83 FR 16206 - Revise and Streamline VA Acquisition Regulation To Adhere to Federal Acquisition Regulation Principles (VAAR Case 2014-V001)

DEPARTMENT OF VETERANS AFFAIRS

Federal Register Volume 83, Issue 73 (April 16, 2018)

Page Range		16206-16210
FR Document		2018-07833
The Department of Veterans Affairs (VA) in this final rule amends six clauses or provisions and removes one clause which duplicates current FAR coverage and is not needed, provides updated policy on variations, tolerances and exemptions regarding overtime in contracts providing nursing home care for veterans, removes an information collection burden on an outdated practice of using bid envelopes; clarifies language regarding the prohibition of contractors from making reference in their commercial advertising, and revises definitions relating to D&S Committee, Debarring Official and Suspending Official currently contained in the VAAR. This document adopts as a final rule, with three technical non-substantive changes, the proposed rule published in the Federal Register on May 17, 2017.
Federal Register, Volume 83 Issue 73 (Monday, April 16, 2018)
[Federal Register Volume 83, Number 73 (Monday, April 16, 2018)]
[Rules and Regulations]
[Pages 16206-16210]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-07833]


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DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 801, 802, 803, 812, 814, 822, and 852

RIN 2900-AP50


Revise and Streamline VA Acquisition Regulation To Adhere to 
Federal Acquisition Regulation Principles (VAAR Case 2014-V001)

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) in this final rule 
amends six clauses or provisions and removes one clause which 
duplicates current FAR coverage and is not needed, provides updated 
policy on variations, tolerances and exemptions regarding overtime in 
contracts providing nursing home care for veterans, removes an 
information collection burden on an outdated practice of using bid 
envelopes; clarifies language regarding the prohibition of contractors 
from making reference in their commercial advertising, and revises 
definitions relating to D&S Committee, Debarring Official and 
Suspending Official currently contained in the VAAR. This document 
adopts as a final rule, with three technical non-substantive changes, 
the proposed rule published in the Federal Register on May 17, 2017.

DATES: This rule is effective on May 16, 2018.

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) 632-5276. (This is not a 
toll-free telephone number.)

SUPPLEMENTARY INFORMATION: On May 17, 2017, VA published a proposed 
rule in the Federal Register (82 FR 22635), which announced VA`s intent 
to amend regulations for VAAR Case 2014-V001. In addition to the 
revisions outlined in the summary, this final rule also updates the 
policy governing improper business practices and personal conflicts of 
interests, and provides the agency's procedures on due process rights 
and who in VA determines whether or not a violation of the Gratuities 
clause has occurred. The rule adds clarifying information on sealed 
bidding including preparation of invitations for bids and other general 
rules for solicitation of bids. VA provided a 60-day comment period for 
the public to respond to the proposed rule. The comment period for the 
proposed rule ended on July 17, 2017 and VA received no comments. The 
proposed rule is being adopted as final, with three technical non-
substantive changes and minor stylistic and grammatical edits.

Technical Non-Substantive Changes to the Proposed Rule

    The final rule makes administrative changes to two of the 
authorities for the parts on the recommendation of counsel, 
specifically the removal of 38 U.S.C. 501, and the addition of 41 
U.S.C. 1702 which addresses overall direction of procurement policy, 
acquisition planning and management responsibilities of Chief 
Acquisition Officers and Senior Procurement Executives, including 
implementation of unique procurement policies, regulations, and 
standards of the agency. 38 U.S.C. 501 is a more general authority of 
the Secretary of the Department of Veterans Affairs to

[[Page 16207]]

prescribe all rules and regulations which are necessary or appropriate 
to carry out the laws administered by the Department. The Title 41 
authority is the more appropriate authority to cite when publishing the 
VA Acquisition Regulation.
    The final rule, in section 802.101, will remove definitions and 
titles relating to D&S Committee, Debarring official, and Suspending 
official and replaces them with two definitions/titles and the acronyms 
now in use in the agency: Suspending and Debarring Official (SDO) and 
Suspension and Debarment Committee (S&D Committee). These were properly 
updated via VAAR Class Deviation issued on June 2, 2017, after the 
proposed rule was published for public comment.
    This final rule has Federal Register administrative format changes 
in the amendatory text which makes no substantive text changes at the 
affected sections.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal Governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule will have no such effect on 
State, local, and tribal Governments or on the private sector.

Paperwork Reduction Act

    Although this action contains provisions constituting collections 
of information at 48 CFR 814.201-6(a) and 852.214-70, under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521), no new or proposed revised collections of information are 
associated with this final rule. The information collection 
requirements for 48 CFR 814.201-6(a) and 852.214-70 are currently 
approved by OMB, have been assigned OMB control number 2900-0593, and 
are being removed and discontinued. This results in a removal of 2 
estimated annual burden hours to respondents.

Regulatory Flexibility Act

    This final rule will not have a significant economic impact on a 
substantial number of small entities as they are defined in the 
Regulatory Flexibility Act, 5 U.S.C. 601-612. The rule text does not 
change VA's policy regarding small businesses. Therefore, the rule does 
not have a significant economic impact on substantial number of small 
entities. There are no increased and/or decreased costs to small 
entities. The overall impact of this final rule will be of benefit to 
small businesses owned by Veterans or service-disabled Veterans as the 
VAAR is being updated to remove extraneous procedural information that 
applies only to VA's internal operating procedures. VA estimates no 
cost impact to individual business resulting from these rule updates. 
On this basis, this final rule will not have a significant economic 
impact on a substantial number of small entities as they are defined in 
the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 
U.S.C. 605(b), this final rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

Executive Orders 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. This final rule is considered an E.O. 13771 deregulatory action. 
Details on the estimated cost savings of this final rule can be found 
in the rule's economic analysis.
    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.

List of Subjects

48 CFR Part 801

    Administrative practice and procedure, Government procurement, 
Reporting and recordkeeping requirements.

48 CFR Parts 802, 812 and 814

    Government procurement.

48 CFR Part 803

    Antitrust, Conflict of interest, Government procurement.

48 CFR Part 822

    Government procurement, Labor.

48 CFR Part 852

    Government procurement, Reporting and recordkeeping requirements.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on February 23, 2018, for publication.

    Dated: March 13, 2018.
Consuela Benjamin,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.
    For the reasons set out in the preamble, VA amends 48 CFR parts 
801, 802, 803, 812, 814, 822, and 852 as follows:

PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION 
SYSTEM

0
1. The authority citation for part 801 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 
1702; and 48 CFR 1.301-1.304.


801.106  [Amended]

0
2. In section 801.106, table columns titled ``48 CFR part or section 
where identified and described'' and ``Current

[[Page 16208]]

OMB Control Number,'' are amended to remove the references to section 
852.214-70 and the corresponding OMB Control Number 2900-0593.

PART 802--DEFINITIONS OF WORDS AND TERMS

0
3. The authority citation for part 802 is revised to read as follows:

    Authority:  40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 
1702; and 48 CFR 1.301-1.304.


0
4. Section 802.101 is amended to remove definitions of ``D&S 
Committee,'' ``Debarring Official,'' and ``Suspending official,'' and 
to add definitions of ``Suspending and Debarring Official (SDO)'' and 
``Suspension and Debarment Committee (S&D Committee)'' in alphabetical 
order to read as follows:


802.101  Definitions.

* * * * *
    Suspending and Debarring Official (SDO) means the Senior 
Procurement Executive (SPE) or Deputy Senior Procurement Executive 
(DSPE) if further delegated in writing by the SPE.
    Suspension and Debarment Committee (S&D Committee) means a 
committee authorized by the SDO to assist the SDO with suspension and 
debarment related matters.
* * * * *

PART 803--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

0
5. The authority citation for part 803 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 
U.S.C.1702; and 48 CFR 1.301-1.304.

Subpart 803.1 [Removed and reserved]

0
6. Subpart 803.1 is removed and reserved.

0
 7. Section 803.204 is revised to read as follows:
    In providing the notice and hearing required by FAR 3.204, the 
following applies--


803.204  Treatment of violations.

    (a) The SDO shall determine whether or not a violation of the 
Gratuities clause, 52.203-3 has occurred and what action will be taken 
under FAR 3.204(c).
    (c) When the SDO determines that a violation has occurred and that 
debarment is being considered, he or she shall follow procedures at 
809.406-3.

Subpart 803.3 [Removed and reserved]

0
8. Subpart 803.3 is removed and reserved.

Subpart 803.4 [Removed and reserved]

0
9. Subpart 803.4 is removed and reserved.


803.502  [Removed]

0
10. Section 803.502 is removed.

0
11. Section 803.570-1 is revised to read as follows:


803.570-1  Policy.

    VA policy prohibits contractors from making references in its 
commercial advertising to VA contracts in a manner that states or 
implies the Government approves or endorses the product or service or 
considers it superior to other products or services. The intent of this 
policy is to preclude the appearance of bias toward any product or 
service.

Subpart 803.6 [Removed and reserved]

0
12. Subpart 803.6 is removed and reserved.

Subpart 803.7 [Removed and reserved]

0
13. Subpart 803.7 is removed and reserved.

Subpart 803.8 [Removed and reserved]

0
14. Subpart 803.8 is removed and reserved.

0
15. Subpart 803.11 is added to read as follows:

Subpart 803.11--Preventing Personal Conflicts of Interest for 
Contractor Employees Performing Acquisition Functions


803.1103  Procedures.

    (a) By use of the contract clause at 52.203-16, Preventing Personal 
Conflicts of Interest, the contracting officer shall require each 
contractor whose employees perform acquisition functions closely 
associated with inherently Governmental functions to obtain from each 
covered employee a signed non-disclosure agreement to prohibit 
disclosure of non-public information accessed through performance of a 
Government contract. See FAR 3.1103(a)(2)(iii).

Subpart 803.70 [Removed and reserved]

0
16. Subpart 803.70 is removed and reserved.

PART 812--ACQUISITION OF COMMERCIAL ITEMS

0
17. The authority citation for part 812 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 
1702; and 48 CFR 1.301-1.304.


0
18. Section 812.301 is amended by revising paragraph (b)(13) to read as 
follows:


812.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (b) * * *
    (13) 852.214-74, Marking of Bid Samples.
* * * * *

PART 814--SEALED BIDDING

0
19. The authority citation for part 814 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 
1702; and 48 CFR 1.301-1.304.

Subpart 814.1 [Removed and reserved]

0
20. Subpart 814.1 is removed and reserved.

0
21. Section 814.201 is revised to read as follows:


814.201   Preparation of invitations for bids.

0
22. Section 814.201-2 is added to read as follows:


814.201-2   Part I--The Schedule.

    (b) Section B, Supplies or services and prices.
    (1) When the contracting officer determines that it will be to the 
Government's advantage to make an award on the basis of a summary bid, 
the IFB shall include the following statement in Part I--The Schedule, 
Section B:

    The award will be made on either the bid price for individual items 
or the summary bid price summary for all items, whichever results in 
the lowest price to the Government. Therefore, to assure proper 
evaluation of all bids, a bidder quoting a summary bid price must also 
quote a price on each individual item included in the summary bid 
price.

    (2) When a contracting officer determines that it will be to the 
Government's advantage to make an award by group or groups of items, 
the IFB shall include the following statement in Part I--The Schedule, 
Section B:

    Award shall be made on the basis of the bid price for each 
identified group

[[Page 16209]]

of items. The individual price of each line item in the group does not 
have to be the lowest bid received for that item. This may apply when 
the items in the group or groups are readily available from sources to 
be solicited; and one of the following applies:
    (i) Furniture or fixtures are required for a single project and 
uniformity of design is desirable.
    (ii) The articles required will be assembled and used as a unit.

0
23. Section 814.201-6 is revised to read as follows:


814.201-6  Solicitation provisions.

    (a) In an invitation for bid for supplies, equipment, or services 
(other than construction), the contracting officer shall define the 
extent to which VA will authorize and consider alternate bids.
    (1) The contracting officer shall include the provision at 852.214-
71, Restrictions on Alternate Item(s), in the invitation when VA will 
consider an alternate item only where acceptable bids on a desired item 
are not received or the bids do not satisfy the total requirement. (For 
construction projects, VA will consider for acceptance an alternate 
specified only as a part of the basic item.)
    (2) The contracting officer shall include the provision at 852.214-
72, Alternate Item(s), in the invitation, when VA will consider an 
alternate item on an equal basis with the item specified. (For 
construction projects, VA will consider for acceptance an alternate 
specified only as a part of the basic item.)
    (3) In addition to either of the provisions referenced in 
paragraphs (a)(1) or (2) of this section, the contracting officer shall 
include the provision at 852.214-73, Alternate Packaging and Packing, 
in the invitation when bids will be allowed based on different 
packaging, unit designation, etc.
    (b) The contracting officer shall include the provision at 852.214-
74, Marking of Bid Samples, in the invitation, along with the provision 
at FAR 52.214-20, Bid Samples, when the contracting officer determines 
that samples are necessary to the proper awarding of a contract.

0
24. Sections 814.202 and 814.202-4 are added to read as follows:


814.202  General rules for solicitation of bids.


814.202-4   Bid samples.

    (a) Policy. When bid samples are required, the contracting officer 
shall include a notice in the contract Schedule that requires bidders 
to submit samples produced by the manufacturer whose products will be 
supplied under the contract.
    (g) Handling bid samples.
    (1) Samples from successful bids shall be retained for the period 
of contract performance.
    (2) If the contracting officer anticipates a claim regarding the 
contract, the contracting officer shall require that the bid samples be 
retained until the claim is resolved. If there are no outstanding 
claims regarding the contract, the contracting officer may authorize 
disposal of the samples at the end of the contract term in accordance 
with the bidder's instructions.
    (3) The contracting officer shall require that samples from 
unsuccessful bids be retained until award. After award, these samples 
may be disposed of in accordance with the bidder's instructions.


814.203 and 814.203-1  [Removed]

0
25. Sections 814.203 and 814.203-1 are removed.


814.204  [Removed]

0
26. Section 814.204 is removed.


814.208   [Removed]

0
27. Section 814.208 is removed.


814.301  [Removed]

0
28. Section 814.301 is removed.


814.302  [Removed]

0
29. Section 814.302 is removed.

0
30. Section 814.304 is revised to read as follows:


814.304   Submission, modification, and withdrawal of bids.

    (f) A notification to late bidders shall specify the final date by 
which VA must receive evidence of timeliness. This date shall be within 
five calendar days of the date an electronic notice is sent to the 
bidder, or within ten calendar days of receipt by the bidder of a 
notice sent by other than electronic means.

Subpart 814.4 [Removed and reserved]

0
31. Subpart 814.4 is removed and reserved.

PART 822--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
32. The authority citation for part 822 is revised to read as follows:

    Authority:  40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 29 CFR 
5.15(d); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.


0
33. Section 822.304 is revised to read as follows:


822.304  Variations, tolerances, and exemptions.

    For contracts providing nursing home care for veterans, the 
Secretary of Labor has allowed a variation to the requirements of 
Contract Work Hours and Safety Standards (the statute) (40 U.S.C. 3701, 
et seq.) regarding the payment of overtime (see 29 CFR 5.15(d)(2)). The 
variation provides that overtime may be calculated on a basis other 
than a 40 hour workweek (as an alternate work period) when--
    (a) Due to operational necessity or convenience a work period of 14 
consecutive days may be accepted in lieu of the workweek of 7 
consecutive days for the purpose of computing overtime compensation, 
pursuant to an agreement or understanding arrived at between the 
contractor and the contractors' employees before performance of the 
work; and
    (b) If The contractor's employees receive compensation for 
employment in excess of 8 hours in any workday and in excess of 80 
hours in such 14-day period at a rate not less than 1\1/2\ times the 
regular rate at which the individual is employed, computed in 
accordance with the requirements of the Fair Labor Standards Act of 
1938, as amended.

0
34. Section 822.305 is revised to read as follows:


822.305   Contract clause.

    The contracting officer shall insert the clause at 852.222-70, 
Contract Work Hours and Safety Standards--Nursing Home Care for 
Veterans, in solicitations and contracts for nursing home care for 
veterans. The contractor shall flow down this clause and insert in all 
subcontracts, at any tier.

Subpart 822.4 [Removed and reserved].

0
35. Subpart 822.4 is removed and reserved.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
36. The authority citation for part 852 continues to read as follows:

    Authority: 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 
41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

Subpart 852.2--Texts of Provisions and Clauses

0
37. Section 852.203-70 is revised to read as follows:


852.203-70  Commercial advertising.

    As prescribed in 803.570-2, insert the following clause:

[[Page 16210]]

Commercial Advertising (May 2018)

    The Contractor shall not make reference in its commercial 
advertising to Department of Veterans Affairs contracts in a manner 
that states or implies the Department of Veterans Affairs approves 
or endorses the Contractor's products or services or considers the 
Contractor's products or services superior to other products or 
services.


(End of clause)


852.203-71  [Removed and reserved]

0
38. Section 852.203-71 is removed and reserved.


852.214-70  [Removed and reserved].

0
39. Section 852.214-70 is removed and reserved.

0
40. Section 852.214-71 is revised to read as follows:


852.214-71  Restrictions on alternate item(s).

    As prescribed in 814.201-6(a)(1), insert the following provision:

Restrictions on Alternate Item(s) (May 2018)

    Bids on [ ]* will be considered only if acceptable bids on [ ]** 
are not received or do not satisfy the total requirement.
    *Contracting Officer will insert an alternate item that is 
considered acceptable.
    **Contracting Officer will insert the required item and item 
number.


(End of provision)

0
41. Section 852.214-72 is revised to read as follows:


852.214-72  Alternate item(s).

    As prescribed in 814.201-6(a)(2), insert the following provision:

Alternate Item(s) (May 2018)

    Bids on [ ]* will be given equal consideration along with bids 
on [ ]** and any such bids received may be accepted if to the 
advantage of the Government. Tie bids will be decided in favor of [ 
].**
    *Contracting Officer will insert an alternate item that is 
considered acceptable.
    **Contracting Officer will insert the required item and item 
number.


(End of provision)

0
42. Section 852.214-73 is revised to read as follows:


852.214-73  Alternate packaging and packing.

    As prescribed in 814.201-6(a)(3), insert the following provision:

Alternate Packaging and Packing (May 2018)

    The bidders offer must clearly indicate the quantity, package 
size, unit, or other different feature upon which the quote is made. 
Evaluation of the alternate or multiple alternates will be made on a 
common denominator such as per ounce, per pound, etc., basis.


(End of provision)

0
43. Section 852.214-74 is revised to read as follows:


852.214-74  Marking of bid samples.

    As prescribed in 814.201-6(b), insert the following provision:

Marking of Bid Samples (May 2018)

    Any bid sample(s) furnished must be in the quantities specified 
in the solicitation. Cases or packages must be plainly marked `Bid 
Sample(s)'' with the complete lettering/numbering and description of 
the related bid item(s), the number of the Invitation for Bids, and 
the name of the bidder submitting the bid sample(s).


(End of provision)

0
44. Section 852.222-70 is revised to read as follows:


852.222-70  Contract work-hours and safety standards--nursing home care 
for veterans.

    As prescribed in 822.305, insert the following clause:

Contract Work Hours and Safety Standards--Nursing Home Care for 
Veterans (May 2018)

    (a) No Contractor and subcontractor under this contract shall 
prohibit the payment of overtime wages to their employees for work 
in excess of 40 hours in any workweek, which would otherwise be a 
violation of Contract Work Hours and Safety Standards (the statute) 
(40 U.S.C. 3701, et seq.), provided--
    (1) The Contractor or subcontractor is primarily engaged in the 
care of nursing home patients residing on the contractor's or 
subcontractor's premises;
    (2) There is an agreement or understanding between the 
Contractor or subcontractor and their employees, before performance 
of work, that a work period of 14 consecutive days is acceptable in 
lieu of a work period of 7 consecutive days for the purpose of 
overtime compensation;
    (3) Employees receive overtime compensation at a rate no less 
than 1\1/2\ times the employees' regular hourly rate of pay for work 
in excess of 80 hours in any 14 day period; and
    (4) Pay is otherwise computed in accordance with the 
requirements of the Fair Labor Standards Act of 1938, as amended.
    (b) Subcontracts. The Contractor shall insert the text of this 
clause, including this paragraph (b), in subcontracts at any tier. 
The Contractor shall be responsible for compliance by any 
subcontractor or lower-tier subcontractor with the provisions set 
forth in paragraphs (a) through (b) of this clause.


(End of clause)

[FR Doc. 2018-07833 Filed 4-13-18; 8:45 am]
BILLING CODE 8320-01-P
16206 Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Rules and Regulations

12(d) of the National Technology Parts per information collection burden on an
Commodity
Transfer and Advancement Act million outdated practice of using bid
(NTTAA) (15 U.S.C. 272 note). envelopes; clarifies language regarding
Barley, bran .............................. 1.0 the prohibition of contractors from
VII. Congressional Review Act Barley, flour .............................. 0.50 making reference in their commercial
Pursuant to the Congressional Review Barley, grain ............................. 0.30
advertising, and revises definitions
Act (5 U.S.C. 801 et seq.), EPA will * * * * * relating to D&S Committee, Debarring
submit a report containing this rule and Cattle, meat .............................. 0.02 Official and Suspending Official
other required information to the U.S. currently contained in the VAAR. This
Senate, the U.S. House of * * * * * document adopts as a final rule, with
Representatives, and the Comptroller Goat, meat ................................ 0.02 three technical non-substantive changes,
General of the United States prior to Grain, aspirated fractions ......... 4.0 the proposed rule published in the
publication of the rule in the Federal Grain, cereal, forage, fodder, Federal Register on May 17, 2017.
Register. This action is not a ‘‘major and straw, group 16 .............. 7.0
DATES: This rule is effective on May 16,
rule’’ as defined by 5 U.S.C. 804(2). 2018.
* * * * *
List of Subjects in 40 CFR Part 180 Horse, meat .............................. 0.02 FOR FURTHER INFORMATION CONTACT: Mr.
Ricky Clark, Senior Procurement
Environmental protection, * * * * * Analyst, Procurement Policy and
Administrative practice and procedure, Milk ........................................... 0.06 Warrant Management Services, 003A2A,
Agricultural commodities, Pesticides
425 I Street NW, Washington, DC 20001,
and pests, Reporting and recordkeeping * * * * *
(202) 632–5276. (This is not a toll-free
requirements. Pea and bean, dried shelled
(except soybean) subgroup telephone number.)
Dated: April 4, 2018. SUPPLEMENTARY INFORMATION: On May
6C .......................................... 0.09
Donna Davis, 17, 2017, VA published a proposed rule
Acting Director, Registration Division, Office * * * * * in the Federal Register (82 FR 22635),
of Pesticide Program. Rapeseed subgroup 20A .......... 0.90 which announced VA‘s intent to amend
Therefore, 40 CFR chapter I is regulations for VAAR Case 2014–V001.
* * * * * In addition to the revisions outlined in
amended as follows: Sheep, meat ............................. 0.02
the summary, this final rule also
PART 180—[AMENDED] * * * * * updates the policy governing improper
Vegetable, foliage of legume business practices and personal
■ 1. The authority citation for part 180 (except soybeans) subgroup conflicts of interests, and provides the
continues to read as follows: 7A .......................................... 8.0 agency’s procedures on due process
Authority: 21 U.S.C. 321(q), 346a and 371. rights and who in VA determines
* * * * * whether or not a violation of the
■ 2. In § 180.557; in the table to Wheat, bran .............................. 0.15
paragraph (a): Gratuities clause has occurred. The rule
Wheat, flour .............................. 0.08 adds clarifying information on sealed
■ a. Remove the entry for ‘‘Aspirated Wheat, germ ............................. 0.50
grain fractions’’; Wheat, grain ............................. 0.05
bidding including preparation of
■ b. Add alphabetically entries for invitations for bids and other general
‘‘Barley, bran’’; ‘‘Barley, flour’’; and * * * * * rules for solicitation of bids. VA
‘‘Barley, grain’’; [FR Doc. 2018–07888 Filed 4–13–18; 8:45 am] provided a 60-day comment period for
■ c. Revise the entry for ‘‘Cattle, meat’’; BILLING CODE 6560–50–P
the public to respond to the proposed
■ d. Remove the entries for ‘‘Corn, field, rule. The comment period for the
forage’’; ‘‘Corn, field, stover’’; and proposed rule ended on July 17, 2017
‘‘Corn, pop, stover’’; and VA received no comments. The
DEPARTMENT OF VETERANS
■ e. Add alphabetically entries for proposed rule is being adopted as final,
AFFAIRS
‘‘Grain, aspirated fractions’’; ‘‘Grain, with three technical non-substantive
cereal, forage, fodder, and straw, group 48 CFR Parts 801, 802, 803, 812, 814, changes and minor stylistic and
16’’; 822, and 852 grammatical edits.
■ f. Revise the entries for ‘‘Goat, meat’’; Technical Non-Substantive Changes to
RIN 2900–AP50
‘‘Horse, meat’’; ‘‘Milk’’; the Proposed Rule
■ g. Add alphabetically entries for ‘‘Pea Revise and Streamline VA Acquisition
and bean, dried shelled (except The final rule makes administrative
Regulation To Adhere to Federal changes to two of the authorities for the
soybean) subgroup 6C’’; ‘‘Rapeseed Acquisition Regulation Principles
subgroup 20A’’; parts on the recommendation of
(VAAR Case 2014–V001) counsel, specifically the removal of 38
■ h. Revise the entry for ‘‘Sheep, meat’’;
and AGENCY: Department of Veterans Affairs. U.S.C. 501, and the addition of 41
■ i. Add alphabetically entries for ACTION: Final rule. U.S.C. 1702 which addresses overall
‘‘Vegetable, foliage of legume (except direction of procurement policy,
soybeans) subgroup 7A’’; ‘‘Wheat, SUMMARY: The Department of Veterans acquisition planning and management
bran’’; ‘‘Wheat, flour’’; ‘‘Wheat, germ’’; Affairs (VA) in this final rule amends responsibilities of Chief Acquisition
six clauses or provisions and removes Officers and Senior Procurement
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and ‘‘Wheat, grain’’.
The additions and revisions read as one clause which duplicates current Executives, including implementation
follows: FAR coverage and is not needed, of unique procurement policies,
provides updated policy on variations, regulations, and standards of the
§ 180.557 Tetraconazole; tolerances for tolerances and exemptions regarding agency. 38 U.S.C. 501 is a more general
residues. overtime in contracts providing nursing authority of the Secretary of the
(a) * * * home care for veterans, removes an Department of Veterans Affairs to

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Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Rules and Regulations 16207

prescribe all rules and regulations and/or decreased costs to small entities. VA’s impact analysis can be found as
which are necessary or appropriate to The overall impact of this final rule will a supporting document at http://
carry out the laws administered by the be of benefit to small businesses owned www.regulations.gov, usually within 48
Department. The Title 41 authority is by Veterans or service-disabled Veterans hours after the rulemaking document is
the more appropriate authority to cite as the VAAR is being updated to remove published. Additionally, a copy of the
when publishing the VA Acquisition extraneous procedural information that rulemaking and its impact analysis are
Regulation. applies only to VA’s internal operating available on VA’s website at http://
The final rule, in section 802.101, will procedures. VA estimates no cost www.va.gov/orpm by following the link
remove definitions and titles relating to impact to individual business resulting for VA Regulations Published from FY
D&S Committee, Debarring official, and from these rule updates. On this basis, 2004 Through Fiscal Year to Date.
Suspending official and replaces them this final rule will not have a significant
with two definitions/titles and the List of Subjects
economic impact on a substantial
acronyms now in use in the agency: number of small entities as they are 48 CFR Part 801
Suspending and Debarring Official defined in the Regulatory Flexibility Administrative practice and
(SDO) and Suspension and Debarment Act, 5 U.S.C. 601–612. Therefore, under procedure, Government procurement,
Committee (S&D Committee). These 5 U.S.C. 605(b), this final rule is exempt Reporting and recordkeeping
were properly updated via VAAR Class from the initial and final regulatory requirements.
Deviation issued on June 2, 2017, after flexibility analysis requirements of
the proposed rule was published for sections 603 and 604. 48 CFR Parts 802, 812 and 814
public comment. Government procurement.
This final rule has Federal Register Executive Orders 12866, 13563 and
administrative format changes in the 13771 48 CFR Part 803
amendatory text which makes no Executive Orders (E.O.) 12866 and Antitrust, Conflict of interest,
substantive text changes at the affected 13563 direct agencies to assess all costs Government procurement.
sections. and benefits of available regulatory 48 CFR Part 822
Unfunded Mandates alternatives and, if regulation is
necessary, to select regulatory Government procurement, Labor.
The Unfunded Mandates Reform Act approaches that maximize net benefits
of 1995 requires, at 2 U.S.C. 1532, that 48 CFR Part 852
(including potential economic,
agencies prepare an assessment of Government procurement, Reporting
environmental, public health and safety
anticipated costs and benefits before and recordkeeping requirements.
effects, distributive impacts, and
issuing any rule that may result in the equity). E.O. 13563 emphasizes the Signing Authority
expenditure by State, local, and tribal importance of quantifying both costs
Governments, in the aggregate, or by the The Secretary of Veterans Affairs, or
and benefits of reducing costs, of designee, approved this document and
private sector, of $100 million or more harmonizing rules, and of promoting
(adjusted annually for inflation) in any authorized the undersigned to sign and
flexibility. E.O. 12866, Regulatory submit the document to the Office of the
one year. This final rule will have no Planning and Review defines
such effect on State, local, and tribal Federal Register for publication
‘‘significant regulatory action’’ to mean electronically as an official document of
Governments or on the private sector. any regulatory action that is likely to the Department of Veterans Affairs. Gina
Paperwork Reduction Act result in a rule that may: ‘‘(1) Have an S. Farrisee, Deputy Chief of Staff,
Although this action contains annual effect on the economy of $100 Department of Veterans Affairs,
provisions constituting collections of million or more or adversely affect in a approved this document on February
information at 48 CFR 814.201–6(a) and material way the economy, a sector of 23, 2018, for publication.
852.214–70, under the provisions of the the economy, productivity, competition,
jobs, the environment, public health or Dated: March 13, 2018.
Paperwork Reduction Act of 1995 (44 Consuela Benjamin,
U.S.C. 3501–3521), no new or proposed safety, or State, local, or tribal
governments or communities; (2) Create Regulations Development Coordinator, Office
revised collections of information are of Regulation Policy & Management, Office
associated with this final rule. The a serious inconsistency or otherwise
interfere with an action taken or of the Secretary, Department of Veterans
information collection requirements for Affairs.
48 CFR 814.201–6(a) and 852.214–70 planned by another agency; (3)
Materially alter the budgetary impact of For the reasons set out in the
are currently approved by OMB, have preamble, VA amends 48 CFR parts 801,
been assigned OMB control number entitlements, grants, user fees, or loan
programs or the rights and obligations of 802, 803, 812, 814, 822, and 852 as
2900–0593, and are being removed and follows:
discontinued. This results in a removal recipients thereof; or (4) Raise novel
of 2 estimated annual burden hours to legal or policy issues arising out of legal PART 801—DEPARTMENT OF
respondents. mandates, the President’s priorities, or VETERANS AFFAIRS ACQUISITION
the principles set forth in this Executive REGULATION SYSTEM
Regulatory Flexibility Act order.’’
This final rule will not have a VA has examined the economic, ■ 1. The authority citation for part 801
significant economic impact on a interagency, budgetary, legal, and policy is revised to read as follows:
substantial number of small entities as implications of this regulatory action, Authority: 40 U.S.C. 121(c); 41 U.S.C.
they are defined in the Regulatory and it has been determined this rule is
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1121(c)(3); 41 U.S.C. 1702; and 48 CFR
Flexibility Act, 5 U.S.C. 601–612. The not a significant regulatory action under 1.301–1.304.
rule text does not change VA’s policy E.O. 12866. This final rule is considered
regarding small businesses. Therefore, an E.O. 13771 deregulatory action. 801.106 [Amended]
the rule does not have a significant Details on the estimated cost savings of ■ 2. In section 801.106, table columns
economic impact on substantial number this final rule can be found in the rule’s titled ‘‘48 CFR part or section where
of small entities. There are no increased economic analysis. identified and described’’ and ‘‘Current

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16208 Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Rules and Regulations

OMB Control Number,’’ are amended to Subpart 803.3 [Removed and reserved] PART 812—ACQUISITION OF
remove the references to section COMMERCIAL ITEMS
852.214–70 and the corresponding OMB ■ 8. Subpart 803.3 is removed and
Control Number 2900–0593. reserved. ■ 17. The authority citation for part 812
is revised to read as follows:
PART 802—DEFINITIONS OF WORDS Subpart 803.4 [Removed and reserved] Authority: 40 U.S.C. 121(c); 41 U.S.C.
AND TERMS 1121(c)(3); 41 U.S.C. 1702; and 48 CFR
■ 9. Subpart 803.4 is removed and 1.301–1.304.
■ 3. The authority citation for part 802 reserved. ■ 18. Section 812.301 is amended by
is revised to read as follows:
803.502 [Removed] revising paragraph (b)(13) to read as
Authority: 40 U.S.C. 121(c); 41 U.S.C. follows:
1121(c)(3); 41 U.S.C. 1702; and 48 CFR ■ 10. Section 803.502 is removed.
1.301–1.304. 812.301 Solicitation provisions and
■ 11. Section 803.570–1 is revised to contract clauses for the acquisition of
■ 4. Section 802.101 is amended to read as follows: commercial items.
remove definitions of ‘‘D&S * * * * *
Committee,’’ ‘‘Debarring Official,’’ and 803.570–1 Policy.
(b) * * *
‘‘Suspending official,’’ and to add VA policy prohibits contractors from (13) 852.214–74, Marking of Bid
definitions of ‘‘Suspending and making references in its commercial Samples.
Debarring Official (SDO)’’ and advertising to VA contracts in a manner * * * * *
‘‘Suspension and Debarment Committee that states or implies the Government
(S&D Committee)’’ in alphabetical order approves or endorses the product or PART 814—SEALED BIDDING
to read as follows: service or considers it superior to other
products or services. The intent of this ■ 19. The authority citation for part 814
802.101 Definitions. is revised to read as follows:
policy is to preclude the appearance of
* * * * * bias toward any product or service. Authority: 40 U.S.C. 121(c); 41 U.S.C.
Suspending and Debarring Official 1121(c)(3); 41 U.S.C. 1702; and 48 CFR
(SDO) means the Senior Procurement Subpart 803.6 [Removed and reserved] 1.301–1.304.
Executive (SPE) or Deputy Senior
Procurement Executive (DSPE) if further ■ 12. Subpart 803.6 is removed and Subpart 814.1 [Removed and reserved]
delegated in writing by the SPE. reserved.
■ 20. Subpart 814.1 is removed and
Suspension and Debarment
Subpart 803.7 [Removed and reserved] reserved.
Committee (S&D Committee) means a
■ 21. Section 814.201 is revised to read
committee authorized by the SDO to
assist the SDO with suspension and ■ 13. Subpart 803.7 is removed and as follows:
debarment related matters. reserved.
814.201 Preparation of invitations for bids.
* * * * * Subpart 803.8 [Removed and reserved] ■ 22. Section 814.201–2 is added to read
as follows:
PART 803—IMPROPER BUSINESS
■ 14. Subpart 803.8 is removed and
PRACTICES AND PERSONAL 814.201–2 Part I—The Schedule.
reserved.
CONFLICTS OF INTEREST (b) Section B, Supplies or services and
■ 15. Subpart 803.11 is added to read as prices.
■ 5. The authority citation for part 803 follows: (1) When the contracting officer
is revised to read as follows: determines that it will be to the
Subpart 803.11—Preventing Personal Government’s advantage to make an
Authority: 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); 41 U.S.C.1702; and 48 CFR 1.301–
Conflicts of Interest for Contractor award on the basis of a summary bid,
1.304. Employees Performing Acquisition the IFB shall include the following
Functions statement in Part I—The Schedule,
Subpart 803.1 [Removed and reserved] Section B:
803.1103 Procedures.
The award will be made on either the
■ 6. Subpart 803.1 is removed and (a) By use of the contract clause at
bid price for individual items or the
reserved. 52.203–16, Preventing Personal
summary bid price summary for all
Conflicts of Interest, the contracting
■ 7. Section 803.204 is revised to read items, whichever results in the lowest
officer shall require each contractor
as follows: price to the Government. Therefore, to
whose employees perform acquisition
In providing the notice and hearing assure proper evaluation of all bids, a
functions closely associated with
required by FAR 3.204, the following bidder quoting a summary bid price
inherently Governmental functions to
applies— must also quote a price on each
obtain from each covered employee a
individual item included in the
803.204 Treatment of violations. signed non-disclosure agreement to
summary bid price.
prohibit disclosure of non-public
(a) The SDO shall determine whether information accessed through (2) When a contracting officer
or not a violation of the Gratuities performance of a Government contract. determines that it will be to the
clause, 52.203–3 has occurred and what Government’s advantage to make an
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See FAR 3.1103(a)(2)(iii).
action will be taken under FAR 3.204(c). award by group or groups of items, the
(c) When the SDO determines that a Subpart 803.70 [Removed and IFB shall include the following
violation has occurred and that reserved] statement in Part I—The Schedule,
debarment is being considered, he or Section B:
she shall follow procedures at 809.406– ■ 16. Subpart 803.70 is removed and Award shall be made on the basis of
3. reserved. the bid price for each identified group

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16210 Federal Register / Vol. 83, No. 73 / Monday, April 16, 2018 / Rules and Regulations

Commercial Advertising (May 2018) ■ 43. Section 852.214–74 is revised to DEPARTMENT OF TRANSPORTATION
The Contractor shall not make reference in read as follows:
its commercial advertising to Department of Federal Motor Carrier Safety
Veterans Affairs contracts in a manner that 852.214–74 Marking of bid samples. Administration
states or implies the Department of Veterans As prescribed in 814.201–6(b), insert
Affairs approves or endorses the Contractor’s 49 CFR Parts 370, 371, 373, 375, 376,
products or services or considers the
the following provision:
378, 379, 380, 382, 387, 390, 391, 395,
Contractor’s products or services superior to Marking of Bid Samples (May 2018) 396, and 398
other products or services.
Any bid sample(s) furnished must be in the [Docket No. FMCSA–2012–0376]
(End of clause) quantities specified in the solicitation. Cases
or packages must be plainly marked ‘Bid RIN 2126–AB47
852.203–71 [Removed and reserved] Sample(s)’’ with the complete lettering/
■ 38. Section 852.203–71 is removed numbering and description of the related bid Electronic Documents and Signatures
and reserved. item(s), the number of the Invitation for Bids, AGENCY: Federal Motor Carrier Safety
and the name of the bidder submitting the Administration (FMCSA), DOT.
852.214–70 [Removed and reserved]. bid sample(s).
ACTION: Final rule.
■ 39. Section 852.214–70 is removed
and reserved. (End of provision) SUMMARY: FMCSA amends its
■ 40. Section 852.214–71 is revised to ■ 44. Section 852.222–70 is revised to regulations to allow the use of electronic
read as follows: read as follows: records and signatures to satisfy
FMCSA’s regulatory requirements.
852.214–71 Restrictions on alternate 852.222–70 Contract work-hours and These amendments permit the use of
item(s). safety standards—nursing home care for electronic methods to generate, certify,
As prescribed in 814.201–6(a)(1), veterans. sign, maintain, or exchange records so
insert the following provision: long as the documents accurately reflect
As prescribed in 822.305, insert the
Restrictions on Alternate Item(s) (May 2018) following clause: the required information and can be
Bids on [ ]* will be considered only if used for their intended purpose. This
Contract Work Hours and Safety rule applies only to those documents
acceptable bids on [ ]** are not received or Standards—Nursing Home Care for Veterans
do not satisfy the total requirement. (May 2018)
that FMCSA’s regulations obligate
*Contracting Officer will insert an alternate entities or individuals to retain; it does
item that is considered acceptable. (a) No Contractor and subcontractor under not apply to forms or other documents
**Contracting Officer will insert the this contract shall prohibit the payment of that must be submitted directly to
required item and item number. overtime wages to their employees for work FMCSA unless there are already
in excess of 40 hours in any workweek, procedures in place in the regulations
(End of provision) which would otherwise be a violation of for electronic submission to FMCSA.
■ 41. Section 852.214–72 is revised to Contract Work Hours and Safety Standards This rule partially implements the
read as follows: (the statute) (40 U.S.C. 3701, et seq.), Government Paperwork Elimination Act
provided—
852.214–72 Alternate item(s). (GPEA) and the Electronic Signatures in
(1) The Contractor or subcontractor is
As prescribed in 814.201–6(a)(2), Global and National Commerce Act (E–
primarily engaged in the care of nursing
insert the following provision: SIGN).
home patients residing on the contractor’s or
subcontractor’s premises; DATES: This final rule is effective June
Alternate Item(s) (May 2018)
(2) There is an agreement or understanding 15, 2018.
Bids on [ ]* will be given equal Petitions for Reconsideration of this
consideration along with bids on [ ]** and between the Contractor or subcontractor and
any such bids received may be accepted if to their employees, before performance of work, final rule must be submitted to the
the advantage of the Government. Tie bids that a work period of 14 consecutive days is Administrator of FMCSA in accordance
will be decided in favor of [ ].** acceptable in lieu of a work period of 7 with 49 CFR 389.35 no later than May
*Contracting Officer will insert an alternate consecutive days for the purpose of overtime 16, 2018.
item that is considered acceptable. compensation; FOR FURTHER INFORMATION CONTACT: Mr.
**Contracting Officer will insert the (3) Employees receive overtime David Miller, Office of Policy, Federal
required item and item number. compensation at a rate no less than 11⁄2 times Motor Carrier Safety Administration,
the employees’ regular hourly rate of pay for 1200 New Jersey Avenue SE,
(End of provision)
work in excess of 80 hours in any 14 day Washington, DC 20590–0001,
■ 42. Section 852.214–73 is revised to period; and
read as follows: david.miller@dot.gov.
(4) Pay is otherwise computed in If you have questions on viewing or
852.214–73 Alternate packaging and accordance with the requirements of the Fair submitting material to the docket,
packing. Labor Standards Act of 1938, as amended. contact Docket Services, telephone (202)
(b) Subcontracts. The Contractor shall 366–9826.
As prescribed in 814.201–6(a)(3),
insert the text of this clause, including this
insert the following provision: paragraph (b), in subcontracts at any tier. The SUPPLEMENTARY INFORMATION: This final
Alternate Packaging and Packing (May 2018) Contractor shall be responsible for rule is organized as follows:
The bidders offer must clearly indicate the compliance by any subcontractor or lower- I. Rulemaking Documents
quantity, package size, unit, or other different tier subcontractor with the provisions set A. Availability of Rulemaking Documents
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feature upon which the quote is made. forth in paragraphs (a) through (b) of this B. Privacy Act
Evaluation of the alternate or multiple clause. II. Executive Summary
alternates will be made on a common A. Purpose and Summary of the Major
denominator such as per ounce, per pound, (End of clause) Provisions
etc., basis. B. Benefits and Costs
[FR Doc. 2018–07833 Filed 4–13–18; 8:45 am] III. Abbreviations and Acronyms
(End of provision) BILLING CODE 8320–01–P IV. Legal Basis for the Rulemaking

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Document Created: 2018-04-14 02:19:42
Document Modified: 2018-04-14 02:19:42
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		Rules and Regulations
Action		Final rule.
Dates		This rule is effective on May 16, 2018.
Contact		Mr. Ricky Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 632-5276. (This is not a toll-free telephone number.)
FR Citation		83 FR 16206
RIN Number		2900-AP50
CFR Citation		48 CFR 801 48 CFR 802 48 CFR 803 48 CFR 812 48 CFR 814 48 CFR 822 48 CFR 852
CFR Associated		Administrative Practice and Procedure; Government Procurement; Reporting and Recordkeeping Requirements; Antitrust; Conflict of Interest and Labor