by mail, the contractor shall submit payment requests by mail through the United States Postal Service to the designated agency office. Submission of payment requests by mail may be required for-- (1) Awards made to foreign vendors for work performed outside the United States; (2) Classified contracts or purchases when electronic submission and processing of payment requests could compromise the safeguarding of classified or privacy information; (3) Contracts awarded by Contracting Officers in the conduct of emergency operations, such as responses to national emergencies; (4) Solicitations or contracts in which the designated agency office is a VA entity other than the VA Financial Services Center in Austin, Texas; or (5) Solicitations or contracts in which the VA designated agency office does not have electronic invoicing capability as described above. (End of clause) Sec. 852.236-82 [Removed and reserved]. Sec. 852.236-83 [Removed and reserved]. 0 35. Remove and reserve sections 852.236-82 and 852.236-83. PART 870--SPECIAL PROCUREMENT CONTROLS 0 36. The authority citation for part 870 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. Sec. 870.112 [Removed] Sec. 870.113 [Removed] 0 37. Remove sections 870. 112 and 870.113. [FR Doc. 2018-04002 Filed 3-23-18; 8:45 am] BILLING CODE 8320-01-P
![12922 Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules
request as meeting Federal requirements Dated: March 15, 2018. Acquisition Regulation to Adhere to
and does not impose additional Alexandra Dapolito Dunn, Federal Acquisition Regulation
requirements beyond those imposed by Regional Administrator, EPA Region 1. Principles (VAAR Case 2014–V004—
state law. For that reason, this proposed [FR Doc. 2018–06005 Filed 3–23–18; 8:45 am] parts 811, 832).’’ Copies of comments
action: BILLING CODE 6560–50–P
received will be available for public
• Is not a significant regulatory action inspection in the Office of Regulation
subject to review by the Office of Policy and Management, Room 1063B,
Management and Budget under between the hours of 8:00 a.m. and 4:30
DEPARTMENT OF VETERANS p.m., Monday through Friday (except
Executive Orders 12866 (58 FR 51735,
AFFAIRS holidays). Please call (202) 461–4902 for
October 4, 1993) and 13563 (76 FR 3821,
January 21, 2011); [8320–01] an appointment. (This is not a toll-free
• does not impose an information number.) In addition, during the
collection burden under the provisions 48 CFR Parts 801, 811, 832, 852, and comment period, comments may be
of the Paperwork Reduction Act (44 870 viewed online through the Federal
U.S.C. 3501 et seq.); Docket Management System (FDMS) at
RIN 2900–AP81 www.Regulations.gov.
• is certified as not having a
significant economic impact on a Revise and Streamline VA Acquisition FOR FURTHER INFORMATION CONTACT: Mr.
substantial number of small entities Regulation—Parts 811 and 832 Ricky Clark, Senior Procurement
under the Regulatory Flexibility Act (5 Analyst, Procurement Policy and
U.S.C. 601 et seq.); AGENCY: Department of Veterans Affairs. Warrant Management Services, 003A2A,
• does not contain any unfunded ACTION: Proposed rule. 425 I Street NW, Washington DC 20001,
mandate or significantly or uniquely (202) 697–3565. (This is not a toll-free
affect small governments, as described SUMMARY: The Department of Veterans telephone number.)
in the Unfunded Mandates Reform Act Affairs (VA) is proposing to amend and SUPPLEMENTARY INFORMATION:
of 1995 (Public Law 104–4); update its VA Acquisition Regulation
(VAAR) in phased increments to revise Background
• does not have Federalism
implications as specified in Executive or remove any policy superseded by This rulemaking is issued under the
Order 13132 (64 FR 43255, August 10, changes in the Federal Acquisition authority of the Office of Federal
1999); Regulation (FAR), to remove any Procurement Policy (OFPP) Act which
• is not an economically significant procedural guidance internal to VA into provides the authority for an agency
regulatory action based on health or the VA Acquisition Manual (VAAM), head to issue agency acquisition
safety risks subject to Executive Order and to incorporate any new agency regulations that implement or
13045 (62 FR 19885, April 23, 1997); specific regulations or policies. These supplement the FAR.
changes seek to streamline and align the VA is proposing to revise the VAAR
• is not a significant regulatory action to add new policy or regulatory
subject to Executive Order 13211 (66 FR VAAR with the FAR and remove
outdated and duplicative requirements requirements and to remove any
28355, May 22, 2001); redundant guidance and guidance that
and reduce burden on contractors. The
In addition, this rulemaking is not is applicable only to VA’s internal
VAAM incorporates portions of the
subject to requirements of section 12(d) operating processes or procedures.
removed VAAR as well as other internal
of the National Technology Transfer and Codified acquisition regulations may be
agency acquisition policy. VA will
Advancement Act of 1995 (15 U.S.C. amended and revised only through
rewrite certain parts of the VAAR and
272 note) because application of those rulemaking. All amendments, revisions,
VAAM, and as VAAR parts are
requirements would be inconsistent and removals have been reviewed and
rewritten, we’ll publish them in the
with the CAA. It also does not provide concurred with by VA’s Integrated
Federal Register. VA will combine
EPA with the discretionary authority to Product Team of agency stakeholders.
related topics, as appropriate. In
address, as appropriate, The VAAR uses the regulatory
particular, this rulemaking revises
disproportionate human health or structure and arrangement of the FAR
VAAR Parts 811—Describing Agency
environmental effects, using practicable and headings and subject areas are
Needs and Part 832—Contract
and legally permissible methods, under broken up consistent with the FAR
Financing, as well as affected parts
Executive Order 12898 (59 FR 7629, content. The VAAR is divided into
801—Department of Veterans Affairs
February 16, 1994). And it does not subchapters, parts (each of which covers
Acquisition Regulation System, 852—
have Tribal implications as specified by a separate aspect of acquisition),
Solicitation Provisions and Contract
Executive Order 13175 (65 FR 67249, subparts, sections, and subsections.
Clauses, and 870—Special Procurement
November 9, 2000), because the EPA is The Office of Federal Procurement
Controls.
not proposing to approve the submitted Policy Act, as codified in 41 U.S.C.
rule to apply in Indian country located DATES: Comments must be received on 1707, provides the authority for the
in the State, and because the submitted or before May 25, 2018 to be considered Federal Acquisition Regulation and for
rule will not impose substantial direct in the formulation of the final rule. the issuance of agency acquisition
costs on Tribal governments or preempt ADDRESSES: Written comments may be regulations consistent with the FAR.
Tribal law. submitted through When Federal agencies acquire
www.Regulations.gov; by mail or hand- supplies and services using
sradovich on DSK3GMQ082PROD with PROPOSALS
List of Subjects in 40 CFR Parts 61 and delivery to Director, Regulation Policy appropriated funds, the purchase is
63 and Management (00REG), Department governed by the FAR, set forth at Title
Environmental protection, of Veterans Affairs, 810 Vermont 48 Code of Federal Regulations (CFR),
Administrative practice and procedure, Avenue NW, Room 1063B, Washington, chapter 1, parts 1 through 53, and the
Air pollution control, Hazardous DC 20420; or by fax to (202) 273–9026. agency regulations that implement and
substances, Incorporation by reference, Comments should indicate that they are supplement the FAR. The VAAR is set
Intergovernmental relations, Reporting submitted in response to ‘‘RIN 2900– forth at Title 48 CFR, chapter 8, parts
and record keeping requirements. AP81—Revise and Streamline VA 801 to 873.
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![Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules 12927
to revise the title from ‘‘Service Data collection of information at 48 CFR issuing any rule that may result in the
Manuals,’’ to read, ‘‘Equipment 852.211–72, Technical industry expenditure by State, local, and tribal
Operation and Maintenance Manuals.’’ standards, and 48 CFR 832.202–4, Governments, in the aggregate, or by the
We propose to reflect the revised title as Security for Government financing, private sector, of $100 million or more
set forth in the preamble and the which remain unchanged. Under the (adjusted annually for inflation) in any
amendatory language of this proposed provisions of the Paperwork Reduction one year. This proposed rule would
rule for this clause to read: 852.211–70, Act of 1995 (44 U.S.C. 3501–3521), no have no such effect on State, local, and
Equipment Operation and Maintenance new or proposed revised collection of tribal Governments or on the private
Manuals, under the associated OMB information is associated with these sector.
control number 2900–0587. We propose provisions as a part of this proposed
List of Subjects
to remove the reference in the existing rule. The information collection
OMB control number to the old title. requirements for 48 CFR 852.211–72 48 CFR Part 801
There is also a reduction in the and 48 CFR 832.202–4 are currently Administrative practice and
information collection burden that is approved by the OMB and have been procedure, Government procurement,
associated with this proposed request. assigned OMB control numbers 2900– Reporting and recordkeeping
The previously approved estimated 0586 and 2900–0688, respectively. The requirements.
annual hourly burden is 621 hours. As burden of these information collections
a result of revising the clause and remains unchanged. In accordance with 48 CFR Part 811and 832
removing the requirement to develop the Paperwork Reduction Act of 1995 Government procurement.
Government-specified service manuals, (44 U.S.C. 3501–3521), the OMB has
the VA has eliminated an unnecessary approved the reporting or recordkeeping 48 CFR Part 852
burden on the public by making use of provisions that are included in the Government procurement, Reporting
commercial operation and maintenance clause and the text under section and recordkeeping requirements.
manuals just like the general public and 832.202–4 cited above and has given the
48 CFR Part 870
established commercial practices, VA the following approval numbers:
thereby reducing by half the estimated OMB 2900–0586 and OMB 2900–0688, Asbestos, Frozen foods, Government
annual hourly burden which is now respectively. procurement, Telecommunications.
estimated at 311 hours, a reduction of Signing Authority
Regulatory Flexibility Act
310 annual hours. As required by the
Paperwork Reduction Act of 1995 (at 44 This proposed rule would not have a The Secretary of Veterans Affairs, or
U.S.C. 3507(d)), VA has submitted this significant economic impact on a designee, approved this document and
information collection amendment to substantial number of small entities as authorized the undersigned to sign and
OMB for its review. Notice of OMB they are defined in the Regulatory submit the document to the Office of the
approval for this information collection Flexibility Act, 5 U.S.C. 601–612. The Federal Register for publication
will be published in a future Federal overall impact of the proposed rule electronically as an official document of
Register document. would be of benefit to small businesses the Department of Veterans Affairs. Gina
This proposed rule would remove two owned by Veterans or service-disabled S. Farrisee, Deputy Chief of Staff,
of the six existing information collection Veterans as the VAAR is being updated Department of Veterans Affairs,
requirements associated with this action to remove extraneous procedural approved this document on August 7,
at 48 CFR 852.211–71, Special Notice, information that applies only to VA’s 2017, for publication.
and 48 CFR 852.211–73, Brand Name or internal operating procedures. VA is Dated: February 22, 2018.
Equal. Under the provisions of the merely adding existing and current Consuela Benjamin,
Paperwork Reduction Act (44 U.S.C. regulatory requirements to the VAAR Office of Regulation Policy & Management,
3501–3521), it discontinues the and removing any guidance that is Office of the Secretary, Department of
associated corresponding approved applicable only to VA’s internal Veterans Affairs.
OMB control numbers, 2900–0588 and operation processes or procedures. VA For the reasons set out in the
2900–0585, respectively. As a result of estimates no cost impact to individual preamble, VA proposes to amend 48
this proposed rule, there is a removal in business would result from these rule CFR, chapter 8, parts 801, 811, 832, 852,
the information collection burden that is updates. This rulemaking does not and 870 as follows:
associated with the removal of these two change VA’s policy regarding small
information collection requirements. businesses, does not have an economic PART 801—DEPARTMENT OF
For 48 CFR 852.211–71, Special Notice, impact to individual businesses, and VETERANS AFFAIRS ACQUISITION
and its corresponding OMB control there are no increased or decreased REGULATION SYSTEM
number 2900–0588, this results in a costs to small business entities. On this
removal of 875 estimated annual burden ■ 1. The authority citation for part 801
basis, the proposed rule would not have
hours. For 48 CFR 852.211–73, Brand is revised to read as follows:
an economic impact on a substantial
Name or Equal, and its corresponding number of small entities as they are Authority: 40 U.S.C. 121(c); 41 U.S.C.
OMB control number 2900–0585, this defined in the Regulatory Flexibility 1121; 41 U.S.C. 1303; 41 U.S.C. 1702; and 48
results in a removal of 1,125 estimated CFR 1.301–1.304.
Act, 5 U.S.C. 601–612. Therefore, under
annual burden hours. As required by the 5 U.S.C. 605(b), this regulatory action is Subpart 801.1—Purpose, Authority,
Paperwork Reduction Act of 1995 (at 44
sradovich on DSK3GMQ082PROD with PROPOSALS
exempt from the initial and final Issuance 801.106 [Amended]
U.S.C. 3507(d)), VA has submitted this regulatory flexibility analysis
information collection amendment to requirements of sections 603 and 604. ■ 2. Amend the section 801.106 table
OMB for its review. Notice of OMB columns titled ‘‘48 CFR part or section
approval for this information collection Unfunded Mandates where identified and described’’ and
will be published in a future Federal The Unfunded Mandates Reform Act ‘‘Current OMB control number’’ to—
Register document. of 1995 requires, at 2 U.S.C. 1532, that ■ a. Remove the reference to section
This proposed rule also contains two agencies prepare an assessment of 832.006–4 and OMB Control Number
other provisions constituting a anticipated costs and benefits before 2900–0668.
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![12928 Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules
■ b. Remove the reference to section Subpart 811.5— Removed and carry out the responsibilities of the
852.211–71 and OMB Control Number reserved] Secretary or designee in FAR 32.006–
2900–0588. 4(b). To determine whether substantial
■ 9. Subpart 811.5 is removed and evidence exists that the request for
■ c. Remove the reference to section
reserved. payment under a contract is based on
852.211–73 and OMB Control Number
2900–0585. Subpart 811.6—[Removed and fraud.
■ d. Remove ‘‘852.236–82 through’’;. reserved] (e) The RCO shall carry out the
■ e. Add the reference to sections responsibilities of the agency head in
■ 10. Subpart 811.6 is removed and
852.232–70 and 852.232–71 and OMB FAR 32.006–4(e) to notify the contractor
reserved.
control number 2900–0422 on the same of the reasons for the recommended
line. PART 832—CONTRACT FINANCING action and of its right to submit
* * * * * information within a reasonable period
■ 11. The authority citation for part 832 of time in response to the proposed
SUBCHAPTER B—[Amended] is revised to read as follows: action under FAR 32.006.
■ 3. The title of subchapter B is revised Authority: 40 U.S.C. 121(c); 41 U.S.C. (1) The notice of proposed action will
to read as follows: 1303; 41 U.S.C. 1702; and 48 CFR 1.301– be sent to the last known address of the
1.304.
SUBCHAPTER B—ACQUISITION PLANNING contractor, the contractor’s counsel, or
■ 12. Section 832.001 is added to read agent for service of process, by certified
PART 811—DESCRIBING AGENCY as follows: mail, return receipt requested, or any
NEEDS other method that provides signed
§ 832.001 Definitions.
evidence of receipt. In the case of a
■ 4. The authority citation for part 811 As used in this subpart:
business, the notice of proposed action
is revised to read as follows: (a) Designated agency office means
may be sent to any partner, principal,
Authority: 40 U.S.C. 121(c); 41 U.S.C. the office designated by the purchase
order, agreement, or contract to first officer, director, owner or co-owner, or
1303; 41 U.S.C. 1702; and 48 CFR 1.301– joint venture. The contractor will be
1.304. receive and review invoices. This office
can be contractually designated as the afforded an opportunity to appear before
§ 811.001 [Removed] receiving entity. This office may be the RCO to present information or
different from the office issuing the argument in person or through a
■ 5. Section 811.001 is removed.
payment. representative and may supplement the
■ 6. Revise subpart 811.1 to read as oral presentation with written
follows: (b) Electronic form means an
automated system transmitting information and argument.
Subpart 811.1—Selecting and information electronically according to (2) The contractor may supplement
Developing Requirements Documents the accepted electronic data the oral presentation with written
transmission methods identified in information and argument. The
§ 811.107–70 Contract clause. 832.7002–1. Facsimile, email, and proceedings will be conducted in an
The Contracting Officer shall insert scanned documents are not acceptable informal manner and without the
the clause at 852.211–70, Equipment electronic forms for submission of requirement for a transcript. If the RCO
Operation and Maintenance Manuals, in payment requests. does not receive a reply from the
solicitations and contracts for technical (c) Payment request means any contractor within 30 calendar days, the
medical, and other technical and request for contract financing payment RCO will base his or her
mechanical equipment and devices or invoice payment submitted by a recommendations on the information
where the requiring activity determines contractor under a contract. available. Any recommendation of the
manuals are a necessary requirement for ■ 13. Revise section 832.006–1 to read
RCO under FAR 31.006–4(a) and
operation and maintenance of the as follows: paragraph (b) of this section, must
equipment. § 832.006–1 General. address the results of this notification
■ 7. Revise subpart 811.2 to read as (b) The Senior Procurement Executive and the information, if any, provided by
follows: (SPE) is authorized to make the contractor. After reviewing all the
determinations that there is substantial information, the RCO shall make a
Subpart 811.2—Using and Maintaining recommendation to the SPE whether or
evidence that contractors’ requests for
Requirements Documents not substantial evidence of fraud exists.
advance, partial, or progress payments
§ 811.204–70 Contract clause. are based on fraud and may direct that (g) In addition to following the
further payments to the contractors be procedures in FAR 32.006–4, the SPE
The Contracting Officer shall insert
reduced or suspended, as provided in shall provide a copy of each final
the clause at 852.211–72, Technical
FAR 32.006. determination and the supporting
industry Standards, in solicitations and
contracts requiring conformance to documentation to the contractor, the
§ 832.006–2 [Removed].
technical industry standards, federal RCO, the Contracting Officer, and the
specifications, standards and § 832.006–3 [Removed]. OIG. The Contracting Officer will place
a copy of the determination and the
sradovich on DSK3GMQ082PROD with PROPOSALS
commercial item descriptions unless ■ 14. Remove sections 832.006–2 and
comparable coverage is included in the 832.006–3. supporting documentation in the
item specification. ■ 15. Section 832.006–4 is revised to contract file.
read as follows:
Subpart 811.4—[Removed and Subpart 832.1—Non-Commercial Item
reserved]. § 832.006–4 Procedures. Purchase Financing
(b) The Remedy Coordination Official
■ 8. Subpart 811.4 is removed and (RCO) for VA is the Deputy Senior ■ 16. Section 832.111 is revised to read
reserved. Procurement Executive (DSPE) and shall as follows:
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![Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules 12929
§ 832.111–70 VA contract clauses for non- sheets and income statements for the U.S.C. 3324(a). The term ‘‘other
commercial purchases. two preceding fiscal years. The publications’’ includes any publication
(a)(1) Insert the clause at 852.232–70, statements should be prepared in printed, microfilmed, photocopied or
Payments under fixed-price accordance with generally accepted magnetically or otherwise recorded for
construction contracts (without NAS– accounting principles and must be auditory or visual use.
CPM) in solicitations and contracts that audited and certified by an independent (2) As permitted by 31 U.S.C. 1535,
contain the FAR clause at 52.232–5, public accountant or an appropriate VA allows advance payment for services
Payments Under Fixed-Price officer of the firm; and supplies obtained from another
Construction Contracts, and if the (ii) A cash flow forecast for the Government agency.
solicitation or contract does not require remainder of the contract term showing (3) As permitted by 5 U.S.C. 4109, VA
use of the ‘‘Network Analysis System— the planned origin and use of cash allows advance payment for all or any
Critical Path Method (NAS–CPM).’’ within the firm or branch performing part of the necessary expenses for
(2) If the solicitation or contract the contract; training Government employees,
includes guarantee period services, the (iii) Information on financing including obtaining professional
Contracting Officer shall use the clause arrangements disclosing the availability credentials under 5 U.S.C. 5757, in
with its Alternate I. of cash to finance contract performance, Government or non-Government
(b)(1) Insert the clause at 852.232–71, the contractor’s exposure to financial facilities, including the purchase or
Payments under fixed-price risk, and credit arrangements; rental of books, materials, and supplies
construction contracts (including NAS– (iv) A statement of the status of all or services directly related to the
CPM), in solicitations and contracts that State, local, and Federal tax accounts, training of a Government employee.
contain the FAR clause at 52.232–5, including any special mandatory
* * * * *
Payments Under Fixed-Price contributions;
Construction Contracts, and if the (v) A description and explanation of Subpart 832.5—5 [Removed and
solicitation or contract requires use of the financial effects of any leases, reserved].
the ‘‘Network Analysis System—Critical deferred purchase arrangements, patent
Path Method (NAS–CPM).’’ or royalty arrangements, insurance, ■ 22. Subpart 832.5 is removed and
(2) If the solicitation or contract planned capital expenditures, pending reserved.
includes guarantee period services, the claims, contingent liabilities, and other
Contracting Officer shall use the clause financial aspects of the business; and Subpart 832.8 [Removed and
with its Alternate I. (vi) Any other financial information reserved].
deemed necessary.
Subpart 832.2—Commercial Item ■ 23. Subpart 832.8 is removed and
Purchase Financing Subpart 832.4—Advance Payments for reserved.
Non-Commercial Items
§ 832.201 [Removed]. Subpart 832.9—Prompt Payment
■ 17. Section 832.201 is removed. ■ 20. Section 832.402 is revised to read
§ 832.904 [Redesignated as 832.904–70].
■ 18. Section 832.202–1 is revised to as follows:
read as follows: ■ 24. Redesignate section 832.904 as
§ 832.402 General. 832.904–70 and revise newly
§ 832.202–1 Policy. (c)(1)(iii) The authority to make the redesignated section 832.904–70 to read
(d) HCAs shall report, no later than determination required by FAR as follows:
December 31st of each calendar year, to 32.402(c)(1)(iii) and to approve contract
terms is delegated to the head of the § 832.904–70 Determining payment due
the Senior Procurement Executive (SPE) dates for small businesses.
and the DSPE, on the number of contracting activity (HCA). The request
contracts for commercial items with for approval shall include the Pursuant to Office of Management and
unusual contract financing or with information required by FAR 32.409–1 Budget Memorandum M–11–32, dated
commercial interim or advance and shall address the standards for September 14, 2011, Contracting
payments approved for the previous advance payment in FAR 32.402(c)(2). Officers shall, to the full extent
fiscal year. The report shall include the HCAs shall report, no later than permitted by law, make payments to
contract number and amount, the December 31st of each calendar year, to small business contractors as soon as
amount of the unusual contract the Senior Procurement Executive (SPE) practicable, with the goal of making
financing or with commercial interim or and the DSPE, on number of contracts payments within 15 days of receipt of a
advance payments approved, and the for non-commercial items with advance proper invoice and confirmation that
kind and amount of security obtained payments approved in the previous the goods and services have been
for the advance. fiscal year. The report shall include the received and accepted by the Federal
■ 19. Section 832.202–4 is revised to contract number and amount, the Government.
read as follows: amount of the advance payment, and § 832.11 [Removed and reserved].
the kind and amount of security
§ 832.202–4 Security for Government obtained for the advance. ■ 25. Subpart 832.11 is removed and
financing. ■ 21. Amend section 832.404 by reserved.
(a)(2) An offeror’s financial condition revising paragraph (b) to read as follows: ■ 26. Revise subpart 832.70 to read as
may be considered adequate security to follows:
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protect the Government’s interest when § 832.404 Exclusions.
the Government provides contract * * * * * Subpart 832.70—Electronic Invoicing
financing. In assessing the offeror’s (b)(1) As permitted by 31 U.S.C. Requirements
financial condition, the Contracting 3324(d)(2), VA allows advance payment Sec
Officer may obtain, to the extent for subscriptions or other charges for 832.7000 General
required, the following information— newspapers, magazines, periodicals, 832.7001 Electronic payment requests
(i) A current year interim balance and other publications for official use, 832.7001–1 Data transmission
sheet and income statement and balance notwithstanding the provisions of 31 832.7001–2 Contract clause
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![12930 Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules
§ 832.7000 General. PART 852—SOLICITATION been tested in accordance with the standards
PROVISIONS AND CONTRACT and meet the contract requirement. Proof
This subpart prescribes policy may also be furnished by the organization
requirements for submitting and CLAUSES
listed above certifying that the item(s)
processing payment requests in ■ 27. The authority citation for part 852 furnished have been tested in accordance
electronic form. is revised to read as follows: with and conform to the specified standards.
(c) Offerors may obtain the standards cited
§ 832.7001 Electronic payment requests. Authority: 38 U.S.C. 8127–8128, and 8151– in this provision by submitting a request,
(a) The contractor shall submit 8153; 40 U.S.C. 121(c); 41 U.S.C. 1303; 41 including the solicitation number, title and
U.S.C. 1702; and 48 CFR 1.301–1.304. number of the publication to:
payment requests in electronic form
unless directed by the Contracting (Organization)ll (Mail or email address) l
Subpart 852.2—Text of Provisions and l
Officer to submit payment requests by Clauses (d) The offeror shall contact the
mail. Purchases paid with a Contracting Officer if response is not
Government-wide commercial purchase ■ 28. Section 852.211–70 is revised to received within two weeks of the request.
card are considered to be an electronic read as follows:
transaction for purposes of this rule, and (End of clause)
§ 852.211–70 Equipment Operation and
therefore no additional electronic Maintenance Manuals. § 852.211–73 [Removed and reserved].
invoice submission is required.
As prescribed in 811.107–70, insert
(b) The Contracting Officer may direct the following clause: § 852.211–74 [Removed and reserved].
the contractor to submit payment
EQUIPMENT OPERATION AND § 852.211–75 [Removed and reserved].
requests by mail, through the United
States Postal Service, to the designated MAINTENANCE MANUALS (DATE) ■ 31. Remove and reserve sections
agency office for— The contractor shall follow standard 852.211–73 through 852.211–75.
commercial practices to furnish manual(s), ■ 32. Add section 852.232–70 to read as
(1) Awards made to foreign vendors
handbook(s) or brochure(s) containing follows:
for work performed outside the United operation, installation, and maintenance
States; instructions, including pictures or § 852.232–70 Payments under fixed-price
(2) Classified contracts or purchases illustrations, schematics, and complete construction contracts (without NAS–CPM).
when electronic submission and repair/test guides, as necessary, for technical As prescribed in 832.111–70, insert
processing of payment requests could medical equipment and devices, and/or other the following clause in contracts that do
compromise the safeguarding of technical and mechanical equipment not contain a section entitled ‘‘Network
classified or privacy information; provided per CLIN(s) # (Contracting Officer
insert CLIN information). The manuals,
Analysis System—Critical Path Method
(3) Contracts awarded by Contracting handbooks or brochures shall be provided in (without NAS–CPM)’’
Officers in the conduct of emergency hard copy, soft copy or with electronic access Payments Under Fixed-Price
operations, such as responses to instructions, consistent with standard Construction Contracts (Without NAS–
national emergencies; industry practices for the equipment or
device. Where applicable, the manuals,
CPM) (Date)
(4) Solicitations or contracts in which
the designated agency office is a VA handbooks or brochures will include The clause FAR 52.232–5, Payments under
entity other than the VA Financial electrical data and connection diagrams for Fixed-Price Construction Contracts, is
all utilities. The documentation shall also implemented as follows:
Services Center in Austin, Texas; or contain a complete list of all replaceable (a) Retainage.
(5) Solicitations or contracts in which parts showing part number, name, and (1) The Contracting officer may retain
the VA designated agency office does quantity required. funds—
not have electronic invoicing capability (i) Where performance under the contract
as described above. (End of clause) has been determined to be deficient or the
§ 852.211–71 [Removed and reserved]. Contractor has performed in an
§ 832.7001–1 Data transmission. unsatisfactory manner in the past; or
■ 29. Section 852.211–71 is removed (ii) As the contract nears completion, to
The contractor shall submit electronic and reserved.
payment requests through— ensure that deficiencies will be corrected and
■ 30. Section 852.211–72 is revised to that completion is timely.
(a) VA’s Electronic Invoice read as follows: (2) Examples of deficient performance
Presentment and Payment System at the justifying a retention of funds include, but
current website address provided in the § 852.211–72 Technical Industry are not restricted to, the following—
contract; or Standards. (i) Unsatisfactory progress as determined
(b) A system that conforms to the X12 As prescribed in 811.204–70, insert by the Contracting Officer;
electronic data interchange (EDI) the following clause: (ii) Failure to meet schedule in Schedule
of Work Progress;
formats established by the Accredited TECHNICAL INDUSTRY STANDARDS (iii) Failure to present submittals in a
Standards Center (ASC) chartered by the (DATE) timely manner; or
American National Standards Institute (a) The contractor shall conform to the (iv) Failure to comply in good faith with
(ANSI). standards established by: (Contracting approved subcontracting plans, certifications,
Officer: Insert name of organization or contract requirements.
§ 832.7001–2 Contract clause. establishing the requirement, reference title, (3) Any level of retention shall not exceed
The Contracting Officer shall insert cite and date, e.g., United States Department 10 percent either where there is determined
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the clause at 852.232–72, Electronic of Agriculture (USDA), Institutional Meat to be unsatisfactory performance, or when
submission of payment requests, in Purchase Specifications (IMPS), Series 100, the retainage is to ensure satisfactory
solicitations and contracts exceeding the Beef products, Jan 2010) as to (Contracting completion. Retained amounts shall be paid
Officer: Insert item and CLIN, e.g. CLIN 0005 promptly upon completion of all contract
micro-purchase threshold, except those Ground Beef). requirements, but nothing contained in this
for which the Contracting Officer has (b) The contractor shall submit proof of subparagraph shall be construed as limiting
directed otherwise under 832.7001, and conformance to the standard. This proof may the Contracting Officer’s right to withhold
those paid with a Governmentwide be a label or seal affixed to the equipment or funds under other provisions of the contract
commercial purchase card. supplies, warranting that the item(s) have or in accordance with the general law and
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![Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules 12933
following paragraphs as additions to Government-wide commercial purchase card DEPARTMENT OF TRANSPORTATION
paragraph (b) of the basic clause: are considered to be an electronic transaction
(6)(i) The Contractor shall show on the for purposes of this rule, and therefore no Federal Motor Carrier Safety
critical path method (CPM) the total cost of additional electronic invoice submission is Administration
the guarantee period services in accordance required.
with the guarantee period service section(s) (c) Data transmission. A contractor must
of the specifications. This cost shall be priced
49 CFR Chapter III, Subchapter B
ensure that the data transmission method and
out when submitting the CPM cost loaded [Docket No. FMCSA–2018–0037]
network. The cost submitted shall be subject format are through one of the following:
to the approval of the Contracting Officer. (1) VA’s Electronic Invoice Presentment Request for Comments Concerning
The activity on the CPM shall have money and Payment System at the current website Federal Motor Carrier Safety
only and not activity time. address provided in the contract. Regulations (FMCSRs) Which May Be
(ii) The Contractor shall submit with the (2) Any system that conforms to the X12 a Barrier to the Safe Testing and
CPM a guarantee period performance electronic data interchange (EDI) formats Deployment of Automated Driving
program which shall include an itemized established by the Accredited Standards
accounting of the number of work-hours Systems-Equipped Commercial Motor
Center (ASC) and chartered by the American Vehicles on Public Roads
required to perform the guarantee period National Standards Institute (ANSI).
service on each piece of equipment. The (d) Invoice requirements. Invoices shall AGENCY: Federal Motor Carrier Safety
Contractor shall also submit the established
comply with FAR 32.905. Administration (FMCSA), DOT.
salary costs, including employee fringe
benefits, and what the contractor reasonably (e) Exceptions. If, based on one of the ACTION: Request for comments.
expects to pay over the guarantee period, all circumstances below, the Contracting Officer
of which will be subject to the Contracting directs that payment requests be made by SUMMARY: FMCSA requests public
Officer’s approval. mail, the contractor shall submit payment comments on existing Federal Motor
(iii) The cost of the guarantee period requests by mail through the United States Carrier Safety Regulations (FMCSRs)
service shall be prorated on an annual basis Postal Service to the designated agency that may need to be updated, modified,
and paid in equal monthly payments by VA office. Submission of payment requests by or eliminated to facilitate the safe
during the period of guarantee. In the event mail may be required for— introduction of automated driving
the installer does not perform satisfactorily (1) Awards made to foreign vendors for systems (ADS) equipped commercial
during this period, all payments may be work performed outside the United States; motor vehicles (CMVs) onto our
withheld and the Contracting Officer shall Nation’s roadways. To assist in this
(2) Classified contracts or purchases when
inform the contractor of the unsatisfactory undertaking, FMCSA commissioned the
performance, allowing the Contractor 10 days electronic submission and processing of
to correct and comply with the contract. The payment requests could compromise the U.S. Department of Transportation’s
guarantee period service is subject to those safeguarding of classified or privacy John A. Volpe National Transportation
provisions as set forth in the Payments and information; Systems Center (Volpe) to conduct a
Default clauses. (3) Contracts awarded by Contracting preliminary review of the FMCSRs to
Officers in the conduct of emergency identify regulations that may relate to
■ 34. Section 852.232–72 is revised to
operations, such as responses to national the development and safe introduction
read as follows:
emergencies; of ADS. The Agency requests comments
§ 852.232–72 Electronic submission of (4) Solicitations or contracts in which the on this report, including whether any of
payment requests. designated agency office is a VA entity other FMCSA’s current safety regulations may
As prescribed in 832.7001–2, insert than the VA Financial Services Center in hinder the testing and safe integration of
the following clause: Austin, Texas; or ADS-equipped CMVs. Further, FMCSA
(5) Solicitations or contracts in which the requests comment on certain specific
Electronic Submission of Payment Requests VA designated agency office does not have regulatory requirements that are likely
(Date) electronic invoicing capability as described to be affected by an increased
(a) Definitions. As used in this clause— above. integration of ADS-equipped CMVs.
(1) Contract financing payment has the However, the Agency is not seeking
meaning given in FAR 32.001. (End of clause)
(2) Designated agency office means the
comments on its financial responsibility
office designated by the purchase order, § 852.236–82 [Removed and reserved].
requirements because they are not
agreement, or contract to first receive and directly related to CMV technologies
review invoices. This office can be § 852.236–83 [Removed and reserved]. and because future insurance
contractually designated as the receiving requirements will depend in part on the
entity. This office may be different from the ■ 35. Remove and reserve sections evolution of State tort law with respect
office issuing the payment. 852.236–82 and 852.236–83. to liability for the operation of ADS-
(3) Electronic form means an automated equipped vehicles. In addition, to
system transmitting information PART 870—SPECIAL PROCUREMENT
support FMCSA’s effort to understand
electronically according to the accepted CONTROLS
electronic data transmission methods and
future impacts on the FMCSR’s, FMCSA
formats identified in paragraph (c) of this ■ 36. The authority citation for part 870 requests information, including from
clause. Facsimile, email, and scanned is revised to read as follows: companies engaged in the design,
documents are not acceptable electronic development, testing, and integration of
forms for submission of payment requests. Authority: 40 U.S.C. 121(c); 41 U.S.C. ADS-equipped CMVs into the fleet.
(4) Invoice payment has the meaning given 1702; and 48 CFR 1.301–1.304. Specifically, the Agency requests
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in FAR 32.001. information about: The scenarios and
(5) Payment request means any request for § 870.112 [Removed]
environments where entities expect that
contract financing payment or invoice ADS will soon be tested and integrated
payment submitted by the contractor under § 870.113 [Removed]
this contract.
into CMVs operating on public roads or
■ 37. Remove sections 870. 112 and in interstate commerce; the operational
(b) Electronic payment requests. Except as 870.113.
provided in paragraph (e) of this clause, the design domains (ODD) in which these
contractor shall submit payment requests in [FR Doc. 2018–04002 Filed 3–23–18; 8:45 am] systems are being operated or would be
electronic form. Purchases paid with a BILLING CODE 8320–01–P tested and eventually deployed; and,
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Document Created: 2018-03-24 00:59:56
Document Modified: 2018-03-24 00:59:56
| 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 May 25, 2018 to be considered in the formulation of the final rule. | |
| Contact | Mr. Ricky Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington DC 20001, (202) 697-3565. (This is not a toll-free telephone number.) | |
| FR Citation | 83 FR 12922 | |
| RIN Number | 2900-AP81 | |
| CFR Citation | 48
CFR
801 48 CFR 811 48 CFR 832 48 CFR 852 48 CFR 870 | |
| CFR Associated | Administrative Practice and Procedure; Government Procurement; Reporting and Recordkeeping Requirements; Asbestos; Frozen Foods and Telecommunications |
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