83 FR 45374 - VA Acquisition Regulation: Contracting by Negotiation; Service Contracting
DEPARTMENT OF VETERANS AFFAIRS Federal Register Volume 83, Issue 174 (September 7, 2018)
Federal Register Volume 83, Issue 174 (September 7, 2018)
| Page Range | 45374-45384 | |
| FR Document | 2018-18310 |
[Federal Register Volume 83, Number 174 (Friday, September 7, 2018)] [Proposed Rules] [Pages 45374-45384] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-18310] [[Page 45374]] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS 48 CFR Parts 801, 815, 816, 837, 849, 852, and 871 RIN 2900-AQ20 VA Acquisition Regulation: Contracting by Negotiation; Service Contracting AGENCY: Department of Veterans Affairs. ACTION: 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proposing to amend and update its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove procedural guidance internal to VA into the VA Acquisition Manual (VAAM), and to incorporate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 These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors.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 will publish them in the Federal Register. VA will combine related topics, as appropriate. In particular, this rulemaking revises VAAR concerning Contracting by Negotiation and Service Contracting, as well as affected parts covering the Department of Veterans Affairs Acquisition Regulation System, Types of Contracts, Termination of Contracts, Solicitation Provisions and Contract Clauses, and Loan Guaranty and Vocational Rehabilitation and Employment Programs. DATES: Comments must be received on or before November 6, 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. (This is not a toll-free number.) Comments should indicate that they are submitted in response to ``RIN 2900-AQ20--VA Acquisition Regulation: Contracting by Negotiation; Service Contracting.'' 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 L. Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 632-5276. This is not a toll-free 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 an Integrated Product Team of agency stakeholders. The VAAR uses the regulatory structure and arrangement of the FAR and headings and subject areas are consistent with the FAR content. The VAAR is divided into subchapters, parts (each of which covers a separate aspect of acquisition), subparts, and sections. 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. 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 authorities that are removed from the VAAR will be included in VA Acquisition Manual (VAAM) as internal agency guidance. VAAR Part 801--Department of Veterans Affairs Acquisition Regulation System In the table in 801.106, we propose to amend the clause number 852.237-7 to 852.237-70 to conform to the FAR numbering system for agency regulations. VAAR Part 815--Contracting by Negotiation We propose to add 41 U.S.C. 1702 as an authority for part 815, which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. We also propose to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. In subpart 815.3, Source Selection, we propose to remove 815.303, Responsibilities, to the VAAM since it contains procedural guidance that is internal to the VA and will be updated and moved to the VA Acquisition Manual (VAAM). We propose to remove 815.304, Evaluation factors and significant subfactors, and move it to the VAAM as it contains procedural guidance that is internal to the VA and will be updated and moved to the VAAM. We propose to amend section 815.304-70, Evaluation factor commitments, by deleting paragraph (a)(4). This paragraph was removed because the VA Mentor-Prot[eacute]g[eacute] Program is no longer current. We propose to revise the section by removing paragraph (b) and moving it to the VAAM as it contains procedural information. We also propose to renumber the paragraphs of the section accordingly. We propose to amend section 815.304-71, Solicitation provision and clause, to make a correction to add in the words ``Small Business'' that are [[Page 45375]] missing in the current version of the VAAR. In subpart 815.3, Source Selection, we propose to add a new section, 815.370, Only one offer. This is a newly developed section for VA. The inclusion of this policy gives the contracting officer the ability to re-solicit for an action if they only receive one offer and if the solicitation gave offerors less than 30 days to submit a proposal. The following sections have been added to this section and provide additional guidance pertaining to this new policy: 815.370-1, Policy; 815.370-2, Promote competition; 815.370-3, Fair and reasonable price, 815.370-4, Exceptions and 815.370-5, Solicitation provision. These subsections under section 815.370 explain that it is VA policy, if only one offer is received in response to a competitive solicitation, to take action to promote competition and ensure that the price is fair and reasonable. It describes the necessary steps to meet these requirements. Section 815.370-4, Exceptions, cites the exceptions to the policy and 815.370-5, Solicitation provision, prescribes the inclusion of 852.215-72, Notice of Intent to Re-solicit, in competitive solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items that will be solicited for fewer than 30 days, unless an exception at 815.370-4 applies. We propose to remove subpart 815.4, Contract Pricing, as it contains procedural guidance that is internal to the VA and will therefore be moved to the VAAM. We propose to remove subpart 815.6, Unsolicited Proposals, as it contains procedural guidance that is internal to the VA and will therefore be moved to the VAAM. VAAR Part 816--Types of Contracts The authority citation for part 816 is revised to correct the citation for 41 U.S.C. 1121 by adding reference to paragraph (c)(3). In subpart 816.5, we propose to add section 816.506-70, Requirements--supplement for mortuary services, prescribing clause 852.216-76, Requirements--Supplement for Mortuary Services, for all contracts for mortuary services. VAAR Part 837--Service Contracting We propose to amend the authority citation for part 837 to add reference to the Crime Control Act of 1990 and the Pro-Children Act of 2001 which provide the authority for new clauses that address protection of children under contracts providing child care services. We also propose to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. We also propose to revise the part 837 authorities to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. 38 U.S.C. 501 is a more general authority for the Secretary to utilize to prescribe all rules and regulations. The title 41 authority is more appropriate to cite when publishing the VAAR. We propose to remove section 837.103, Contracting officer responsibility, and to address the subject of documenting personal versus non-personal services determinations in the VAAM. We propose to remove the title and text at section 837.110, Solicitation provisions and contract clauses, since FAR 52.237-2 Protection of Government Buildings, Equipment and Vegetation and 852.228-71, Indemnification and Insurance, outline contractor liabilities and required insurance levels. We propose to amend section 837.110-70, Services provided to eligible beneficiaries, to retitle it ``VA solicitation provisions and contract clauses,'' to remove the prescription for the clause, 852.271- 70, Nondiscrimination in services provided to beneficiaries, and to add the prescriptions for the new clauses 852.237-74, Nondiscrimination in Service Delivery, and 852.237-75, Key Personnel. In subpart 837.2, Advisory and Assistance Services, and section 837.203, Policy, we propose to remove the entire subpart since it duplicates coverage in FAR. In subpart 837.4, Nonpersonal Health Care Services, section 837.403, Contract clause, we propose to amend the section to redesignate it as section 837.403-70, VA contract clauses; to renumber clause 852.237-7, Indemnification and Medical Liability Insurance, as 852.237-70 to conform to the FAR guidance for numbering of clauses; to insert in the clause a five day notice requirement for evidence of coverage and of any change in insurance providers during the term of the contract; and to add prescriptions for three new clauses that address protection of children under contracts providing child care services as required by FAR 37.103(d): 852.237-71, Nonsmoking Policy for Children Services; 852.237-72, Crime Control Act--Reporting of Child Abuse; and 852.237-73, Crime Control Act--Requirement for Background Checks. We propose the following revisions to subpart 837.70, Mortuary Services, to remove internal and outdated guidance and to address only acquisition policy affecting mortuary services: We propose to add section 837.7000, Scope, and to cite the statutory basis for the mortuary service benefits covered. We propose to remove the existing section 837.7001, General, and add a new section 837.7001, Solicitation provisions and contract clauses, to prescribe one new provision, 852.237-76, Award to Single Offeror; and four new clauses specific to the coverage of mortuary services: 852.237-77, Area of Performance, which describes the contractor's responsibilities both within and outside of the contract designated area of performance and the basis for payment of any transportation fees for pick-up from or delivery points outside that area; 852.237-78, Performance and Delivery, which requires the contractor's response to requests for services within 36 hours and allows the Government to require that the remains be held for up to 72 hours from completion of services; 852.237-79, Subcontracting, which stipulates that the Contractor shall not subcontract any work under this contract without the contracting officer's written approval and states the clause does not apply to contracts of employment between the Contractor and its personnel; and 852.237-80, Health Department and Transport Permits, which requires to contractor to meet all State and local licensing requirements and obtain and furnish all necessary health department and shipping permits at no additional cost to the Government. We also propose to add a cross-reference to the availability of clauses prescribed in 816.506-70 and 849.504-70. We propose to remove sections 837.7002, List of qualified funeral directors; 837.7003, Funeral authorization; 837.7004, Administrative necessity; and 837.7005, Unclaimed remains--all other cases, because this material is based on internal VA guidance that has been rescinded. VAAR Part 849--Termination of Contracts We propose to revise the authority citation for part 849 to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that [[Page 45376]] speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. We also propose to revise the part 849 authorities to add 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. In part 849, we propose to add subpart 849.5, Contract Termination Clauses, section 849.504, Termination of fixed-price contracts for default, which contains no text but implements FAR 49.504, and section 849.504-70, Termination of mortuary services, to prescribe a new clause 852.249-70, Termination for Default--Supplement for Mortuary Services. VAAR Part 852--Solicitation Provisions and Contract Clauses We propose to amend the authority citation for part 852 to add reference to the 20 U.S.C. 7181-7183 (Pro-children Act of 2001), and Public Law 101-647, (Crime Control Act of 1990) which provided the authority for new clauses that address protection of children under contracts providing child care services. We also propose to add as an authority 41 U.S.C. 1303, which is 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. In subpart 852.2, we propose to amend 852.215-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors. This was revised to change it from a clause to a provision and language was added to comply with the statute that requires that any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. We propose to amend 852.215-71, Evaluation Factor Commitments. This was revised to add language to comply with the statute that requires that any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. We propose to add clause 852.215-72, Notice of Intent to Re- Solicit, which informs offerors that in the event that only one offer is received in response to a solicitation that allows offerors fewer than 30 days to submit their proposal, the Contracting Officer may cancel the solicitation and re-solicit for an additional period of at least 30 days in accordance with 815.370-2. We propose to add clause 852.216-76, Requirements--Supplement for Mortuary Services, for all requirements contracts for mortuary services. We are providing the final publication and effective dates of March 2018 for the following clauses published in final under rule AP82: 852.216-71, 852.216-72, 852.216-73, 852.216-74, 852.216-75, 852.228-71, and 852.228-73. We propose to remove the title and text of clause 852.237-70, Contractor Responsibilities, which is determined to be unnecessary since FAR clause 52.237-2, Protection of Government Buildings, Equipment and Vegetation, and VAAR clause 852.228-71, Indemnification and Insurance, both outline contractor liabilities and required insurance levels. We propose to revise clause 852.237-7, Indemnification and Medical Liability Insurance, to renumber it 852.237-70, and to make minor revisions to require the contracting officer to insert the dollar amount values of standard coverages prevailing within the local community as to the specific medical specialty, or specialties, concerned, or such higher amount as the contracting officer deems necessary to protect the Government's interests; and to insert a requirement for the contractor to notify the contracting officer within 5 days of becoming aware of a change in insurance providers during the performance period of the contract for all health-care providers performing under it; and to furnish to the contracting officer evidence of insurance at least five days before commencement of work. We propose to add the following clauses to address protection of children under contracts providing child care services as required by 20 U.S.C. 7181-7183 (Pro-Children Act of 2001), and Public Law 101-647, (Crime Control Act of 1990): 852.237-71, Nonsmoking Policy for Children's Services, prohibiting smoking in facilities where certain federally funded children's services are provided; 852.237-72, Crime Control Act--Reporting of Child Abuse, which imposes responsibilities on certain individuals who, while engaged in a professional capacity or activity, as defined in the Act, on Federal land or in a federally- operated (or contracted) facility, learn of facts that give the individual reason to suspect that a child has suffered an incident of child abuse; and 852.237-73, Crime Control Act--Requirement for Background Checks, which requires the contractor's compliance with the Act requiring that all individuals involved with the provision of child care services, as defined in the act, to children under the age of 18 undergo a criminal background check. We propose to add new clause 852.237-75, Key Personnel, requiring the written consent of the Contracting Officer to changes in key personnel, and new clauses specific to the coverage of mortuary services: 852.237-76, Award to Single Offeror, to stipulate that awards will be made to a single offeror rather than to multiple offerors; 852.237-77, Area of Performance, to clarify Contractor's responsibilities for its designated area of service; 852.237-78, Performance and Delivery, to specify the required time frame for completion of services and the Government's right to require a hold on services; 852.237-79, Subcontracting, to require the Contracting Officer's written approval to subcontract any work; and 852.237-80, Health Department and Transport Permits, to stipulate the contractor's responsibility to obtain all transport permits required under the contract at no additional cost to the Government. We propose to add the clause 852.249-70, Termination for Default-- Supplement for Mortuary Services, for use in contracts for mortuary services. This clause expressly identifies actions, such as soliciting families of decedents to provide additional services, subcontracting services without Government consent, or refusing to perform services for any particular remains. We propose to redesignate and retitle clause 852.271-70, Non- discrimination in Services Provided to Beneficiaries, as 852.237-74, Non-discrimination in Service Delivery, and prescribed the clause at under VAAR section 837.110-70(a) to conform to FAR structure. This clause states that it is the policy of the Department of Veterans Affairs that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of VA programs and services based on non-merit factors such as race, color, national origin, religion, sex, gender identity, sexual orientation, or disability (physical or mental). This clause also stipulates that by acceptance of this contract, the contractor agrees to comply [[Page 45377]] with this policy in supporting the program and in performing the services called for under this contract. The clause is revised to clarify the language and the contractor's obligation to ensure that each of its employees, and any sub-contractor staff, is made aware of, understands, and complies with this policy. VAAR Part 871--Loan Guaranty and Vocational Rehabilitation and Employment Programs In the authority citation for part 871, we propose to add 41 U.S.C. 1121(c)(3) which is from Title 41, Public Contracts, Positive Law codification that speaks to the authority of an executive agency under another law to prescribe policies, regulations, procedures, and forms for procurement that are subject to the authority conferred in the cited section, as well as other sections of Title 41 as shown therein. We also propose to revise the part 871 authorities to replace the 38 U.S.C. 501 citation with 41 U.S.C. 1702 which addresses the acquisition planning and management responsibilities of Chief Acquisition Officers and Senior Procurement Executives, to include implementation of unique procurement policies, regulations and standards of the executive agency. 38 U.S.C. 501 is a more general authority for the Secretary to utilize to prescribe all rules and regulations. The title 41 authority is more appropriate to cite when publishing the VAAR. In section 871.212, we propose to revise this section to redesignate the first paragraph as (a); to remove the prescription of clause 852.271-70, Nondiscrimination In Services Provided To Beneficiaries; to renumber the remaining paragraphs as (1) through (4); and to add new paragraph (b) to refer the contracting officer to section 837.110-70(a) for the prescription of the new clause 852.237-74, Non-discrimination In Service Delivery. 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 VAAR for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with FAR subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts. Executive Orders 12866, 13563 and 13771 Executive Orders (E.O.) 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 rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi). This proposed rule will impose one new and one amended information collection requirement. Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action OMB for its review. Notice of OMB approval for the new information collection and the information collection amendment will be published in a future Federal Register document. Under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501- 3521), a current collection of information, OMB No. 2900-0590, contained in part 837 at proposed section 837.403-70 (currently numbered 837.403) and in part 852 at proposed section 852.237-70 (currently numbered 852.237-7), is being revised as set forth in the SUPPLEMENTARY INFORMATION portion of this proposed rule. The clause number that appears in the table at 801.106 is also proposed to be revised accordingly. Summary of collection of information: This action contains provisions constituting an existing information collection at 48 CFR 837.403 and 852.237-7, under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) and has been assigned OMB control number 2900-0590. This action proposes revisions to 837.403 to renumber it as 837.403-70, to retitle it as ``VA contract clauses,'' and to renumber the clause as 852.237-70 while retaining the title, ``Indemnification and Medical Liability Insurance.'' Clause 852.237-70 is used in lieu of FAR clause 52.237-7, Indemnification and Medical Liability Insurance, in solicitations and contracts for the acquisition of non-personal health care services. It requires the apparent successful bidder/offeror, upon the request of the contracting officer, prior to contract award, to furnish evidence of insurability of the offeror and/or all health-care providers who will perform under the contract. In addition, the clause requires the contractor, prior to commencement of services under the contract, to provide Certificates of Insurance or insurance policies evidencing that the firm possesses the types and amounts of insurance [[Page 45378]] required by the solicitation. We propose to modify the collection to require the contractor to notify the contracting officer within five days of becoming aware of a change in insurance providers during the performance period of this contract for all health-care providers performing under this contract, and to provide to the contracting officer evidence of such insurance for any subcontractor at least five days before commencement of work by that subcontractor. Description of need for information and proposed use of information: The information is required in order to protect VA by ensuring that the firm to which award may be made and the individuals who may provide health care services under the contract are insurable and that, following award, the contractor and its employees will continue to possess the types and amounts of insurance required by the solicitation. It helps ensure that VA will not be held liable for any negligent acts of the contractor or its employees and ensures that VA and VA beneficiaries will be protected by adequate insurance coverage. The clause number is changed to 852.237-70 to conform to the FAR guidance for numbering of clauses. The burden imposed by this collection remains unchanged as follows: Estimated number of respondents annually: 1,500. Estimated frequency of responses: One response for each contract to be awarded. Estimated average burden per collection: 30 minutes. Estimate of the total annual hour burden of the collection of information: 750 hours. Annual cost to all respondents: $15,000 (at $20 per hour, based on our belief that the majority of the labor effort would be clerical similar to GS-5). Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), a new collection of information is proposed, under OMB No. 2900-AQ20, that is contained in Part 837 at proposed section 837.403-70 and Part 852 at proposed clause 852.237-73, as set forth in the SUPPLEMENTARY INFORMATION portion of this proposed rule. The clause number and the OMB clearance number would be added to the table at 801.106. Summary of collection of information: Under the Crime Control Act of 1990 (42 U.S.C. 13041), each agency of the Federal Government, and every facility operated by the Federal Government, or operated under contract with the Federal Government, that hires, or contracts for hire, individuals involved with the provision of child care services to children under the age of 18 shall assure that all existing and newly- hired employees undergo a criminal history background check. New VAAR clause 852.237-73, Crime Control Act--Requirement for Background Checks, is required in all solicitations, contracts, and orders that involve providing child care services to children under the age of 18, including social services, health and mental health care, child-(day) care, education (whether or not directly involved in teaching), and rehabilitative programs covered under the statute. Description of need for information and proposed use of information: The contract clause would require the contractor to perform the background checks on behalf of VA to assure the safety of children under the age of 18 that are recipients of services under a VA program. It is intended to assure their safety by avoiding hiring individuals with a history of criminal acts and especially acts of child abuse. Estimated number of respondents annually: 500. Estimated frequency of responses: 20 per contract awarded. Estimated average burden per collection: 1 hour. Estimate of the total annual hour burden of the collection of information: 10,000 hours. Annual cost to all respondents: $550,000 ($55 rate including fringe benefits and assuming senior level (GS-13) technical specialist). This clause would enable the VA to be in compliance with the Crime Control Act of 1990 and to protect children that are within its health care systems. Interested persons have 60 days in which to provide comment on the information collection. The Department considers comments by the public on proposed collections of information in--Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; Evaluating the accuracy of the Department's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used; Enhancing the quality, usefulness, and clarity of the information to be collected; and Minimizing the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. Comments on the collection of information contained in this proposed rule should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies sent by mail or hand delivery to the Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. NW, Room 1068, Washington, DC 20420; fax to (202) 273- 9026, email to www.Regulations.gov. Comments should indicate they are submitted in response to ``RIN 2900-AQ20.'' Individuals are not required to respond to a collection of information unless it displays a currently valid OMB control number. OMB is required to make a decision concerning the proposed collection of information contained in this proposed rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment on the proposed regulation. Regulatory Flexibility Act This proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This proposed rule will generally be small business neutral. The overall impact of the proposed rule will be of benefit to small businesses owned by Veterans or Service-Disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating procedures. VA estimates no cost impact to individual business would result from these rule updates. On this basis, the adoption of this proposed rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this proposed rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of [[Page 45379]] anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule will have no such effect on State, local, and tribal Governments or on the private sector. List of Subjects 48 CFR Part 801 Administrative practice and procedure. 48 CFR Parts 815, 816, 837, and 849 Government procurement. 48 CFR Part 852 Government procurement, Reporting and recordkeeping requirements. 48 CFR Part 871 Government procurement, Loan programs--social programs, Loan programs--veterans, Reporting and recordkeeping requirements, Vocational rehabilitation. Signing Authority The Secretary of Veterans Affairs approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on August 20, 2018, for publication. Dated: August 21, 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 proposes to amend 48 CFR parts 801, 815, 816, 837, 849, 852 and 871 as follows: PART 801--DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION SYSTEM 0 1. The authority citation for part 801 continues to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 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 table in section 801.106 by removing clause number 852.237-7 and adding in its place clause number 852.237-70. PART 815--CONTRACTING BY NEGOTIATION 0 3. The authority citation for part 815 is revised to read as follows: Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702 and 48 CFR 1.301-1.304. Subpart 815.3--Source Selection 815.303 [Removed] 0 4. Section 815.303 is removed. 815.304 [Removed] 0 5. Section 815.304 is removed. 0 6. Section 815.304-70 is revised to read as follows: 815.304-70 Evaluation factor commitments. VA contracting officers shall-- (a) Include the provision at 852.215-70, Service-Disabled Veteran Owned Small Business (SDVOSB) and Veteran Owned Small Business (VOSB) Evaluation Factors, in negotiated solicitations giving preference to offers received from VOSBs and additional preference to offers received from SDVOSBs; (b) Use past performance in meeting SDVOSB subcontracting goals as a non-price evaluation factor in making award determination; and (c) Use the proposed inclusion of SDVOSBs or VOSBs as subcontractors as an evaluation factor when competitively negotiating the award of contracts or task or delivery orders. 0 7. Section 815.340-71 is revised to read as follows: 815.304-71 Solicitation provision and clause. (a) The contracting officer shall insert the provision at 852.215- 70, Service-Disabled Veteran-Owned Small Business (SDVOSB) and Veteran- Owned Small Business (VOSB) Evaluation Factors, in competitively negotiated solicitations that are not set aside for SDVOSBs or VOSBs. (b) The contracting officer shall insert the clause at 852.215-71, Evaluation Factor Commitments, in solicitations and contracts that include VAAR provision 852.215-70, Service-Disabled Veteran-Owned Small Business (SDVOSB) and Veteran-Owned Small Business (VOSB) Evaluation Factors. 0 8. Section 815.370 is added to read as follows: 815.370 Only one offer. 0 9. Section 815.370-1 is added to read as follows: 815.370-1 Policy. It is VA policy, if only one offer is received in response to a competitive solicitation, to-- (a) Take action to promote competition (see 815.370-2); and (b) Ensure that the price is fair and reasonable (see 815.370-3) and to comply with the statutory requirement for certified cost or pricing data (see FAR 15.403-4). 0 10. Section 815.370-2 is added to read as follows: 815.370-2 Promote competition. Except as provided in 815.370-4, if only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer should-- (a) Consult with the requiring activity as to whether the requirements document should be revised in order to promote more competition (see FAR 6.502(b) and 11.002); and (b) Consider re-soliciting, allowing an additional period of at least 30 days for receipt of proposals. 0 11. Section 815.370-3 is added to read as follows: 815.370-3 Fair and reasonable price. (a) If there was ``reasonable expectation that two or more offerors, competing independently, would submit priced offers'' but only one offer is received, this circumstance does not constitute adequate price competition unless an official at a level above the contracting officer approves the determination that the price is reasonable (see FAR 15.403-1(c)(1)(ii)). (b) Except as provided in 815.370-4(a), if only one offer is received when competitive procedures were used and the solicitation allowed at least 30 days for receipt of proposals (unless the 30-day requirement is not applicable in accordance with 815.370-4(a)(3), the contracting officer shall-- (1) Determine through cost or price analysis that the offered price is fair and reasonable and that adequate price competition exists (with approval of the determination at a level above the contracting officer) or another exception to the requirement for certified cost or pricing data applies (see FAR 15.403-1(c) and 15.403-4). In these circumstances, no further cost or pricing data is required; or (2)(i) Obtain from the offeror cost or pricing data necessary to determine a fair and reasonable price and comply with the requirement for certified cost or pricing data at FAR 15.403-4. For acquisitions that exceed the cost or pricing data threshold, if no exception [[Page 45380]] at FAR 15.403-1(b) applies, the cost or pricing data shall be certified; and (ii) Enter into negotiations with the offeror as necessary to establish a fair and reasonable price. The negotiated price should not exceed the offered price. 0 12. Section 815.370-4 is added to read as follows: 815.370-4 Exceptions. (a) The requirements at 815.370-2 do not apply to-- (1) Acquisitions at or below the simplified acquisition threshold; (2) Acquisitions in support of emergency, humanitarian or peacekeeping operations, or to facilitate defense against or recovery from nuclear, biological, chemical, or radiological attack; (3) Small business set-asides under FAR subpart 19.5, set asides offered and accepted into the 8(a) Program under FAR subpart 19.8, or set-asides under the HUBZone Program (see FAR 19.1305(c)), the VA Small Business Program (see VAAR 819), or the Women-Owned Small Business Program (see FAR 19.1505(d)); (4) Acquisitions of basic or applied research or development, as specified in FAR 35.016(a), that use a broad agency announcement; or (5) Acquisitions of architect-engineer services (see FAR 36.601-2). (b) The applicability of an exception in paragraph (a) of this section does not eliminate the need for the contracting officer to seek maximum practicable competition and to ensure that the price is fair and reasonable. 0 13. Section 815.370-5 is added to read as follows: 815.370-5 Solicitation provision. Use the provision at 852.215-72, Notice of intent to re-solicit, in competitive solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items that will be solicited for fewer than 30 days, unless an exception at 815.370-4 applies. Subpart 815.4--[Removed and Reserved] 0 14. Subpart 815.4 is removed and reserved. Subpart 815.6--[Removed and Reserved] 0 15. Subpart 815.6 is removed and reserved. PART 816--TYPES OF CONTRACTS 0 16. The authority citation for part 816 is revised to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304. Subpart 816.5--Indefinite-Delivery Contracts 0 17. Section 816.506-70 is added to read as follows: 816.506-70 Requirements--supplement for mortuary services. Insert the clause 852.216-76, Requirements--Supplement for Mortuary Services, in contracts for mortuary services containing FAR clause 52.216-21, Requirements. The contracting officer shall insert activities authorized to place orders in paragraph (e) of the clause. PART 837--SERVICE CONTRACTING 0 18. The authority citation for part 837 is revised to read as follows: Authority: Public Law 101-647; 20 U.S.C. 7181-7183; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301- 1.304. Subpart 837.1--Service Contracts--General 837.103 [Removed] 0 19. Section 837.103 is removed. 837.110 [Removed] 0 20. Section 837.110 is removed. 0 21. Section 837.110-70 is revised to read as follows: 837.110-70 VA solicitation provisions and contract clauses. (a) Contracting officers shall include the clause at 852.237-74, Nondiscrimination in Service Delivery, in all solicitations and contracts covering services provided to eligible beneficiaries. (b) The contracting officer shall insert the clause at 852.237-75, Key Personnel, in solicitations and contracts when the contracting officer will require the contractor to designate contractor key personnel. Subpart 837.2--[Removed and Reserved] 0 22. Subpart 837.2 is removed and reserved. 837.203 [Removed] 0 23. Section 837.203 is removed. Subpart 837.4--Nonpersonal Health Care Services 0 24. Section 837.403 is revised to read as follows: 837.403-70 VA contract clauses. (a) The contracting officer shall insert the clause at 852.237-70, Indemnification and Medical Liability Insurance, in lieu of FAR clause 52.237-7, in solicitations and contracts for nonpersonal health-care services, including contracts awarded under the authority of 38 U.S.C. 7409, 38 U.S.C. 8151-8153, and part 873. The contracting officer may include the clause in bilateral purchase orders for nonpersonal health- care services awarded under the procedures in FAR part 13 and part 813. (b) The contracting officer shall insert the clause at 852.237-71, Nonsmoking Policy for Children's Services, in solicitations, contracts, and orders that involve health or daycare services that are provided to children under the age of 18 on a routine or regular basis pursuant to the Nonsmoking Policy for Children's Services (20 U.S.C. 6081-6084). (c) The contracting officer shall insert the clause at 852.237-72, Crime Control Act--Reporting of Child Abuse, in solicitations, contracts, and orders that require performance on Federal land or in a federally operated (or contracted) facility and involve the professions/activities performed by persons specified in the Crime Control Act of 1990 (42 U.S.C. 13031) including, but not limited to, teachers, social workers, physicians, nurses, dentists, health care practitioners, optometrists, psychologists, emergency medical technicians, alcohol or drug treatment personnel, child care workers and administrators, emergency medical technicians and ambulance drivers. (d) The contracting officer shall insert the clause at 852.237-73, Crime Control Act--Requirement for Background Checks, in solicitations, contracts, and orders that involve providing child care services to children under the age of 18, including social services, health and mental health care, child- (day) care, education (whether or not directly involved in teaching), and rehabilitative programs covered under the Crime Control Act of 1990 (42 U.S.C. 13041). Subpart 837.70--Mortuary Services 0 25. Section 837.7000 is added to read as follows: 837.7000 Scope. This subpart applies to mortuary (funeral and burial) services for beneficiaries of VA as provided in 38 U.S.C. 2302, 2303, and 2308 when it is determined that a contract would be the most efficient and effective method. Contract payment terms for use of the purchase card as a method of payment should also be considered. 0 26. Section 837.7001 is revised to read as follows: [[Page 45381]] 837.7001 Solicitation provisions and contract clauses. (a) The contracting officer shall insert the basic or the alternate of the provision at 852.237-76, Award to Single Offeror, in solicitations and contracts for mortuary services as follows: (1) Insert the provision in all sealed bid solicitations for mortuary services; and (2) Insert the basic provision with its alternate I in all negotiated solicitations for mortuary services. (b) The contracting officer shall insert in addition to FAR 52.216- 21 Requirements, ALT VI, the following VA clauses in all mortuary service solicitations and contracts: (1) 852.237-77, Area of Performance. (2) 852.237-78, Performance and Delivery. (3) 852.237-79, Subcontracting. (4) 852.237-80, Health Department and Transport Permits. (c) See also 816.506-70 and 849.504-70 for additional clauses for use in contracts for mortuary services. 837.7002 [Removed] 0 27. Section 837.7002 is removed. 837.7003 [Removed] 0 28. Section 837.7003 is removed. 837.7004 [Removed] 0 29. Section 837.7004 is removed. 837.7005 [Removed] 0 30. Section 837.7005 is removed. PART 849--TERMINATION OF CONTRACTS 0 31. The authority citation for part 849 is revised to read as follows: Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304. 0 32. Subpart 849.5 is added to read as follows: Subpart 849.5--Contract Termination Clauses 849.504 Termination of fixed-price contracts for default. 849.504-70 Termination of mortuary services. Use the clause at 852.249-70, Termination for Default--Supplement for Mortuary Services, in all solicitations and contracts for mortuary services. This clause is to be used with FAR clause 52.249-8, Default (Fixed-Price Supply and Service). PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 33. The authority citation for part 852 is revised to read as follows: Authority: Public Law 101-647; 20 U.S.C. 7181-7183; 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1303; 41 U.S.C 1702; and 48 CFR 1.301-1.304. Subpart 852.2--Texts of Provisions and Clauses 0 34. Section 852.215-70 is revised to read as follows: 852.215-70 Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors. As prescribed in 815.304-71(a), insert the following provision: Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors (Date) (a) In an effort to achieve socioeconomic small business goals, VA shall evaluate offerors based on their service-disabled veteran- owned or veteran-owned small business status and their proposed use of eligible service-disabled veteran-owned small businesses and veteran-owned small businesses as subcontractors. (b) Eligible service-disabled veteran-owned offerors will receive full credit, and offerors qualifying as veteran-owned small businesses will receive partial credit for the Service-Disabled Veteran-Owned and Veteran-owned Small Business Status evaluation factor. To receive credit, an offeror must be registered and verified in Vendor Information Pages (VIP) database. (c) Non-veteran offerors proposing to use service-disabled veteran-owned small businesses or veteran-owned small businesses as subcontractors will receive some consideration under this evaluation factor. Offerors must state in their proposals the names of the SDVOSBs and VOSBs with whom they intend to subcontract and provide a brief description of the proposed subcontracts and the approximate dollar values of the proposed subcontracts. In addition, the proposed subcontractors must be registered and verified in the VIP database. (d) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. This includes the debarment of all principals in the business. (End of provision) 0 35. Section 85.215-71 is revised to read as follows: 852.215-71 Evaluation Factor Commitments. As prescribed in 815.304-71(b), insert the following clause: Evaluation Factor Commitments (Date) (a) The offeror agrees, if awarded a contract, to use the service-disabled veteran-owned small businesses or veteran-owned small businesses proposed as subcontractors in accordance with 852.215-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors, or to substitute one or more service- disabled veteran-owned small businesses or veteran-owned small businesses for subcontract work of the same or similar value. (b) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. This includes the debarment of all principals in the business. (End of clause) 0 36. Section 852.215-72 is added to read as follows: 852.215-72 Notice of Intent to Re-Solicit. As prescribed at 815.370-5, use the following provision: Notice of Intent To Re-Solicit (Date) This solicitation provides offerors fewer than 30 days to submit proposals. In the event that only one offer is received in response to this solicitation, the Contracting Officer may cancel the solicitation and re-solicit for an additional period of at least 30 days in accordance with 815.370-2. (End of provision) 0 37. Section 852.216-71 is amended by revising the section heading and clause heading to read as follows: 852.216-71 Economic Price Adjustment of Contract Price(s) Based on a Price Index. * * * * * Economic Price Adjustment of Contract Price(s) Based on a Price Index (Mar 2018) * * * * * 0 38. Section 852.216-72 is amended by revising the section heading and clause heading to read as follows: 852.216-72 Proportional Economic Price Adjustment of Contract Price(s) Based on a Price Index. * * * * * Proportional Economic Price Adjustment of Contract Price(s) Based on a Price Index (Mar 2018) * * * * * 0 39. Section 852.216-73 is amended by revising the section heading and clause heading to read as follows: 852.216-73 Economic Price Adjustment--State Nursing Home Care for Veterans. * * * * * [[Page 45382]] Economic Price Adjustment--State Nursing Home Care for Veterans (Mar 2018) * * * * * 0 40. Section 852.216-74 is amended by revising the section heading and clause heading to read as follows: 852.216-74 Economic Price Adjustment--Medicaid Labor Rates. * * * * * Economic Price Adjustment--Medicaid Labor Rates (Mar 2018) * * * * * 0 41. Section 852.216-75 is amended by revising the section heading and clause heading to read as follows: 852.216-75 Economic Price Adjustment--Fuel Surcharge. * * * * * Economic Price Adjustment--Fuel Surcharge (Mar 2018) * * * * * 0 42. Section 852.216-76 is added to read as follows: 852.216-76 Requirements--Supplement for Mortuary Services. As prescribed in 816.506-70, insert the following clause: Requirements--Supplement for Mortuary Services (Date) (a) Except as provided in paragraphs (c) and (d) of this clause, the Government will order from the Contractor all of its requirements in the area of performance for the supplies and services listed in the schedule of this contract. (b) Each order will be issued as a delivery order and will list-- (1) The supplies or services being ordered; (2) The quantities to be furnished; (3) Delivery or performance dates; (4) Place of delivery or performance; (5) Packing and shipping instructions; (6) The address to send invoices; and (7) The funds from which payment will be made. (c) The Government may elect not to order supplies and services under this contract in instances where the body is removed from the area for medical, scientific, or other reason. (d) In an epidemic or other emergency, the contracting activity may obtain services beyond the capacity of the Contractor's facilities from other sources. (e) Contracting Officers of the following activities may order services and supplies under this contract-- ----------------------------------------------------------------------- ----------------------------------------------------------------------- (End of clause) 0 43. Section 852.228-71 is amended by revising the section heading and clause heading to read as follows: 852.228-71 Indemnification and Insurance. * * * * * Indemnification and Insurance (Mar 2018) * * * * * 0 44. Section 852.228-73 is amended by revising the section heading and clause heading to read as follows: 852.228-73 Indemnification of Contractor--Hazardous Research Projects. * * * * * Indemnification of Contractor--Hazardous Research Projects (Mar 2018) * * * * * 852.237-70 [Removed] 0 45. Section 852.237-70 is removed. 852.237-7 [Redesignated as 852.237-70 and Amended] 0 46. Section 852.237-7 is redesignated as section 852.237-70 and the newly redesignated section is revised to read as follows: 852.237-70 Indemnification and Medical Liability Insurance. As prescribed in 837.403-70(a), insert the following clause: Indemnification and Medical Liability Insurance (Date) (a) It is expressly agreed and understood that this is a non- personal services contract, as defined in Federal Acquisition Regulation (FAR) 37.101, under which the professional services rendered by the Contractor or its health-care providers are rendered in its capacity as an independent contractor. The Government may evaluate the quality of professional and administrative services provided but retains no control over professional aspects of the services rendered including, by example, the Contractor's or its health-care providers' professional medical judgment, diagnosis, or specific medical treatments. The Contractor and its health-care providers shall be liable for their liability-producing acts or omissions. The Contractor shall maintain or require all health-care providers performing under this contract to maintain, during the term of this contract, professional liability insurance issued by a responsible insurance carrier of not less than the following amount(s) per specialty per occurrence: [Contracting Officer's Note: Insert the dollar amount value(s) of standard coverage(s) prevailing within the local community as to the specific medical specialty, or specialties, concerned, or such higher amount as the Contracting Officer deems necessary to protect the Government's interests.] However, if the Contractor is an entity or a subdivision of a State that either provides for self-insurance or limits the liability or the amount of insurance purchased by State entities, then the insurance requirement of this contract shall be fulfilled by incorporating the provisions of the applicable State law. (b) An apparently successful offeror, upon request of the Contracting Officer, shall, prior to contract award, furnish evidence of the insurability of the offeror and/or of all health- care providers who will perform under this contract. The submission shall provide evidence of insurability concerning the medical liability insurance required by paragraph (a) of this clause or the provisions of State law as to self-insurance, or limitations on liability or insurance. (c) The Contractor shall, prior to commencement of services under the contract, provide to the Contracting Officer Certificates of Insurance or insurance policies evidencing the required insurance coverage and an endorsement stating that any cancellation or material change adversely affecting the Government's interest shall not be effective until 30 days after the insurer or the Contractor gives written notice to the Contracting Officer. Certificates or policies shall be provided for the Contractor and/or each health- care provider who will perform under this contract. (d) The Contractor shall notify the Contracting Officer within 5 days of becoming aware of a change in insurance providers during the performance period of this contract for all health-care providers performing under this contract. The notification shall provide evidence that the Contractor and/or health-care providers will meet all the requirements of this clause, including those concerning liability insurance and endorsements. These requirements may be met either under the new policy, or a combination of old and new policies, if applicable. (e) The Contractor shall insert the substance of this clause, including this paragraph (e), in all subcontracts for health-care services under this contract. The Contractor shall be responsible for compliance by any subcontractor or lower-tier subcontractor with the provisions set forth in paragraph (a) of this clause. At least 5 days before the commencement of work by any subcontractor, the Contractor shall furnish to the Contracting Officer evidence of such insurance. (End of clause) 0 47. Section 852.237-71 is added to read as follows: 852.237-71 Nonsmoking Policy for Children's Services. As prescribed in 837.403-70(b), insert the following clause: Nonsmoking Policy for Children's Services (Date) (a) Smoking in facilities where certain federally funded children's services are provided shall be prohibited. The Pro- Children Act of 2001 (20 U.S.C. 7181-7183) prohibits smoking within any indoor facility (or portion thereof), whether owned, leased, or contracted for, that is used for the routine or regular provision of health or day care services that are provided to children under the age of 18. The statutory prohibition also applies to indoor facilities that are constructed, operated, or maintained with Federal funds. [[Page 45383]] (b) By acceptance of this contract or order, the Contractor agrees to comply with the requirements of the Act. The Act also applies to all subcontracts awarded under this contract for the specified children's services. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act. Failure to comply with the Act may result in the imposition of a civil monetary penalty in an amount not to exceed $1,000 for each violation and/or the imposition of an administrative compliance order on the responsible entity. Each day a violation continues constitutes a separate violation. (End of clause) 0 48. Section 852.237-72 is added to read as follows: 852.237-72 Crime Control Act--Reporting of Child Abuse. As prescribed in 837.403-70(c), insert the following clause: Crime Control Act--Reporting of Child Abuse (Date) (a) Public Law 101-647, also known as the Crime Control Act of 1990 (Act), imposes responsibilities on certain individuals who, while engaged in a professional capacity or activity, as defined in the Act, on Federal land or in a federally-operated (or contracted) facility, learn of facts that give the individual reason to suspect that a child has suffered an incident of child abuse. (b) The Contractor shall comply with the requirements of the Act. The Act also applies to all applicable subcontracts awarded under this contract. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act. (End of clause) 0 49. Section 852.237-73 is added to read as follows: 852.237-73 Crime Control Act--Requirement for Background Checks. As prescribed in 837.403-70(d), insert the following clause: Crime Control Act of 1990--Requirement for Background Checks (Date) (a) Public Law 101-647, also known as the Crime Control Act of 1990 (Act), requires that all individuals involved with the provision of child care services, as defined in the Act, to children under the age of 18 undergo a criminal background check. (b) The Contracting Officer will provide the necessary information to the Contractor regarding the process for obtaining the background check. The Contractor may hire a staff person provisionally prior to the completion of a background check, if at all times prior to the receipt of the background check during which children are in the care of the newly-hired person, the person is within the sight and under the supervision of a previously investigated staff person. (c) The Contractor shall comply with the requirements of the Act. The Act also applies to all applicable subcontracts awarded under the contract. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act. (End of clause) 0 50. Section 852.237-74 is added to read as follows: 852.237-74 Non-Discrimination in Service Delivery. As prescribed in 837.110-70(a), the Contracting Officer shall insert the following clause in solicitations and contracts: Non-Discrimination in Service Delivery (Date) It is the policy of the Department of Veterans Affairs that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of VA programs and services based on non-merit factors such as race, color, national origin, religion, sex, gender identity, sexual orientation, or disability (physical or mental). By acceptance of this contract, the contractor agrees to comply with this policy in supporting the program and in performing the services called for under this contract. The contractor shall include this clause in all sub-contracts awarded under this contract for supporting or performing the specified program and services. Accordingly, the contractor shall ensure that each of its employees, and any sub-contractor staff, is made aware of, understands, and complies with this policy. (End of clause) 0 51. Section 852.237-75 is added to read as follows: 852.237-75 Key Personnel. As prescribed in 837.110-70(b), insert the following clause: Key Personnel (Date) The key personnel specified in this contract are considered to be essential to work performance. At least 30 days prior to the contractor voluntarily diverting any of the specified individuals to other programs or contracts the Contractor shall notify the Contracting Officer and shall submit a justification for the diversion or replacement and a request to replace the individual. The request must identify the proposed replacement and provide an explanation of how the replacement's skills, experience, and credentials meet or exceed the requirements of the contract. If the employee of the contractor is terminated for cause or separates from the contractor voluntarily with less than thirty days notice, the Contractor shall provide the maximum notice practicable under the circumstances. The Contractor shall not divert, replace, or announce any such change to key personnel without the written consent of the Contracting Officer. The contract will be modified to add or delete key personnel as necessary to reflect the agreement of the parties. (End of clause) 0 52. Section 852.237-76 is added to read as follows: 852.237-76 Award to Single Offeror. As prescribed in 837.7001(a)(1), insert the following provision: Award to Single Offeror (Date) (a) Award shall be made to a single offeror. (b) Offerors shall include unit prices for each item. Failure to include unit prices for each item will be cause for rejection of the entire offer. (c) The Government will evaluate offers on the basis of the estimated quantities shown. (d) Award will be made to that responsive, responsible offeror whose total aggregate offer is the lowest price to the Government. (End of provision) Alternate I (DATE). As prescribed in 837.7001(a)(2), insert the following paragraph (d) in lieu of paragraph (d) of the basic provision: (d) Award will be made to that responsive, responsible offeror whose total aggregate offer is in the best interest of the Government. 0 53. Section 852.237-77 is added to read as follows: 852.237-77 Area of Performance. As prescribed in 837.7001(b)(1), insert the following clause: Area of Performance (Date) (a) The area of performance is as specified in the contract. (b) The Contractor shall take possession of the remains at the place where they are located, transport them to the Contractor's place of preparation, and later transport them to a place designated by the Contracting Officer. (c) The Contractor will not be reimbursed for transportation when both the place where the remains were located and the delivery point are within the area of performance. (d) If remains are located outside the area of performance, the Contracting Officer may place an order with the Contractor under this contract or may obtain the services elsewhere. If the Contracting Officer requires the Contractor to transport the remains into the area of performance, the Contractor shall be paid the amount per mile in the schedule for the number of miles required to transport the remains by a reasonable route from the point where located to the boundary of the area of performance. (e) The Contracting Officer may require the Contractor to deliver remains to any point within 100 miles of the area of performance. In this case, the Contractor shall be paid the amount per mile in the schedule for the number of miles required to transport the remains by a reasonable route from the boundary of the area of performance to the delivery point. [[Page 45384]] (End of clause) 0 54. Section 852.237-78 is added to read as follows: 852.237-78 Performance and Delivery. As prescribed in 837.7001(b)(2), insert the following clause: Performance and Delivery (Date) (a) The Contractor shall furnish the material ordered and perform the services specified as promptly as possible, but not later than 36 hours after receiving notification to remove the remains, excluding the time necessary for the Government to inspect and check results of preparation. (b) The Government may, at no additional charge, require the Contractor to hold the remains for an additional period not to exceed 72 hours from the time the remains are casketed and final inspection is completed. (End of clause) 0 55. Section 852.237-79 is added to read as follows: 852.237-79 Subcontracting. As prescribed in 837.7001(b)(3), insert the following clause: Subcontracting (Date) The Contractor shall not subcontract any work under this contract without the Contracting Officer's written approval. This clause does not apply to contracts of employment between the Contractor and its personnel. (End of clause) 0 56. Section 852.237-80 is added to read as follows: 852.237-80 Health Department and Transport Permits. As prescribed in 837.7001(b)(4), insert the following clause: Health Department and Transport Permits (Date) The Contractor shall meet all State and local licensing requirements and obtain and furnish all necessary health department and shipping permits at no additional cost to the Government. The Contractor shall ensure that all necessary health department permits are in order for disposition of the remains. (End of clause) 0 57. Section 852.249-70 is added to read as follows: 852.249-70 Termination for Default--Supplement for Mortuary Services. As prescribed in 849.504-70, insert the following clause: Termination for Default--Supplement for Mortuary Services (Date) The clause entitled ``Default'' in FAR 52.249-8, is supplemented as follows: The Contracting Officer may terminate this contract for default by written notice without the ten-day notice required by paragraph (a)(2) of the Default clause if-- (a) The Contractor, through circumstances reasonably within its control or that of its employees, performs any act under or in connection with this contract, or fails in the performance of any service under this contract and the act or failures may reasonably be considered to reflect discredit upon the Department of Veteran Affairs in fulfilling its responsibility for proper care of remains; (b) The Contractor, or its employees, solicits relatives or friends of the deceased to purchase supplies or services not under this contract. (The Contractor may furnish supplies or arrange for services not under this contract, only if representatives of the deceased voluntarily request, select, and pay for them.); (c) The services or any part of the services are performed by anyone other than the Contractor or the Contractor's employees without the written authorization of the Contracting Officer; (d) The Contractor refuses to perform the services required for any particular remains; or (e) The Contractor mentions or otherwise uses this contract in its advertising in any way. (End of clause) 852.271-70 [Removed and Reserved] 0 58. Section 852.271-70 is removed and reserved. PART 871--LOAN GUARANTY AND VOCATIONAL REHABILITATION AND EMPLOYMENT PROGRAMS 0 59. The authority citation for part 871 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 871.2--Vocational Rehabilitation and Employment Service 0 60. Section 871.212 is revised to read as follows: 871.212 Contract clauses. (a) Contracting officers shall use the following clauses, as appropriate, in solicitations and contracts for vocational rehabilitation and employment services as they pertain to training and rehabilitation services and contracts for counseling services: (1) 852.271-72 Time Spent by Counselee in Counseling Process. (2) 852.271-73 Use and Publication of Counseling Results. (3) 852.271-74 Inspection. (4) 852.271-75 Extension of Contract Period. (b) See 837.110-70(a) for clause 852.237-74 Non-discrimination in Service Delivery. [FR Doc. 2018-18310 Filed 9-6-18; 8:45 am] BILLING CODE 8320-01-P
![Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules 45379
anticipated costs and benefits before PART 815—CONTRACTING BY 815.370–1 Policy.
issuing any rule that may result in the NEGOTIATION It is VA policy, if only one offer is
expenditure by State, local, and tribal received in response to a competitive
Governments, in the aggregate, or by the ■ 3. The authority citation for part 815 solicitation, to—
private sector, of $100 million or more is revised to read as follows: (a) Take action to promote
(adjusted annually for inflation) in any Authority: 38 U.S.C. 8127 and 8128; 40 competition (see 815.370–2); and
one year. This proposed rule will have U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. (b) Ensure that the price is fair and
no such effect on State, local, and tribal 1702 and 48 CFR 1.301–1.304. reasonable (see 815.370–3) and to
Governments or on the private sector. comply with the statutory requirement
Subpart 815.3—Source Selection for certified cost or pricing data (see
List of Subjects
FAR 15.403–4).
815.303 [Removed]
48 CFR Part 801 ■ 10. Section 815.370–2 is added to read
■ 4. Section 815.303 is removed. as follows:
Administrative practice and
procedure. 815.304 [Removed] 815.370–2 Promote competition.
48 CFR Parts 815, 816, 837, and 849 ■ 5. Section 815.304 is removed. Except as provided in 815.370–4, if
■ 6. Section 815.304–70 is revised to
only one offer is received when
Government procurement.
read as follows: competitive procedures were used and
48 CFR Part 852 the solicitation allowed fewer than 30
Government procurement, Reporting 815.304–70 Evaluation factor days for receipt of proposals, the
and recordkeeping requirements. commitments. contracting officer should—
VA contracting officers shall— (a) Consult with the requiring activity
48 CFR Part 871 as to whether the requirements
(a) Include the provision at 852.215– document should be revised in order to
Government procurement, Loan 70, Service-Disabled Veteran Owned
programs—social programs, Loan promote more competition (see FAR
Small Business (SDVOSB) and Veteran 6.502(b) and 11.002); and
programs—veterans, Reporting and Owned Small Business (VOSB)
recordkeeping requirements, Vocational (b) Consider re-soliciting, allowing an
Evaluation Factors, in negotiated additional period of at least 30 days for
rehabilitation. solicitations giving preference to offers receipt of proposals.
Signing Authority received from VOSBs and additional ■ 11. Section 815.370–3 is added to read
The Secretary of Veterans Affairs preference to offers received from as follows:
approved this document and authorized SDVOSBs;
(b) Use past performance in meeting 815.370–3 Fair and reasonable price.
the undersigned to sign and submit the
document to the Office of the Federal SDVOSB subcontracting goals as a non- (a) If there was ‘‘reasonable
Register for publication electronically as price evaluation factor in making award expectation that two or more offerors,
an official document of the Department determination; and competing independently, would
of Veterans Affairs. Robert L. Wilkie, (c) Use the proposed inclusion of submit priced offers’’ but only one offer
Secretary, Department of Veterans SDVOSBs or VOSBs as subcontractors is received, this circumstance does not
Affairs, approved this document on as an evaluation factor when constitute adequate price competition
August 20, 2018, for publication. competitively negotiating the award of unless an official at a level above the
contracts or task or delivery orders. contracting officer approves the
Dated: August 21, 2018.
determination that the price is
Consuela Benjamin, ■ 7. Section 815.340–71 is revised to
reasonable (see FAR 15.403–1(c)(1)(ii)).
Regulations Development Coordinator, Office read as follows: (b) Except as provided in 815.370–
of Regulation Policy & Management, Office 4(a), if only one offer is received when
815.304–71 Solicitation provision and
of the Secretary, Department of Veterans competitive procedures were used and
clause.
Affairs.
the solicitation allowed at least 30 days
For the reasons set out in the (a) The contracting officer shall insert
for receipt of proposals (unless the 30-
preamble, VA proposes to amend 48 the provision at 852.215–70, Service-
day requirement is not applicable in
CFR parts 801, 815, 816, 837, 849, 852 Disabled Veteran-Owned Small
accordance with 815.370–4(a)(3), the
and 871 as follows: Business (SDVOSB) and Veteran-Owned
contracting officer shall—
Small Business (VOSB) Evaluation
(1) Determine through cost or price
PART 801—DEPARTMENT OF Factors, in competitively negotiated
analysis that the offered price is fair and
VETERANS AFFAIRS ACQUISITION solicitations that are not set aside for
reasonable and that adequate price
REGULATION SYSTEM SDVOSBs or VOSBs.
competition exists (with approval of the
(b) The contracting officer shall insert determination at a level above the
■ 1. The authority citation for part 801 the clause at 852.215–71, Evaluation
continues to read as follows: contracting officer) or another exception
Factor Commitments, in solicitations to the requirement for certified cost or
Authority: 40 U.S.C. 121(c); 41 U.S.C. and contracts that include VAAR pricing data applies (see FAR 15.403–
1121(c)(3); 41 U.S.C. 1702; and 48 CFR provision 852.215–70, Service-Disabled
1.301–1.304.
1(c) and 15.403–4). In these
Veteran-Owned Small Business circumstances, no further cost or pricing
daltland on DSKBBV9HB2PROD with PROPOSALS
(SDVOSB) and Veteran-Owned Small data is required; or
Subpart 801.1—Purpose, Authority,
Business (VOSB) Evaluation Factors. (2)(i) Obtain from the offeror cost or
Issuance
■ 8. Section 815.370 is added to read as pricing data necessary to determine a
801.106 [Amended] follows: fair and reasonable price and comply
■ 2. Amend the table in section 801.106 with the requirement for certified cost
815.370 Only one offer.
by removing clause number 852.237–7 or pricing data at FAR 15.403–4. For
and adding in its place clause number ■ 9. Section 815.370–1 is added to read acquisitions that exceed the cost or
852.237–70. as follows: pricing data threshold, if no exception
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at FAR 15.403–1(b) applies, the cost or Authority: 40 U.S.C. 121(c); 41 U.S.C. Indemnification and Medical Liability
pricing data shall be certified; and 1121(c)(3); 41 U.S.C. 1702; and 48 CFR Insurance, in lieu of FAR clause 52.237–
(ii) Enter into negotiations with the 1.301–1.304. 7, in solicitations and contracts for
offeror as necessary to establish a fair nonpersonal health-care services,
Subpart 816.5—Indefinite-Delivery
and reasonable price. The negotiated including contracts awarded under the
Contracts
price should not exceed the offered authority of 38 U.S.C. 7409, 38 U.S.C.
price. ■ 17. Section 816.506–70 is added to 8151–8153, and part 873. The
■ 12. Section 815.370–4 is added to read read as follows: contracting officer may include the
as follows: clause in bilateral purchase orders for
816.506–70 Requirements—supplement nonpersonal health-care services
815.370–4 Exceptions. for mortuary services.
awarded under the procedures in FAR
(a) The requirements at 815.370–2 do Insert the clause 852.216–76, part 13 and part 813.
not apply to— Requirements—Supplement for (b) The contracting officer shall insert
(1) Acquisitions at or below the Mortuary Services, in contracts for the clause at 852.237–71, Nonsmoking
simplified acquisition threshold; mortuary services containing FAR Policy for Children’s Services, in
(2) Acquisitions in support of clause 52.216–21, Requirements. The solicitations, contracts, and orders that
emergency, humanitarian or contracting officer shall insert activities involve health or daycare services that
peacekeeping operations, or to facilitate authorized to place orders in paragraph are provided to children under the age
defense against or recovery from (e) of the clause. of 18 on a routine or regular basis
nuclear, biological, chemical, or pursuant to the Nonsmoking Policy for
radiological attack; PART 837—SERVICE CONTRACTING
Children’s Services (20 U.S.C. 6081–
(3) Small business set-asides under ■ 18. The authority citation for part 837 6084).
FAR subpart 19.5, set asides offered and is revised to read as follows: (c) The contracting officer shall insert
accepted into the 8(a) Program under the clause at 852.237–72, Crime Control
Authority: Public Law 101–647; 20 U.S.C.
FAR subpart 19.8, or set-asides under 7181–7183; 40 U.S.C. 121(c); 41 U.S.C. Act—Reporting of Child Abuse, in
the HUBZone Program (see FAR 1121(c)(3); 41 U.S.C. 1702; and 48 CFR solicitations, contracts, and orders that
19.1305(c)), the VA Small Business 1.301–1.304. require performance on Federal land or
Program (see VAAR 819), or the in a federally operated (or contracted)
Women-Owned Small Business Program Subpart 837.1—Service Contracts— facility and involve the professions/
(see FAR 19.1505(d)); General activities performed by persons
(4) Acquisitions of basic or applied specified in the Crime Control Act of
837.103 [Removed]
research or development, as specified in 1990 (42 U.S.C. 13031) including, but
FAR 35.016(a), that use a broad agency ■ 19. Section 837.103 is removed. not limited to, teachers, social workers,
announcement; or 837.110 [Removed] physicians, nurses, dentists, health care
(5) Acquisitions of architect-engineer ■ 20. Section 837.110 is removed. practitioners, optometrists,
services (see FAR 36.601–2). ■ 21. Section 837.110–70 is revised to psychologists, emergency medical
(b) The applicability of an exception read as follows: technicians, alcohol or drug treatment
in paragraph (a) of this section does not personnel, child care workers and
eliminate the need for the contracting 837.110–70 VA solicitation provisions and administrators, emergency medical
officer to seek maximum practicable contract clauses. technicians and ambulance drivers.
competition and to ensure that the price (a) Contracting officers shall include (d) The contracting officer shall insert
is fair and reasonable. the clause at 852.237–74, the clause at 852.237–73, Crime Control
■ 13. Section 815.370–5 is added to read Nondiscrimination in Service Delivery, Act—Requirement for Background
as follows: in all solicitations and contracts Checks, in solicitations, contracts, and
covering services provided to eligible orders that involve providing child care
815.370–5 Solicitation provision. beneficiaries. services to children under the age of 18,
Use the provision at 852.215–72, (b) The contracting officer shall insert including social services, health and
Notice of intent to re-solicit, in the clause at 852.237–75, Key mental health care, child- (day) care,
competitive solicitations, including Personnel, in solicitations and contracts education (whether or not directly
solicitations using FAR part 12 when the contracting officer will require involved in teaching), and rehabilitative
procedures for the acquisition of the contractor to designate contractor programs covered under the Crime
commercial items that will be solicited key personnel. Control Act of 1990 (42 U.S.C. 13041).
for fewer than 30 days, unless an
exception at 815.370–4 applies. Subpart 837.2—[Removed and Subpart 837.70—Mortuary Services
Reserved]
Subpart 815.4—[Removed and ■ 25. Section 837.7000 is added to read
Reserved] ■ 22. Subpart 837.2 is removed and as follows:
reserved.
■ 14. Subpart 815.4 is removed and 837.7000 Scope.
reserved. 837.203 [Removed] This subpart applies to mortuary
■ 23. Section 837.203 is removed. (funeral and burial) services for
Subpart 815.6—[Removed and beneficiaries of VA as provided in 38
daltland on DSKBBV9HB2PROD with PROPOSALS
Reserved] Subpart 837.4—Nonpersonal Health U.S.C. 2302, 2303, and 2308 when it is
Care Services determined that a contract would be the
■ 15. Subpart 815.6 is removed and most efficient and effective method.
reserved. ■ 24. Section 837.403 is revised to read
as follows: Contract payment terms for use of the
PART 816—TYPES OF CONTRACTS purchase card as a method of payment
837.403–70 VA contract clauses. should also be considered.
■ 16. The authority citation for part 816 (a) The contracting officer shall insert ■ 26. Section 837.7001 is revised to read
is revised to read as follows: the clause at 852.237–70, as follows:
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837.7001 Solicitation provisions and PART 852—SOLICITATION Evaluation Factor Commitments (Date)
contract clauses. PROVISIONS AND CONTRACT (a) The offeror agrees, if awarded a
(a) The contracting officer shall insert CLAUSES contract, to use the service-disabled veteran-
the basic or the alternate of the owned small businesses or veteran-owned
■ 33. The authority citation for part 852 small businesses proposed as subcontractors
provision at 852.237–76, Award to
is revised to read as follows: in accordance with 852.215–70, Service-
Single Offeror, in solicitations and
contracts for mortuary services as Authority: Public Law 101–647; 20 U.S.C. Disabled Veteran-Owned and Veteran-Owned
follows: 7181–7183; 38 U.S.C. 8127–8128, and 8151– Small Business Evaluation Factors, or to
8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); substitute one or more service-disabled
(1) Insert the provision in all sealed 41 U.S.C. 1303; 41 U.S.C 1702; and 48 CFR veteran-owned small businesses or veteran-
bid solicitations for mortuary services; 1.301–1.304. owned small businesses for subcontract work
and of the same or similar value.
(2) Insert the basic provision with its Subpart 852.2—Texts of Provisions (b) Pursuant to 38 U.S.C. 8127(g), any
alternate I in all negotiated solicitations and Clauses business concern that is determined by VA
to have willfully and intentionally
for mortuary services. ■ 34. Section 852.215–70 is revised to misrepresented a company’s SDVOSB/VOSB
(b) The contracting officer shall insert read as follows: status is subject to debarment for a period of
in addition to FAR 52.216–21 not less than five years. This includes the
Requirements, ALT VI, the following 852.215–70 Service-Disabled Veteran- debarment of all principals in the business.
VA clauses in all mortuary service Owned and Veteran-Owned Small Business
Evaluation Factors. (End of clause)
solicitations and contracts:
As prescribed in 815.304–71(a), insert 36. Section 852.215–72 is added to
(1) 852.237–77, Area of Performance. ■
the following provision: read as follows:
(2) 852.237–78, Performance and
Delivery. Service-Disabled Veteran-Owned and
852.215–72 Notice of Intent to Re-Solicit.
(3) 852.237–79, Subcontracting. Veteran-Owned Small Business
Evaluation Factors (Date) As prescribed at 815.370–5, use the
(4) 852.237–80, Health Department following provision:
and Transport Permits. (a) In an effort to achieve socioeconomic
small business goals, VA shall evaluate Notice of Intent To Re-Solicit (Date)
(c) See also 816.506–70 and 849.504–
offerors based on their service-disabled
70 for additional clauses for use in veteran-owned or veteran-owned small This solicitation provides offerors fewer
contracts for mortuary services. business status and their proposed use of than 30 days to submit proposals. In the
eligible service-disabled veteran-owned small event that only one offer is received in
837.7002 [Removed] response to this solicitation, the Contracting
businesses and veteran-owned small
■ 27. Section 837.7002 is removed. businesses as subcontractors. Officer may cancel the solicitation and re-
(b) Eligible service-disabled veteran-owned solicit for an additional period of at least 30
837.7003 [Removed] offerors will receive full credit, and offerors days in accordance with 815.370–2.
■ 28. Section 837.7003 is removed. qualifying as veteran-owned small businesses
will receive partial credit for the Service- (End of provision)
837.7004 [Removed] Disabled Veteran-Owned and Veteran-owned ■ 37. Section 852.216–71 is amended by
Small Business Status evaluation factor. To
■ 29. Section 837.7004 is removed. revising the section heading and clause
receive credit, an offeror must be registered
and verified in Vendor Information Pages heading to read as follows:
837.7005 [Removed]
(VIP) database. 852.216–71 Economic Price Adjustment of
■ 30. Section 837.7005 is removed. (c) Non-veteran offerors proposing to use Contract Price(s) Based on a Price Index.
service-disabled veteran-owned small
PART 849—TERMINATION OF businesses or veteran-owned small * * * * *
CONTRACTS businesses as subcontractors will receive Economic Price Adjustment of Contract
some consideration under this evaluation
Price(s) Based on a Price Index (Mar
■ 31. The authority citation for part 849 factor. Offerors must state in their proposals
the names of the SDVOSBs and VOSBs with 2018)
is revised to read as follows:
whom they intend to subcontract and * * * * *
Authority: 40 U.S.C. 121(c); 41 U.S.C. provide a brief description of the proposed
1121(c)(3); 41 U.S.C. 1702; and 48 CFR ■ 38. Section 852.216–72 is amended by
subcontracts and the approximate dollar
1.301–1.304. values of the proposed subcontracts. In revising the section heading and clause
addition, the proposed subcontractors must heading to read as follows:
■ 32. Subpart 849.5 is added to read as
be registered and verified in the VIP
follows: database. 852.216–72 Proportional Economic Price
(d) Pursuant to 38 U.S.C. 8127(g), any Adjustment of Contract Price(s) Based on a
Subpart 849.5—Contract Termination business concern that is determined by VA Price Index.
Clauses to have willfully and intentionally * * * * *
849.504 Termination of fixed-price misrepresented a company’s SDVOSB/VOSB
status is subject to debarment for a period of Proportional Economic Price
contracts for default. Adjustment of Contract Price(s) Based
not less than five years. This includes the
849.504–70 Termination of mortuary debarment of all principals in the business. on a Price Index (Mar 2018)
daltland on DSKBBV9HB2PROD with PROPOSALS
services. * * * * *
(End of provision)
Use the clause at 852.249–70, ■ 35. Section 85.215–71 is revised to ■ 39. Section 852.216–73 is amended by
Termination for Default—Supplement read as follows: revising the section heading and clause
for Mortuary Services, in all heading to read as follows:
solicitations and contracts for mortuary 852.215–71 Evaluation Factor
services. This clause is to be used with Commitments. 852.216–73 Economic Price Adjustment—
FAR clause 52.249–8, Default (Fixed- As prescribed in 815.304–71(b), insert State Nursing Home Care for Veterans.
Price Supply and Service). the following clause: * * * * *
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![45382 Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules
Economic Price Adjustment—State 852.228–71 Indemnification and Insurance. (b) An apparently successful offeror, upon
Nursing Home Care for Veterans (Mar * * * * * request of the Contracting Officer, shall, prior
2018) to contract award, furnish evidence of the
Indemnification and Insurance (Mar insurability of the offeror and/or of all health-
* * * * * 2018) care providers who will perform under this
■ 40. Section 852.216–74 is amended by contract. The submission shall provide
* * * * * evidence of insurability concerning the
revising the section heading and clause ■ 44. Section 852.228–73 is amended by medical liability insurance required by
heading to read as follows: revising the section heading and clause paragraph (a) of this clause or the provisions
852.216–74 Economic Price Adjustment—
heading to read as follows: of State law as to self-insurance, or
limitations on liability or insurance.
Medicaid Labor Rates. 852.228–73 Indemnification of (c) The Contractor shall, prior to
* * * * * Contractor—Hazardous Research Projects. commencement of services under the
* * * * * contract, provide to the Contracting Officer
Economic Price Adjustment—Medicaid Certificates of Insurance or insurance policies
Labor Rates (Mar 2018) Indemnification of Contractor— evidencing the required insurance coverage
* * * * * Hazardous Research Projects (Mar and an endorsement stating that any
■ 41. Section 852.216–75 is amended by
2018) cancellation or material change adversely
affecting the Government’s interest shall not
revising the section heading and clause * * * * * be effective until 30 days after the insurer or
heading to read as follows: the Contractor gives written notice to the
852.237–70 [Removed]
Contracting Officer. Certificates or policies
852.216–75 Economic Price Adjustment— ■ 45. Section 852.237–70 is removed. shall be provided for the Contractor and/or
Fuel Surcharge. each health-care provider who will perform
852.237–7 [Redesignated as 852.237–70
* * * * * under this contract.
and Amended]
(d) The Contractor shall notify the
Economic Price Adjustment—Fuel ■ 46. Section 852.237–7 is redesignated Contracting Officer within 5 days of
Surcharge (Mar 2018) as section 852.237–70 and the newly becoming aware of a change in insurance
redesignated section is revised to read providers during the performance period of
* * * * * this contract for all health-care providers
as follows:
■ 42. Section 852.216–76 is added to performing under this contract. The
read as follows: 852.237–70 Indemnification and Medical notification shall provide evidence that the
Liability Insurance. Contractor and/or health-care providers will
852.216–76 Requirements—Supplement meet all the requirements of this clause,
As prescribed in 837.403–70(a), insert
for Mortuary Services. including those concerning liability
the following clause:
As prescribed in 816.506–70, insert insurance and endorsements. These
the following clause: Indemnification and Medical Liability requirements may be met either under the
Insurance (Date) new policy, or a combination of old and new
Requirements—Supplement for policies, if applicable.
(a) It is expressly agreed and understood (e) The Contractor shall insert the
Mortuary Services (Date)
that this is a non-personal services contract, substance of this clause, including this
(a) Except as provided in paragraphs (c) as defined in Federal Acquisition Regulation paragraph (e), in all subcontracts for health-
and (d) of this clause, the Government will (FAR) 37.101, under which the professional care services under this contract. The
order from the Contractor all of its services rendered by the Contractor or its Contractor shall be responsible for
requirements in the area of performance for health-care providers are rendered in its compliance by any subcontractor or lower-
the supplies and services listed in the capacity as an independent contractor. The tier subcontractor with the provisions set
schedule of this contract. Government may evaluate the quality of forth in paragraph (a) of this clause. At least
(b) Each order will be issued as a delivery professional and administrative services 5 days before the commencement of work by
order and will list— provided but retains no control over any subcontractor, the Contractor shall
(1) The supplies or services being ordered; professional aspects of the services rendered furnish to the Contracting Officer evidence of
(2) The quantities to be furnished; including, by example, the Contractor’s or its such insurance.
(3) Delivery or performance dates; health-care providers’ professional medical
(4) Place of delivery or performance; judgment, diagnosis, or specific medical (End of clause)
(5) Packing and shipping instructions; treatments. The Contractor and its health- ■ 47. Section 852.237–71 is added to
(6) The address to send invoices; and care providers shall be liable for their
read as follows:
(7) The funds from which payment will be liability-producing acts or omissions. The
made. Contractor shall maintain or require all 852.237–71 Nonsmoking Policy for
(c) The Government may elect not to order health-care providers performing under this Children’s Services.
supplies and services under this contract in contract to maintain, during the term of this
contract, professional liability insurance
As prescribed in 837.403–70(b), insert
instances where the body is removed from the following clause:
the area for medical, scientific, or other issued by a responsible insurance carrier of
reason. not less than the following amount(s) per Nonsmoking Policy for Children’s
(d) In an epidemic or other emergency, the specialty per occurrence: [Contracting
Services (Date)
contracting activity may obtain services Officer’s Note: Insert the dollar amount
beyond the capacity of the Contractor’s value(s) of standard coverage(s) prevailing (a) Smoking in facilities where certain
facilities from other sources. within the local community as to the specific federally funded children’s services are
(e) Contracting Officers of the following medical specialty, or specialties, concerned, provided shall be prohibited. The Pro-
activities may order services and supplies or such higher amount as the Contracting Children Act of 2001 (20 U.S.C. 7181–7183)
daltland on DSKBBV9HB2PROD with PROPOSALS
under this contract— Officer deems necessary to protect the prohibits smoking within any indoor facility
lllllllllllllllllllll Government’s interests.] However, if the (or portion thereof), whether owned, leased,
Contractor is an entity or a subdivision of a or contracted for, that is used for the routine
lllllllllllllllllllll State that either provides for self-insurance or regular provision of health or day care
or limits the liability or the amount of services that are provided to children under
(End of clause) insurance purchased by State entities, then the age of 18. The statutory prohibition also
■ 43. Section 852.228–71 is amended by the insurance requirement of this contract applies to indoor facilities that are
revising the section heading and clause shall be fulfilled by incorporating the constructed, operated, or maintained with
heading to read as follows: provisions of the applicable State law. Federal funds.
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![45384 Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules
(End of clause) the ten-day notice required by paragraph (b) See 837.110–70(a) for clause
■ 54. Section 852.237–78 is added to (a)(2) of the Default clause if— 852.237–74 Non-discrimination in
(a) The Contractor, through circumstances Service Delivery.
read as follows:
reasonably within its control or that of its
employees, performs any act under or in [FR Doc. 2018–18310 Filed 9–6–18; 8:45 am]
852.237–78 Performance and Delivery.
connection with this contract, or fails in the BILLING CODE 8320–01–P
As prescribed in 837.7001(b)(2), insert performance of any service under this
the following clause: contract and the act or failures may
Performance and Delivery (Date) reasonably be considered to reflect discredit DEPARTMENT OF VETERANS
upon the Department of Veteran Affairs in AFFAIRS
(a) The Contractor shall furnish the fulfilling its responsibility for proper care of
material ordered and perform the services remains; 48 CFR Parts 801, 825, 836, 842, 846,
specified as promptly as possible, but not (b) The Contractor, or its employees, 852 and 853
later than 36 hours after receiving solicits relatives or friends of the deceased to
notification to remove the remains, excluding purchase supplies or services not under this RIN 2900–AQ18
the time necessary for the Government to contract. (The Contractor may furnish
inspect and check results of preparation. supplies or arrange for services not under VA Acquisition Regulation:
(b) The Government may, at no additional this contract, only if representatives of the Construction and Architect-Engineer
charge, require the Contractor to hold the deceased voluntarily request, select, and pay Contracts
remains for an additional period not to for them.);
exceed 72 hours from the time the remains (c) The services or any part of the services AGENCY: Department of Veterans Affairs.
are casketed and final inspection is are performed by anyone other than the ACTION: Proposed rule.
completed. Contractor or the Contractor’s employees
without the written authorization of the SUMMARY: The Department of Veterans
(End of clause) Affairs (VA) is proposing to amend and
Contracting Officer;
■ 55. Section 852.237–79 is added to (d) The Contractor refuses to perform the update its VA Acquisition Regulation
read as follows: services required for any particular remains; (VAAR) in phased increments to revise
or or remove any policy superseded by
852.237–79 Subcontracting. (e) The Contractor mentions or otherwise changes in the Federal Acquisition
As prescribed in 837.7001(b)(3), insert uses this contract in its advertising in any Regulation (FAR), to remove procedural
the following clause: way.
guidance internal to VA into the VA
Subcontracting (Date) Acquisition Manual (VAAM), and to
(End of clause)
The Contractor shall not subcontract any incorporate any new agency specific
work under this contract without the 852.271–70 [Removed and Reserved] regulations or policies. These changes
Contracting Officer’s written approval. This seek to streamline and align the VAAR
■ 58. Section 852.271–70 is removed with the FAR and remove outdated and
clause does not apply to contracts of
employment between the Contractor and its and reserved. duplicative requirements and reduce
personnel. burden on contractors. The VAAM
PART 871—LOAN GUARANTY AND
(End of clause) VOCATIONAL REHABILITATION AND incorporates portions of the removed
EMPLOYMENT PROGRAMS VAAR as well as other internal agency
■ 56. Section 852.237–80 is added to
acquisition policy. VA will rewrite
read as follows:
■ 59. The authority citation for part 871 certain parts of the VAAR and VAAM,
852.237–80 Health Department and is revised to read as follows: and as VAAR parts are rewritten, will
Transport Permits. publish them in the Federal Register.
Authority: 40 U.S.C. 121(c); 41 U.S.C. VA will combine related topics, as
As prescribed in 837.7001(b)(4), insert 1121(c)(3); 41 U.S.C. 1702; and 48 CFR
the following clause: 1.301–1.304.
appropriate. In particular, this
rulemaking revises VAAR concerning
Health Department and Transport Construction and Architect-Engineer
Permits (Date) Subpart 871.2—Vocational
Rehabilitation and Employment Contracts, as well as affected parts
The Contractor shall meet all State and Service covering the Department of Veterans
local licensing requirements and obtain and Affairs Acquisition Regulations System,
furnish all necessary health department and ■ 60. Section 871.212 is revised to read Foreign Acquisition, Contract
shipping permits at no additional cost to the as follows: Administration and Audit Services,
Government. The Contractor shall ensure that Quality Assurance, Solicitation
all necessary health department permits are 871.212 Contract clauses. Provisions and Contract Clauses, and
in order for disposition of the remains.
(a) Contracting officers shall use the Forms.
(End of clause) following clauses, as appropriate, in DATES: Comments must be received on
■ 57. Section 852.249–70 is added to solicitations and contracts for vocational or before November 6, 2018 to be
read as follows: rehabilitation and employment services considered in the formulation of the
as they pertain to training and final rule.
852.249–70 Termination for Default— rehabilitation services and contracts for
Supplement for Mortuary Services. ADDRESSES: Written comments may be
counseling services: submitted through
As prescribed in 849.504–70, insert
daltland on DSKBBV9HB2PROD with PROPOSALS
the following clause: (1) 852.271–72 Time Spent by www.Regulations.gov; by mail or hand-
Counselee in Counseling Process. delivery to Director, Regulation Policy
Termination for Default—Supplement and Management (00REG), Department
(2) 852.271–73 Use and Publication
for Mortuary Services (Date) of Veterans Affairs, 810 Vermont
of Counseling Results.
The clause entitled ‘‘Default’’ in FAR Avenue NW, Room 1063B, Washington,
(3) 852.271–74 Inspection. DC 20420; or by fax to (202) 273–9026
52.249–8, is supplemented as follows:
The Contracting Officer may terminate this (4) 852.271–75 Extension of Contract (this is not a toll-free number).
contract for default by written notice without Period. Comments should indicate that they are
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Document Created: 2018-09-07 00:15:44
Document Modified: 2018-09-07 00:15:44
| 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 November 6, 2018 to be considered in the formulation of the final rule. | |
| Contact | Mr. Ricky L. Clark, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, (202) 632-5276. This is not a toll-free number. | |
| FR Citation | 83 FR 45374 | |
| RIN Number | 2900-AQ20 | |
| CFR Citation | 48
CFR
801 48 CFR 815 48 CFR 816 48 CFR 837 48 CFR 849 48 CFR 852 48 CFR 871 | |
| CFR Associated | Administrative Practice and Procedure; Government Procurement; Reporting and Recordkeeping Requirements; Loan Programs-Social Programs; Loan Programs-Veterans and Vocational Rehabilitation |
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