Rule2022-21541
VA Acquisition Regulation: Acquisition Planning; Required Sources of Supplies and Services; Market Research; and Small Business Programs
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 18, 2022
Effective
November 17, 2022
Issuing agencies
Veterans Affairs Department
Abstract
The Department of Veterans Affairs (VA) is issuing a final rule amending the VA Acquisition Regulation (VAAR). This rulemaking revises coverage concerning Acquisition Planning, Required Sources of Supplies and Services, Market Research, and Small Business Programs, as well as affected parts to include Definitions of Words and Terms, Simplified Acquisition Procedures, Contract Financing, Solicitation Provisions and Contract Clauses, and Forms.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 200 (Tuesday, October 18, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Rules and Regulations]
[Pages 62999-63015]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21541]
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 802, 807, 808, 810, 813, 819, 832, 852 and 853
RIN 2900-AR06
VA Acquisition Regulation: Acquisition Planning; Required Sources
of Supplies and Services; Market Research; and Small Business Programs
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) is issuing a final
rule amending the VA Acquisition Regulation (VAAR). This rulemaking
revises coverage concerning Acquisition Planning, Required Sources of
Supplies and Services, Market Research, and Small Business Programs, as
well as affected parts to include Definitions of Words and Terms,
Simplified Acquisition Procedures, Contract Financing, Solicitation
Provisions and Contract Clauses, and Forms.
DATES: Effective November 17, 2022.
FOR FURTHER INFORMATION CONTACT: Mr. Bogdan Vaga, Senior Procurement
Analyst, Procurement Policy and Warrant Management Services, 003A2A,
810 Vermont Avenue NW, Washington, DC 20420, (202) 894-0686. (This is
not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION:
Background
VA published a proposed rule in the Federal Register at 87 FR 13598
on March 9, 2022, to amend the VAAR to implement and supplement the
Federal Acquisition Regulation (FAR). VA provided a 60-day comment
period for the public to respond to the proposed rule and submit
comments. The public comment period closed on May 9, 2022. VA received
no public comments.
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.
The VAAR has been revised to add new policy or regulatory
requirements, to update existing policy, and to remove any redundant
guidance where it may exist in affected parts, and to place guidance
that is applicable only to VA's internal operating processes or
procedures in the VA Acquisition Manual (VAAM).
This rule adopts as a final rule the proposed rule published in the
Federal Register on March 9, 2022, except for one technical non-
substantive revision as described below.
Discussion and Analysis
Technical Non-Substantive Change to the Rule
This rule makes one non-substantive change to the rule to provide
clarity, eliminate confusion, and to ensure compliance with the Federal
Acquisition Regulation (FAR). Specifically, in section 819.7002,
Applicability, VA is revising the term ``commercial acquisitions'' as
used in the section to reflect ``commercial products or commercial
services'' in alignment with FAR final rule, Federal Acquisition
Regulation: Revision of Definition of ``Commercial Item'', RIN 9000-
AN76, effective December 6, 2021.
[[Page 63000]]
Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
the costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). E.O. 13563 (Improving Regulation and Regulatory Review)
emphasizes the importance of quantifying both costs and benefits,
reducing costs, harmonizing rules, and promoting flexibility. The
Office of Information and Regulatory Affairs has determined that this
rule is not a significant regulatory action under Executive Order
12866.
The Regulatory Impact Analysis associated with this rulemaking can
be found as a supporting document at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Paperwork Reduction Act
This final rule includes provisions constituting a revised
collection of information under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3521) that require approval by the Office of Management and
Budget (OMB). This rule also contains collections of information under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521) that are already approved by OMB. The collection of information
for 48 CFR 819.704-70, 852.219-70, and 853.219(b) is currently approved
by OMB and has been assigned OMB control number 2900-0741.
Separately, a revised collection of information associated with
this rulemaking is contained in 48 CFR 852.207-70, Report of Employment
Under Commercial Activities, under OMB control number 2900-0590. This
final rule removes one of the existing information collection
requirements associated with this action at 48 CFR 852.207-70 to
reflect the discontinuation of 852.207-70, as well as the related
prescriptions for the clause at 807.304-77 and 873.110, paragraph (f).
Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of
this rulemaking action to OMB for review and approval, including all
comments received on the proposed information collections and any
changes made in response to comments. There were no public comments
received on the proposed rule or on the collection of information. OMB
has reviewed and has not approved the revisions and removal at this
time. In accordance with 5 CFR part 1320, the revised information
collection is not approved at this time. OMB has up to 30 days to
approve the request after the final rule publishes.
If OMB does not approve the revised collection of information as
requested, VA will immediately take action to reinstate the information
collection or take such other action as is directed by OMB.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule is not expected
to have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (5
U.S.C. 601-612).
The overall impact of the final rule would be of benefit to small
businesses owned by Veterans or service-disabled Veterans as the VAAR
is being updated to remove extraneous procedural information that
applies only to VA's internal operating processes or procedures. VA
estimates no increased or decreased costs to small business entities.
This rulemaking clarifies VA's policy regarding the contracting order
of priority for Service-Disabled Veteran-Owned Small Businesses
(SDVOSBs) and Veteran-Owned Small Businesses (VOSBs) as a result of the
U.S. Supreme Court's decision in Kingdomware Technologies, Inc. vs. the
United States, July 25, 2018, (Kingdomware) only as it pertains to the
application of the VA Rule of Two in accordance with Public Law 109-461
as codified at 38 U.S.C. 8127-8128, and via the original final rule--VA
Acquisition Regulation: Supporting Veteran-Owned and Service-Disabled
Veteran-Owned Small Businesses--published in the Federal Register at 74
FR 64619, on December 9, 2009, and effective January 7, 2010.
This regulation seeks to simplify and streamline VA guidance
regarding its small business program. The impact on small business
overall is positive, as VA continues to implement its small business
policies in accordance with legislative mandates pertaining to the
Department of Veterans Affairs in 38 U.S.C. 8127-8128 to ensure that
that small business owned and controlled by Veterans receive a fair
share of contracting opportunities at the Department. VA's hierarchy of
contracting preferences, established by law, mandates VA Vendor
Information Pages (VIP)-listed SDVOSBs first, then VOSBs, prior to
other small business preferences. While consistent with VA's
legislation and mission to serve Veterans, this mandate necessarily
makes achievement of other small business goals more challenging that
fall in a statutorily based lower contracting order of priority, e.g.,
awards in the general small business category. Through renewed emphasis
on the program in 2016 post the U.S. Supreme Court decision in
Kingdomware Technologies, Inc., and through increased training and
revised implementing policy and procedures issued to VA contracting
officers, VA has successfully achieved specific SDVOSB, VOSB, and small
business goals for FY 2020 as discussed below.
This rulemaking does not change VA's overall policy regarding small
businesses, does not have an economic impact to individual businesses,
and there are no increased or decreased costs to small business
entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do
not apply. However, VA has prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601-612. The FRFA is summarized as follows:
a. Statement of the need for, and the objectives of, the rule. A
description of the reasons why action by VA is being considered.
Response: VA is issuing a final rule to implement updated
requirements to the Department of Veterans Affairs' (VA) policy and
procedures pertaining to 38 U.S.C. 8127-8128 (Pub. L. 109-461), known
as the Veterans First Contracting Program, as well as additional
legislative amendments and statutory changes to 38 U.S.C. 8127 as a
result of Public Law 116-155, the Department of Veterans Affairs
Contracting Preference Consistency Act of 2020, which had an effective
date of August 8, 2020, and Public Law 116-183, Protecting Business
Opportunities for Veterans Act of 2019, enacted October 30, 2020, which
were implemented in advance of this rulemaking through separate class
deviations. This final rule also makes other necessary updates to the
VAAR to bring current with the Federal Acquisition Regulation (FAR).
b. Statement of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis, a
statement of the assessment of the agency of such issues, and a
statement of any changes made to the rule as a result of such comments.
Response: There were no public comments received on the proposed
rule and accordingly no changes were made to the rule in response to
the initial regulatory flexibility analysis.
c. A description of and, where feasible, an estimate of the number
of
[[Page 63001]]
small entities to which the rule would apply.
Response: This rulemaking is not expected to 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.
To determine the number of potential affected small businesses and
other entities, VA examined the data in the Federal Procurement Data
System (FPDS) to estimate the number of small business entities that
will be affected by this rule. Based on preliminary data from Fiscal
Year 2021, there were 80,148 SDVOSB coded contract actions, and 143,452
coded contract actions to VOSBs. In addition to specific SDVOSB/VOSB
contract actions, in FY 2021 there were a total of 219,301 small
business contract actions in FPDS. Note: SDVOSBs may also be coded in
addition to the SDVOSB category as both a small business and VOSB
award. VA analysis indicates that in FY 2021 VA exceeded its goals for
SDVOSB, VOSB and small businesses. In FY 2020, VA exceeded--(1) its
SDVOSB goal of 15% with a 23.9% achievement; (2) its VOSB goal of 17%
with a 24.4% achievement; and (3) its overall small business goal of
28.45% with a 30.3% achievement, even during the midst of the declared
national emergency on COVID-19. Considering VA had to make critical and
urgent emergency procurements under other authorities, including sole
source, of Personal Protective Equipment (PPE) and other related
medical supplies and services in support of continuity of its core
mission to provide Veterans' healthcare and as part of its overarching
pandemic response in support of the declared national emergency, the VA
acquisition workforce worked diligently hand-in-hand with its program/
project offices to continue to comply with the requirements of 38
U.S.C. 8127-8127 in priority awards to SDVOSBs, then VOSBs. These table
below provides the referenced data and successful small business
program goal achievements in these categories.
Preliminary Fiscal Year 2021 Small Business Goaling Data
----------------------------------------------------------------------------------------------------------------
Total contract
Fiscal year 2021 dollars and Small business SDVOSB VOSB
actions
----------------------------------------------------------------------------------------------------------------
Goal................................ ................. 28.45% 15.0% 17.0%
Actual Performance.................. ................. 30.3% 23.9% 24.4%
Dollars awarded by VA............... $34,351,110,891 $10,307,742,213 $8,144,793,570 $8,365,441,281
Total Contract Awards............... 1,833,460 219,301 80,148 143,452
----------------------------------------------------------------------------------------------------------------
Source: Federal Procurement Data System. Dataset downloaded on December 9, 2021.
This rule should help small businesses continue to receive a fair
share of VA contracting dollars. VA exceeded its small business goal of
28.45% in Fiscal Year 2021, achieving 30.3%, valued at $10,307,742,213,
while awards to SDVOSBs were valued at $8,144,793,570.
d. A description of the projected reporting, recordkeeping, and
other compliance requirements of the rule, including an estimate of the
classes of small entities which would be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record.
Response: This rule does not impose any new reporting,
recordkeeping or other compliance requirements for small entities.
e. A description of any significant alternatives to the rule which
accomplish the stated objectives of applicable statutes and which
minimize any significant economic impact of the rule on small entities.
Response: There are no known significant alternative approaches to
the final rule. VA is unable to identify any significant alternatives
that would accomplish the requirements of this rule. Through the
proposed rule, the public had an opportunity to provide public comment
prior to publication of a final rule. VA considered initially issuing a
complete revision to the VAAR in one case, but given ongoing litigation
and legislative initiatives, as well as the complexity of the various
VAAR parts, the phased incremental approach permitted the public to be
able to focus on specific topics and parts of interest and allow them
to timely submit public comments which may have been more onerous if
the complete VAAR were revised at one time. VA received no comments on
the proposed rule.
VA has submitted a copy of the FRFA to the Chief Counsel for
Advocacy of the Small Business Administration.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal Governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This final rule would have no such effect
on State, local, and tribal governments or on the private sector.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
the Office of Information and Regulatory Affairs designated this rule
as not a major rule, as defined by 5 U.S.C. 804(2).
List of Subjects
48 CFR Parts 802, 807, 808, 810, 813, 832, and 853
Government procurement.
48 CFR Part 819
Administrative practice and procedure, Government procurement,
Reporting and recordkeeping requirements, Small business, Veterans.
48 CFR Part 852
Government procurement, Reporting and recordkeeping requirements.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on September 23, 2022, 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.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA amends 48 CFR chapter
8 as follows:
PART 802--DEFINITIONS OF WORDS AND TERMS
0
1. Revise the authority citation for part 802 to read as follows:
[[Page 63002]]
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C.
1702; and 48 CFR 1.301 through 1.304.
0
2. Amend section 802.101 by:
0
a. Adding definitions in alphabetical order for ``Public Law (Pub. L.)
109-461'' and ``SDVOSB/VOSB'';
0
b. Removing the definition of ``Service-disabled veteran-owned small
business concern (SDVOSB)'' and adding the definition ``Service-
disabled veteran-owned small business (SDVOSB)'' in its place;
0
c. Adding a definition in alphabetical order for ``VA Rule of Two'';
0
d. Removing the definitions of ``Vendor Information Pages (VIP)'' and
``Veteran-owned small business concern (VOSB)'' and adding the
definitions ``Vendor Information Pages (VIP) or VIP database'' and
``Veteran-owned small business (VOSB)'' in their places, respectively;
and
0
e. Adding a definition in alphabetical order for ``Veterans First
Contracting Program''.
The additions read as follows:
802.101 Definitions.
* * * * *
Public Law (Pub. L.) 109-461 means the Veterans Benefits, Health
Care and Information Technology Act of 2006, as codified in 38 U.S.C.
8127 and 8128.
SDVOSB/VOSB when used as an initialism means a service-disabled
veteran-owned small business (SDVOSB) and/or veteran-owned small
business (VOSB) that has been found by VA eligible to participate in
the Veterans First Contracting Program implemented at subpart 819.70
and listed in the Vendor Information Pages. The term is synonymous with
VA or VIP-verified small business concerns owned and controlled by
Veterans.
Service-disabled veteran-owned small business (SDVOSB) or small
business concern owned and controlled by Veterans with service-
connected disabilities has the same meaning as service-disabled
veteran-owned small business concern defined in FAR 2.101, except that
for acquisitions authorized by 38 U.S.C. 8127 and 8128 for the Veterans
First Contracting Program, these businesses must be listed as verified
in the VIP database. In addition, some SDVOSB listed in the VIP
database may be owned and controlled by a surviving spouse. See
definition of surviving spouse in this section.
* * * * *
VA Rule of Two means the determination process mandated in 38
U.S.C. 8127(d)(1) whereby a contracting officer of the Department shall
award contracts on the basis of competition restricted to small
business concerns owned and controlled by veterans if the contracting
officer has a reasonable expectation that two or more small business
concerns owned and controlled by Veterans will submit offers and that
the award can be made at a fair and reasonable price that offers best
value to the United States. For purposes of this VA specific rule, a
service-disabled veteran-owned small business (SDVOSB) or a veteran-
owned small business (VOSB), must meet the eligibility requirements in
38 U.S.C. 8127(e), (f) and VAAR 819.7003 and be listed as verified in
the Vendor Information Pages (VIP) database.
* * * * *
Vendor Information Pages (VIP) or VIP database means the Department
of Veterans Affairs Office of Small and Disadvantaged Business
Utilization (OSDBU) Center for Verification and Evaluation (CVE) Vendor
Information Pages (VIP) database at <a href="https://www.vetbiz.va.gov/vip/">https://www.vetbiz.va.gov/vip/</a>.
This site's database lists businesses that VA CVE has determined
eligible for the Veterans First Contracting Program.
Veteran-owned small business (VOSB) has the same meaning as
veteran-owned small business concern defined in FAR 2.101, except that
for acquisitions authorized by 38 U.S.C. 8127 and 8128 for the Veterans
First Contracting Program, these businesses must be listed as verified
in the VIP database. SDVOSBs, including businesses whose SDVOSB status
derive from ownership and control by a surviving spouse, are also
considered VOSBs, as long as they are listed as eligible in VIP.
Veterans First Contracting Program means the program authorized by
Public Law 109-461 (38 U.S.C. 8127 and 8128), as implemented in subpart
819.70. This program applies to all VA contracts (see FAR 2.101 for the
definition of contracts) as well as Blanket Purchase Agreements (BPAs),
Basic Ordering Agreements (BOAs), and orders against the Federal Supply
Schedules (FSS), unless otherwise excluded by law.
* * * * *
PART 807 [REMOVED AND RESERVED]
0
3. Under the authority of 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3), 1303,
and 1702; and 48 CFR 1.301 through 1.304, remove and reserve part 807.
0
4. Revise part 808 to read as follows:
PART 808--REQUIRED SOURCES OF SUPPLIES AND SERVICES
Sec.
808.000 Scope of part.
808.001 General.
808.001-70 Definitions.
808.002 Priorities for use of mandatory Government sources.
808.004 Use of other sources.
808.004-70 Use of other priority sources.
Subpart 808.4--Federal Supply Schedules
808.402 General.
808.404 Use of Federal Supply Schedules.
808.404-70 Use of Federal Supply Schedules--the Veterans First
Contracting Program.
808.405 Ordering procedures for Federal Supply Schedules.
808.405-70 Set-aside procedures for VA and GSA Federal Supply
Schedules.
808.405-570 VVSmall business set-asides and preferences--Veterans
First Contracting Program clauses.
Subpart 808.6--Acquisition From Federal Prison Industries, Inc.
808.603 Purchase priorities.
Subpart 808.8--[Reserved]
Authority: 38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.
808.000 Scope of part.
This part deals with prioritizing sources of supplies and services
for use by the Government based on unique VA statutory programs, as
well as requirements when using the General Services Administration
(GSA) Federal Supply Schedules program including the GSA delegated VA
Federal Supply Schedule program.
808.001 General.
808.001-70 Definitions.
As used in this part--
Veterans Affairs (VA) Federal Supply Schedule (FSS) or ``VA FSS''
means FSS contracts awarded by the VA National Acquisition Center,
under authority delegated by the General Services Administration (GSA)
per FAR 8.402(a). VA FSS contracts include medical, dental, pharmacy
and veterinary equipment and supplies in Federal Supply Classification
(FSC) Group 65, instruments and laboratory equipment in FSC Group 66
and health care services in FSC Group 621.
808.002 Priorities for use of mandatory Government sources.
(a) Priorities. Contracting activities shall satisfy requirements
for supplies and services from or through the mandatory sources listed
in paragraphs (a)(1) and (2) of this section in descending order of
priority:
(1) Supplies. (i) VA inventories including the VA supply stock
program (41 CFR 101-26.704) and VA excess.
(ii) Excess from other agencies (see FAR subpart 8.1).
(iii) Federal Prison Industries, Inc. (see 808.603). Prior to
considering
[[Page 63003]]
award of a contract to Federal Prison Industries, Inc., contracting
officers shall apply the VA Rule of Two (see 802.101) to determine
whether a requirement should be awarded to veteran-owned small
businesses under the authority of 38 U.S.C. 8127-28, by using the
preferences and priorities in subpart 819.70. If an award is not made
to a VIP-listed and verified service-disabled veteran-owned small
business (SDVOSB)/veteran-owned small business (VOSB) as provided in
subpart 819.70, FPI remains a mandatory source in accordance with FAR
8.002.
(iv) Supplies that are on the Procurement List maintained by the
Committee for Purchase From People Who Are Blind or Severely Disabled,
through the AbilityOne Program (FAR subpart 8.7). Supplies that are on
the Procurement List but which do not meet the definition of a covered
product in paragraph (a)(1)(iv)(A) of this section are only required to
be procured from a mandatory source in accordance with FAR 8.002 if an
award is not made to a VIP-listed and verified SDVOSB/VOSB after
following the procedures set forth in subpart 819.70.
(A) Definition. As used in this paragraph (a)(1)(iv), covered
product means a product that--
(1) Is included on the Procurement List as authorized under 41
U.S.C. 8503(a) (see FAR 8.703) and was included on the Procurement List
on or before December 22, 2006; or
(2) Meets the following criteria--
(i) Is a replacement for a product under this paragraph (a)(1)(iv);
(ii) Is essentially the same and meeting the same requirement as
the product being replaced; and
(iii) The contracting officer determines the product meets the
quality standards and delivery schedule requirements of VA.
(B) Policy. Except as provided in paragraphs (a)(1)(iv)(C) and (D)
of this section, contracting officers shall procure covered products
that are on the Procurement List through the AbilityOne Program as set
forth in FAR subpart 8.7. Contracting officers shall not procure
products that are on the Procurement List, but which do not meet the
definition of a covered product using the procedures set forth in FAR
subpart 8.7, unless award cannot be made to a VIP-listed and verified
SDVOSB/VOSB pursuant to the procedures set forth in subpart 819.70.
(C) Exception for certain contracts awarded in accordance with the
Veterans First Contracting Program in subpart 819.70. If a contract for
a covered product awarded under the authority of 38 U.S.C. 8127(d)(1)
to a VIP-listed SDVOSB or VOSB was in effect as of August 7, 2020, the
requirement shall continue as an SDVOSB/VOSB set-aside in accordance
with 819.7006 and 819.7007.
(D) Termination or expiration of excepted contracts. When a
contract previously awarded as set forth in paragraph (a)(1)(iv)(C) of
this section is terminated or expires, contracting officers shall
procure such covered product through the AbilityOne Program as a
priority mandatory Government source (see paragraph (a)(1)(iv)(B) of
this section), provided the head of the contracting activity or
designee determines there is no reasonable expectation that--
(1) Two or more SDVOSBs/VOSBs will submit offers; and
(2) Award can be made at a fair and reasonable price that offers
best value to the United States.
(v) Wholesale supply sources, such as stock programs of the General
Services Administration (GSA) (see 41 CFR 101-26.3), the Defense
Logistics Agency (see 41 CFR 101-26.6), the Department of Veterans
Affairs (see 41 CFR 101-26.704), and military inventory control points.
(2) Services. Services that are on the Procurement List maintained
by the Committee for Purchase From People Who Are Blind or Severely
Disabled, through the AbilityOne Program (FAR subpart 8.7). For
services that are on the Procurement List, but which do not meet the
definition of a covered service in paragraph (a)(2)(i) of this section
are only required to be procured from a mandatory source in accordance
with FAR 8.002 if an award is not made to a VIP-listed and verified
SDVOSB/VOSB after following the procedures set forth in subpart 819.70.
(i) Definition. As used in this paragraph (a)(2)--
Covered service means a service that--
(1) Is included on the Procurement List as authorized under 41
U.S.C. 8503(a) (see FAR 8.703) and was included on the Procurement List
on or before December 22, 2006; or
(2) Meets the following criteria--
(i) Is a replacement for a service under this paragraph (a)(2);
(ii) Is essentially the same and meeting the same requirement as
the service being replaced; and
(iii) The contracting officer determines the service meets the
quality standards and delivery schedule requirements of VA.
(ii) Policy. Except as provided in paragraphs (a)(2)(iii) and (iv)
of this section, contracting officers shall procure covered services
that are on the Procurement List through the AbilityOne Program as set
forth in FAR subpart 8.7. Contracting officers shall not procure
services that are on the Procurement List, but which do not meet the
definition of a covered service using the procedures set forth in FAR
subpart 8.7, unless award cannot be made to a VIP-listed and verified
SDVOSB/VOSB pursuant to the procedures set forth in subpart 819.70.
(iii) Exception for certain contracts awarded in accordance with
the Veterans First Contracting Program in subpart 819.70. If a contract
for a covered service awarded under the authority of 38 U.S.C.
8127(d)(1) to a VIP-listed SDVOSB or VOSB was in effect as of August 7,
2020, the requirement shall continue as an SDVOSB/VOSB set-aside in
accordance with 819.7006 and 819.7007.
(iv) Termination or expiration of certain excepted contracts. When
a contract previously awarded as set forth in paragraph (a)(2)(iii) of
this section is terminated or expires, contracting officers shall
procure such covered service through the AbilityOne Program as a
priority mandatory Government source (see paragraph (a)(2)(ii) of this
section), provided the head of the contracting activity or designee
determines there is no reasonable expectation that--
(A) Two or more SDVOSBs/VOSBs will submit offers; and
(B) Award can be made at a fair and reasonable price that offers
best value to the United States.
(b) Unusual and compelling urgency. The contracting officer may use
a source other than those listed in paragraph (a) of this section when
the need for supplies or services is of an unusual and compelling
urgency (see FAR 6.302-2, 8.405-6, and 13.106-1 and part 806 for
justification requirements).
808.004 Use of other sources.
808.004-70 Use of other priority sources.
(a) Veterans contracting priority. In order to fulfill the
requirements of 38 U.S.C. 8127-8128 (see subpart 819.70), contracting
officers shall award contracts (see FAR 2.101 for the definition of
contracts), as well as Blanket Purchase Agreements (BPAs), and orders
against VA and GSA Federal Supply Schedules (FSS), providing priority
in the awarding of such contracts to VIP-listed SDVOSBs first, then
VOSBs.
(b) Strategic sourcing priorities and application of the VA Rule of
Two. To provide medical supplies in Federal Supply Classification (FSC)
groups 65 and 66 efficiently and effectively the
[[Page 63004]]
VA, through previous reform initiatives, has implemented key strategic
sourcing contract vehicles (e.g., prime-vendor, national contracts, VA
FSS). If these strategic sourcing contracts were subject to the VA Rule
of Two (see 802.101), they may be determined mandatory by the head of
the contracting activity. Contracting officers shall consider these
priority contract vehicles before using other existing contract
vehicles.
Subpart 808.4--Federal Supply Schedules
808.402 General.
(a) GSA has delegated authority to the VA to procure medical
equipment, supplies, services and pharmaceuticals under the VA Federal
Supply Schedule (FSS) program. The VA FSS program includes medical
supplies in Federal Supply Classification (FSC) Groups 65 and 66 and
services in FSC 621 for Professional and Allied Healthcare Staffing
Services and Medical Laboratory Testing and Analysis Services.
808.404 Use of Federal Supply Schedules.
808.404-70 Use of Federal Supply Schedules--the Veterans First
Contracting Program.
(a) The Veterans First Contracting Program, implemented in subpart
819.70 pursuant to 38 U.S.C. 8127-8128, applies to BPAs, and orders
under FAR subpart 8.4 and has precedence over other small business
programs.
(b) Contracting officers, when establishing a BPA or placing an
order against the FSS, shall ensure that priorities for veteran-owned
small businesses are implemented within the VA hierarchy of small
business program preferences in subpart 819.70. Specifically, the
contracting officer will consider preferences for verified SDVOSBs
first, then preferences for verified VOSBs. These priorities will be
followed by preferences for other small businesses in accordance with
819.7005.
(c) If unable to satisfy requirements for supplies and services
from the mandatory sources in 808.002 and 808.004-70, contracting
officers may consider commercial sources in the open market (see FAR
8.004(b)) if an open market acquisition is most appropriate (see FAR
8.004) and a VA Rule of Two (see 802.101) determination is made (see
subpart 819.70).
(d) When the servicing agency will award contracts under an
interagency agreement on behalf of the VA, the contracting officer
shall ensure the interagency acquisition complies with FAR subpart 17.5
and subpart 817.5 and includes terms requiring compliance with the VA
Rule of Two (see 817.501).
808.405 Ordering procedures for Federal Supply Schedules.
808.405-70 Set-aside procedures for VA and GSA Federal Supply
Schedules.
To satisfy VA legislative requirements, contracting officers shall
use the supplemental ordering procedures of this section when
establishing a BPA or placing an order for supplies or services under
this subpart as follows:
(a) When market research supports set-asides. Pursuant to 38 U.S.C.
8127, contracting activities shall set-aside BPAs and orders for VIP-
listed SDVOSBs or VOSBs when, based on research, the contracting
officer has a reasonable expectation that two or more small business
concerns owned and controlled by Veterans or owned and controlled by
Veterans with service-connected disabilities will submit offers and
that award can be made at a fair and reasonable price that offers best
value to the United States. When the VA Rule of Two (see 802.101) is
met:
(1) The set-aside requirements as provided in 819.7006 and 819.7007
are mandatory.
(2) The requirements in FAR 8.405-1, 8.405-2, and 8.405-3 apply,
except only quotes received from verified (i.e., VIP-listed) and
eligible SDVOSBs or VOSBs will be considered.
(3) The eligibility requirements of 819.7003, 819.7006, and
819.7007 apply, including the requirement for offerors to be VIP-listed
at the time they submit offers/quotes as well as at the time awards are
made.
(4) The contracting officer shall notify potential offerors of the
unique VA verification requirements by including in the solicitation
the applicable set-aside clause prescribed at 819.7011.
(b) When market research does not support set-asides. Pursuant to
38 U.S.C. 8128 and to the extent that market research does not support
an SDVOSB or VOSB set-aside in either FSS or the open market, the
contracting activity shall give priority in the award of orders placed
under this part to VIP-listed SDVOSBs/VOSBs through the use of
evaluation preferences giving priority to SDVOSBs first, then to a
lesser extent VOSBs, and finally to any firm that proposes to use
SDVOSBs/VOSBs as subcontractors. Contracting officers must use the
clause prescribed in 808.405-570(b).
(c) SDVOSB/VOSB eligibility requirements. The SDVOSB and VOSB
eligibility requirements in 819.7003 apply, including current SDVOSB
and VOSB VIP-listed status at the time of submission of offer/quote and
at time of award. The offeror must also represent that it meets the
small business size standard for the assigned North American Industry
Classification System (NAICS) code as well as other small business
requirements (including completing the certification found in 852.219-
75 or 852.219-76.
808.405-570 Small business set-asides and preferences--Veterans First
Contracting Program clauses.
(a) When setting aside an order pursuant to 808.405-70(a), the
applicable clause prescribed in 819.7011 for SDVOSB/VOSB set-asides
shall be used.
(b) When an SDVOSB/VOSB set-aside is not feasible, the ordering
activity shall use the clause at 852.208-70, Service-Disabled Veteran-
Owned and Veteran-Owned Small Business Evaluation Factors--Orders or
BPAs, for task orders, delivery orders, or BPAs using evaluation
factors other than price alone.
(c) The ordering activity shall insert the clause at 852.208-71,
Service-Disabled Veteran-Owned and Veteran-Owned Small Business
Evaluation Factor Commitments--Orders or BPAs, in request for quotes
and resulting orders that include clause 852.208-70, Service-Disabled
Veteran-Owned and Veteran-Owned Small Business Evaluation Factors--
Orders or BPAs.
Subpart 808.6--Acquisition From Federal Prison Industries, Inc.
808.603 Purchase priorities.
A waiver from Federal Prison Industries is not needed when
comparable supplies and services are procured in accordance with
subpart 819.70.
Subpart 808.8 [Reserved]
0
5. Part 810 is revised to read as follows:
PART 810--MARKET RESEARCH
Sec.
810.000 Scope of part.
810.001 Policy.
810.001-70 Market research policy--use of VA Vendor Information
Pages.
Authority: 38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.
810.000 Scope of part.
The Veterans First Contracting Program in subpart 819.70 applies to
contract actions under this part and takes precedence over other small
[[Page 63005]]
business programs referenced in FAR part 10 and FAR part 19.
810.001 Policy.
810.001-70 Market research policy--use of VA Vendor Information
Pages.
When performing market research, contracting officers shall review
the Vendor Information Pages (VIP) database at <a href="https://www.vetbiz.va.gov/vip/">https://www.vetbiz.va.gov/vip/</a> as required by subpart 819.70. The contracting
officer will search the VIP database by applicable North American
Industry Classification System (NAICS) codes to determine whether two
or more verified service-disabled veteran-owned small businesses
(SDVOSBs) and/or veteran-owned small businesses (VOSBs), with the
appropriate NAICS code, are listed as verified in the VIP database. The
contracting officer will determine, among other things as the
requirement dictates, whether VIP-listed SDVOSBs or VOSBs identified as
a result of market research are capable of performing the work, are
likely to submit an offer/quote, and whether an award can be made at a
fair and reasonable price that offers best value to the Government. The
contracting officer shall use the market research for acquisition
planning purposes, and as set forth in subpart 819.70, conduct a VA
Rule of Two (see 802.101) determination in accordance with the
contracting order of priority (see 819.7005 and 819.7006).
PART 813--SIMPLIFIED ACQUISITION PROCEDURES
0
6. The authority citation for part 813 continues to read as follows:
Authority: 38 U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C.
1702; and 48 CFR 1.301 through 1.304.
0
7. Revise section 813.003-70 to read as follows:
813.003-70 General policy.
(a) The Veterans First Contracting Program in subpart 819.70
applies to VA contracts, orders and BPAs under this part and has
precedence over other small business programs referenced in FAR parts
13 and 19. For VA policy regarding mandatory Government sources, refer
to 808.002.
(b) Notwithstanding FAR 13.003(b)(2), the contracting officer shall
make an award utilizing the priorities for veteran-owned small
businesses as implemented within the VA hierarchy of small business
program preferences, the Veterans First Contracting Program in subpart
819.70. Specifically, the contracting officer shall consider
preferences for verified service-disabled veteran-owned small
businesses (SDVOSBs) first, then preferences for verified veteran-owned
small businesses (VOSBs). These priorities will be followed by
preferences for other small businesses in accordance with 819.7005.
(c) When using competitive procedures, the preference for
restricting competition to verified SDVOSBs/VOSBs in accordance with
paragraph (b) of this section is mandatory whenever market research
provides a reasonable expectation of receiving two or more offers/
quotes from eligible, capable and verified firms, and that an award can
be made at a fair and reasonable price that offers best value to the
Government.
(1) Pursuant to 38 U.S.C. 8127, contracts under this part shall be
set-aside for SDVOSBs/VOSBs, in accordance with 819.7006 or 819.7007
when supported by market research. Contracting officers shall use the
applicable set-aside clause prescribed at 819.7011.
(2) Pursuant to 38 U.S.C. 8128 and to the extent that market
research does not support an SDVOSB or VOSB set-aside, the contracting
officer shall include evaluation factors as prescribed at 815.304-70
and the evaluation criteria clause prescribed at 815.304-71(a).
(d) The SDVOSB and VOSB eligibility requirements in 819.7003 apply,
including verification of the SDVOSB and VOSB status of an offeror, and
other small business requirements in 13 CFR part 121 and 13 CFR 125.6
(e.g., small business representation, nonmanufacturer rule, and
subcontracting limitations (see 819.7004 and 819.7011)).
Subpart 813.1--Procedures
0
8. Revise section 813.106-70 to read as follows:
813.106-70 Soliciting competition, evaluation of quotations or offers,
award and documentation--the Veterans First Contracting Program.
(a) When using competitive procedures under this part, the
contracting officer shall use the Veterans First Contracting Program in
subpart 819.70 and the guidance set forth in 813.003-70.
(b) Pursuant to 38 U.S.C 8127(b), contracting officers may use
other than competitive procedures to enter into a contract with a
verified SDVOSB or VOSB for procurements below the simplified
acquisition threshold, as authorized by FAR 6.302-5 and 806.302-570(a)
and (b).
(c) For procurements above the simplified acquisition threshold,
pursuant to 38 U.S.C. 8127(c), contracting officers may also award a
contract under this part to a firm verified under the Veterans First
Contracting Program at subpart 819.70, using procedures other than
competitive procedures, as authorized by FAR 6.302-5 and 806.302-570(a)
and (c), and in accordance with 819.7008 and 819.7009.
0
9. Part 819 is revised to read as follows:
PART 819--SMALL BUSINESS PROGRAMS
Sec.
819.000 Scope of part.
Subpart 819.2--Policies
819.201 General policy.
819.202 Specific policies.
819.203 Relationship among small business programs.
819.203-70 Priority for SDVOSB/VOSB contracting preferences.
Subpart 819.3--Determination of Small Business Size and Status for
Small Business Programs
819.307 Protesting a firm's status as a service-disabled veteran-
owned small business concern.
819.307-70 SDVOSB/VOSB status protests.
Subpart 819.5--Small Business Total Set-Asides, Partial Set-Asides, and
Reserves
819.501 General.
819.501-70 General principles for setting aside VA acquisitions.
819.502 Setting aside acquisitions.
819.502-1 Requirements for setting aside acquisitions.
819.502-2 Total small business set-asides.
819.507 Solicitation provisions and contract clauses.
819.507-70 Additional VA solicitation provisions and contract
clauses.
Subpart 819.6--[Reserved]
Subpart 819.7--The Small Business Subcontracting Program
819.704-70 VA subcontracting plan requirements.
819.708 Contract clauses.
Subpart 819.8--Contracting With the Small Business Administration (the
8(a) Program)
819.800 General.
819.811 Preparing the contracts.
819.811-370 VA/SBA Partnership Agreement and contract clauses.
Subpart 819.70--The VA Veterans First Contracting Program
819.7001 General.
819.7002 Applicability.
819.7003 Eligibility.
819.7004 Limitations on subcontracting compliance requirements.
819.7005 Contracting order of priority.
819.7006 VA service-disabled veteran-owned small business set-aside
procedures.
819.7007 VA veteran-owned small business set-aside procedures.
[[Page 63006]]
819.7008 Sole source awards to verified service-disabled veteran-
owned small businesses.
819.7009 Sole source awards to verified veteran-owned small
businesses.
819.7010 Tiered set-aside evaluation.
819.7011 Contract clauses.
Subpart 819.71--[Reserved]
Authority: 15 U.S.C. 631, et seq.; 15 U.S.C. 637(d)(4)(E); 38
U.S.C. 8127-8128; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C.
1303; 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.
819.000 Scope of part.
(a) This part supplements FAR part 19 and implements the service-
disabled veteran-owned small business (SDVOSB), veteran-owned small
business (VOSB), and small business provisions of 38 U.S.C. 8127 and
8128, Executive Order 13360, and the Small Business Act (15 U.S.C. 631
et. seq.) as applied to the Department of Veterans Affairs (VA). This
part also covers--
(1) Goals for using SDVOSBs and VOSBs;
(2) Priorities and preferences for using SDVOSBs/VOSBs;
(3) SDVOSB/VOSB eligibility and contract compliance;
(4) Setting aside acquisitions for SDVOSBs/VOSBs;
(5) Sole-source awards to SDVOSBs and VOSBs; and
(6) Evaluation preferences and contract clauses.
Subpart 819.2--Policies
819.201 General policy.
(a) It is VA policy that small business concerns owned and
controlled by veterans shall have maximum practicable opportunity to
participate in VA acquisitions, consistent the priorities and
preferences prescribed under the Veterans First Contracting Program in
subpart 819.70.
(1) To carry out this policy the Secretary shall establish annual
SDVOSB and VOSB contracting goals.
(2) In support of these goals, each administration and staff office
shall in turn establish annual goals for each subordinate contracting
activity that present, for that activity, the maximum practicable
opportunity for small business concerns, and particularly SDVOSBs/
VOSBs, to participate in the performance of the activity's contracts
and subcontracts.
(3) The attainment of these goals or the use of interagency
acquisition vehicles does not limit the applicability of the Veterans
First Contracting Program and priorities in subpart 819.70.
(c) In addition to the duties and responsibilities in FAR
19.201(c), the Executive Director, Office of Small and Disadvantaged
Business Utilization (OSDBU), is responsible for overseeing
implementation of the Veterans First Contracting Program under subpart
819.70.
(d) Each organization with contracting authority shall designate
small business specialists/technical advisors in coordination with the
OSDBU Director.
819.202 Specific policies.
OSDBU is responsible for reviewing procurement strategies,
establishing thresholds for such reviews and making recommendations to
assist contracting officers in the implementation of this part. These
responsibilities shall be conducted within the VA hierarchy of small
business program preferences established by 38 U.S.C. 8127(h) (see
subpart 819.70), which requires VA to consider preferences for VIP-
listed SDVOSBs first, then preferences for VIP-listed VOSBs.
Contracting officers shall use VA Form 2268, Small Business Program and
Contract Bundling Review, to document actions and recommendations.
819.203 Relationship among small business programs.
819.203-70 Priority for SDVOSB/VOSB contracting preferences.
(a) 38 U.S.C. 8127 and 8128 require the VA to provide priority and
establish special acquisition methods to increase contracting
opportunities for SDVOSBs/VOSBs. These priorities and special
acquisition methods are set forth in subpart 819.70 and shall be
applied by contracting officers before other priorities and preferences
in FAR 19.203.
(b) Pursuant to 38 U.S.C. 8128, contracting officers shall give
priority to SDVOSBs/VOSBs if such business concern(s) also meet the
requirements of that contracting preference. The requirement in this
paragraph (b) applies even when using a contracting preference under
FAR part 19 (for example, a women-owned small business set-aside).
Subpart 819.3--Determination of Small Business Size and Status for
Small Business Programs
819.307 Protesting a firm's status as a service-disabled veteran-owned
small business concern.
819.307-70 SDVOSB/VOSB status protests.
All protests relating to size, status, and/or whether an SDVOSB or
a VOSB is a ``small business'' are subject to the Small Business
Administration (SBA) regulations at 13 CFR part 121 and must be filed
in accordance with SBA guidelines at 13 CFR part 134 (see FAR subpart
19.3). Pursuant to Public Law 114-328, SBA will hear cases related to
size and status, including ownership and control challenges under the
VA Veterans First Contracting Program (see 38 U.S.C. 8127(f)(8)).
Subpart 819.5--Small Business Total Set-Asides, Partial Set-Asides,
and Reserves
819.501 General.
819.501-70 General principles for setting aside VA acquisitions.
(a) The following principles apply to VA acquisitions under this
subpart:
(1) Before setting aside or reserving an acquisition for small
businesses under FAR subpart 19.5, contracting officers shall refer to
808.002 and 819.203-70 and subpart 819.70 for VA SDVOSB/VOSB priorities
and preferences.
(2) Set-asides under the Veterans First Contracting Program in
subpart 819.70 (see 819.7006 and 819.7007) have precedence over other
small business set-asides authorized in FAR part 19, both above and
below the simplified acquisition threshold (SAT). An SDVOSB/VOSB set-
aside satisfies the legislative requirement to reserve actions below
the SAT for small business.
(3) Pursuant to 38 U.S.C. 8127(d), set-asides for SDVOSBs/VOSBs are
mandatory whenever a contracting officer has a reasonable expectation
of receiving two or more offers/quotes from eligible, capable and
verified firms, and that an award can be made at a fair and reasonable
price that offers best value to the Government. (VA Rule of Two (see
802.101))
(b) The set-aside principles in this section apply to VA
acquisitions even when a procuring activity is meeting its goals or is
planning the use of an interagency agreement, Federal Supply Schedule,
or a multiple award contract, including a Governmentwide contract
vehicle.
(c) The requirements in this section apply to all VA acquisitions
under this subpart, including reserves, orders, and BPAs under multiple
award contracts, GSA Federal Supply Schedule contracts, and Multi-
Agency Contracts (MACs) awarded by another agency. A set-aside
restricted to SDVOSBs/VOSBs pursuant to subpart 819.70 satisfies
competition requirements in FAR part 6, as well as fair opportunity
requirements for orders under multiple-award contracts (see FAR
16.505(b)(2)(i)(F)).
[[Page 63007]]
819.502 Setting aside acquisitions.
819.502-1 Requirements for setting aside acquisitions.
(b) Contracting officers shall refer to 808.002 for the VA policy
regarding priorities for use of SDVOSBs/VOSBs and mandatory Government
sources.
819.502-2 Total small business set-asides.
(a) If the contracting officer receives no acceptable offers from
responsible small business concerns, the set-aside shall be withdrawn
and the requirement, if still valid, shall be resolicited on an
unrestricted basis or, if permitted in the solicitation, the
contracting officer will follow the tiered set-aside evaluation
procedures in 819.7010, Tiered evaluation, and proceed to the next
eligible tier in the evaluation process.
819.507 Solicitation provisions and contract clauses.
819.507-70 Additional VA solicitation provisions and contract clauses.
For contracts, orders, or BPAs to be issued as SDVOSB/VOSB reserve,
tiered evaluation, set-aside, or sole source, see 819.7011. Also see
subparts 808.4 and 815.3 and 819.203-70 for requirements and clauses
applicable to VA small business set-asides.
Subpart 819.6--[Reserved]
Subpart 819.7--The Small Business Subcontracting Program
819.704-70 VA subcontracting plan requirements.
(a) VA's current subcontracting goals, at a minimum, shall be
inserted into all solicitations which contain FAR clause 52.219-9. To
the maximum extent possible, the contracting officer shall ensure that
individual subcontracting plans submitted by offerors subject to clause
852.219-70, VA Small Business Subcontracting Plan Minimum Requirements,
include SDVOSB/VOSB goals that are commensurate with the annual VA
SDVOSB/VOSB subcontracting goals (see 819.708).
(1) Only firms listed as verified on the Vendor Information Pages
(VIP) database (see subpart 819.70) will count towards SDVOSB and VOSB
goals.
(2) A contractor may reasonably rely on a subcontractor's status as
shown in the VIP database as of the date of subcontract award, provided
the contractor retains records of the results of the VIP database
query.
(3) In furtherance of 38 U.S.C. 8127(a)(4), contractors shall
submit subcontracting plan reports to OSDBU as set forth in clause
852.219-70, VA Small Business Subcontracting Plan Minimum Requirements.
Unless otherwise directed by OSDBU, VA Form 0896A, Report of
Subcontracts to Small and Veteran Owned Business, shall be used to
submit the required information.
(b) Subcontracting goals should be expressed as a percentage of
total dollars to be subcontracted unless otherwise stated in the
solicitation.
(c) If an offeror proposes to use an SDVOSB/VOSB subcontractor for
the purpose of receiving SDVOSB/VOSB evaluation factors credit pursuant
to 808.405-70 or 815.304-70, the contracting officer shall ensure that
the offeror, if awarded the contract, actually uses the proposed
subcontractor or another SDVOSB/VOSB for that subcontract or for work
of similar value, in accordance with clause 852.208-70, Service-
Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation
Factors--Orders or BPAs, or 852.215-71, Evaluation Factor Commitments.
(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 or VOSB status is subject to debarment from
contracting with the Department for a period of not less than five
years. This includes the debarment of all principals in the business
(see 809.406-270).
819.708 Contract clauses.
(b) The contracting officer shall insert clause 852.219-70, Small
Business Subcontracting Plan Minimum Requirements, in solicitations and
contracts that include FAR clause 52.219-9, Small Business
Subcontracting Plan.
Subpart 819.8--Contracting With the Small Business Administration
(the 8(a) Program)
819.800 General.
(e) The Small Business Administration (SBA) and the Department of
Veterans Affairs (VA) have entered into a Partnership Agreement
delegating SBA's contract execution and administrative functions to VA.
Contracting officers shall follow the alternate procedures in the
Partnership Agreement and this subpart, as applicable, to award an 8(a)
contract. In the event the Partnership Agreement ceases to be in
effect, contracting officers shall follow the procedures in FAR subpart
19.8.
819.811 Preparing the contracts.
819.811-370 VA/SBA Partnership Agreement and contract clauses.
(a) Before placing new requirements under the 8(a) program, the
contracting officer must determine whether an SDVOSB/VOSB set-aside is
mandated under the VA Rule of Two (see 802.101). If the determination
does not result in an SDVOSB/VOSB set-aside, the contracting officer
may consider the 8(a) program.
(b) The Partnership Agreement provides that SBA can release
procurements already in the program whenever an SDVOSB or VOSB set-
aside is feasible.
(c) When an 8(a) acquisition is processed pursuant to the
Partnership Agreement, the contracting officer shall:
(1) For competitive solicitations and awards, use the clause at
852.219-71, VA Notification of Competition Limited to Eligible 8(a)
Participants, substituting paragraph (c) of FAR 52.219-18, Notification
of Competition Limited to Eligible 8(a) Participants, with paragraph
(c) contained in 852.219-71.
(2) For noncompetitive solicitations and awards insert the clause
at 852.219-72, Notification of Section 8(a) Direct Awards, instead of
the prescribed FAR clauses at 52.219-11, Special 8(a) Contract
Conditions; 52.219-12, Special 8(a) Subcontract Conditions; and 52.219-
17, Section 8(a) Award.
(3) In all instances, contracting include the clause at FAR 52.219-
14, Limitations on Subcontracting, or if applicable 52.219-33,
Nonmanufacturer Rule.
Subpart 819.70--The VA Veterans First Contracting Program
819.7001 General.
(a) Sections 502 and 503 of Public Law 109-461, the Veterans
Benefits, Health Care, and Information Technology Act of 2006, as
amended (38 U.S.C. 8127- 8128), authorizes a VA specific program to
increase contracting opportunities for eligible small business concerns
owned and controlled by Veterans with service-connected disabilities
and small business concerns owned and controlled by Veterans. Once
ownership and control by these veterans is verified, these businesses
are referred to as service-disabled veteran-owned small businesses
(SDVOSBs) and veteran-owned small businesses (VOSBs) or collectively
SDVOSB/VOSB for ease of reference.
(b) The program as implemented in this subpart shall be known as
the Veterans First Contracting Program. The purpose of the program is
to increase
[[Page 63008]]
contracting opportunities and provide for priority in the award of
contracts and subcontracts to SDVOSBs/VOSBs so they can fully
participate in the VA contracting process. Eligible SDVOSBs qualify for
any VOSB preferences under this subpart.
(c) VA's program is codified at 38 U.S.C. 8127(b), (c), and (d),
and provides the authority for VA contracting officers to make awards
to SDVOSBs/VOSBs using restricted competition, as well as other than
full and open competition (sole source), as set-forth in this subpart.
Additionally, 38 U.S.C. 8128 provides the authority for VA to give
SDVOSBs/VOSBs priority in the awarding of contracts and subcontracts
using evaluation preferences.
(d) Contracting officers shall award contracts by restricting
competition to eligible SDVOSBs/VOSBs as provided in 819.7006 and
819.7007. The contracting officer may use other preferences in this
subpart as appropriate and in accordance with procuring activity
guidelines.
(e) Pursuant to 38 U.S.C. 8128, contracting officers shall give
priority to SDVOSBs/VOSBs if such business concern(s) also meet the
requirements of that contracting preference. In carrying out this
responsibility, contracting officers shall include the clauses
prescribed at 808.405-570 and 815.304-71 in competitive solicitations
and contracts that are not set-aside for SDVOSB/VOSB, including those
under FAR part 12. The requirement in this paragraph (e) applies even
when using a contracting preference under FAR part 19 (for example, a
women-owned small business set-aside).
(f) The attainment of goals or the use of interagency vehicles or
Governmentwide contract vehicles (i.e., Federal Supply Schedules (FSS))
does not relieve the contracting officer from using SDVOSB/VOSB set-
asides and other preferences as provided in subpart 819.70. Moreover,
if the VA enters into a contract, agreement, or other arrangement with
any governmental entity to acquire goods or services, the entity acting
on behalf of the VA through such an interagency acquisition or other
agreement will comply, to the maximum extent feasible, with the
provisions of the Veterans First Contracting Program as set forth in
this subpart.
(g) Contracting officers shall ensure awards are made using the VA
hierarchy of SDVOSB/VOSB preferences in this subpart. Specifically, the
contracting officer will consider preferences for eligible SDVOSBs
first, then preferences for other eligible VOSBs.
(h) When an offer of an SDVOSB/VOSB prime contractor includes a
proposed team of small business subcontractors and specifically
identifies the first-tier subcontractor(s) in the proposal, the
contracting officer must consider the capabilities, past performance,
and experience of each first tier subcontractor that is part of the
team as the capabilities, past performance, and experience of the small
business prime contractor if the capabilities, past performance, and
experience of the small business prime does not independently
demonstrate capabilities and past performance necessary for award.
819.7002 Applicability.
Unless otherwise exempted by law, this subpart applies to VA
contracting activities and contracts (see FAR 2.101) including BPAs and
orders under FAR subpart 8.4 and acquisition of commercial products or
commercial services under FAR part 12. In addition, this subpart
applies to VA contractors, their subcontractors and to any Government
entity that has a contract, agreement, or other arrangement with the VA
to acquire goods and services on behalf of the VA (see 817.502). For
applicability and VA policy regarding priorities for use of mandatory
Government sources see 808.002.
819.7003 Eligibility.
(a) SDVOSB/VOSB size eligibility, challenges, and appeals are
governed by the Small Business Administration (SBA) regulations at 13
CFR parts 121, 125, and 134, except where directed otherwise by this
part or 38 CFR part 74.
(b) At the time of submission of offers/quotes, and at the time of
award of any contract, the offeror must represent to the contracting
officer that it is a--
(1) SDVOSB or VOSB eligible under this subpart;
(2) Small business concern under the North American Industry
Classification System (NAICS) code assigned to the acquisition; and
(3) Listed as a verified SDVOSB/VOSB on the VA's Vendor Information
Pages (VIP) at <a href="https://www.vetbiz.va.gov/vip/">https://www.vetbiz.va.gov/vip/</a>.
(c) A joint venture may be considered eligible if it meets the
requirements in 13 CFR part 125; and the joint venture is listed in the
VIP database.
(d) To receive a benefit under the Veterans First Contacting
Program, an otherwise eligible SDVOSB/VOSB must also meet SBA
requirements at 13 CFR parts 121 and 125, including the nonmanufacturer
rule requirements at 13 CFR 121.406(b) and limitations on
subcontracting at 13 CFR 125.6. The nonmanufacturer rule (see 13 CFR
121.406) and the limitations on subcontracting requirements apply to
all SDVOSB and VOSB set-aside and sole source contracts above the
micro-purchase threshold. An offeror shall submit a certification of
compliance to be considered eligible for any award under this part (see
819.7004).
(e) 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 from contracting
with the Department for a period of not less than five years. This
includes the debarment of all principals in the business. See 809.406-
270.
819.7004 Limitations on subcontracting compliance requirements.
(a) A contract awarded under this subpart is subject to the SBA
limitations on subcontracting requirements in 13 CFR 125.6, provided
that--
(1) Only VIP-listed SDVOSBs are considered eligible and/or
``similarly situated'' under an SDVOSB sole source or set-aside.
(2) A VOSB is subject to the same limitations on subcontracting
that apply to an SDVOSB.
(3) Any VIP-listed SDVOSB/VOSB is considered eligible and/or
``similarly situated'' under a VOSB sole source or set-aside.
(b) Pursuant to the authority of 38 U.S.C. 8127(k)(2), a
contracting officer may award a contract under this subpart only after
obtaining from the offeror a certification that the offeror will comply
with the limitations on subcontracting requirement as provided in the
solicitation and which shall be included in the resultant contract (see
819.7011).
(1) The formal certification must be completed, signed and returned
with the offeror's bid, quotation, or proposal.
(2) The Government will not consider offers for award from offerors
that do not provide the certification with their bid, quotation, or
proposal, and all such responses will be deemed ineligible for
evaluation and award.
(c) An otherwise eligible first tier subcontractor must meet the
NAICS size standard assigned by the prime contractor and be listed in
VIP to count as similarly situated. Any work that a first tier VIP-
listed subcontractor further subcontracts will count towards the
percent of subcontract amount that cannot be exceeded.
(d) An SDVOSB/VOSB awarded a contract on the basis of a set-aside,
sole source, or an evaluation preference is
[[Page 63009]]
required to comply with the limitations on subcontracting either by--
(1) The end of the base term, and then by the end of each
subsequent option period; or, by the end of the performance period for
each order issued under the contract, at the contracting officer's
discretion; and
(2) For an order set aside for SDVOSB/VOSB as described in 808.405
and FAR 16.505(b)(2)(i)(F), or for an order issued directly to an
SDVOSB/VOSB in accordance with FAR 19.504(c)(1)(ii), by the end of the
performance period for the order.
(e) The contracting officer may also, at their discretion, require
the contractor to demonstrate its compliance with the limitations on
subcontracting at any time during performance of the contract, and upon
completion of a contract if the information regarding such compliance
is not already available to the contracting officer. Evidence of
compliance includes, but is not limited to, invoices, copies of
subcontracts, or a list of the value of tasks performed.
(f) Pursuant to Public Law 116-183, the Office of the Small and
Disadvantaged Business Utilization (OSDBU) and Chief Acquisition
Officer (CAO), will implement a process to monitor compliance with the
requirement in this section. The OSDBU and CAO shall jointly refer any
violations or suspected violations to the VA Office of Inspector
General. This referral obligation does not relieve contracting officers
of their obligation to report suspected violations of law to the Office
of the Inspector General (OIG).
(1) If the Secretary or designee determines in consultation with
the Inspector General that an SDVOSB/VOSB awarded a contract pursuant
to 38 U.S.C. 8127 did not act in good faith with respect to the
requirements described in 819.7003(d), such SDVOSB/VOSB shall be
subject to any or all of the following--
(i) Referral to the VA Suspension and Debarment Committee;
(ii) A fine under section 16(g)(1) of the Small Business Act (15
U.S.C. 645(g)(1)); and
(iii) Prosecution for violating 18 U.S.C. 1001.
(2) The Inspector General shall report to the Congress annually on
the number of referred violations and suspected violations, and the
disposition of such violations, including the number of small business
concerns suspended or debarred from federal contracting or referred for
Department of Justice prosecution.
819.7005 Contracting order of priority.
(a) In determining the acquisition strategy applicable to a
procurement requirement not otherwise covered under 808.002, the
contracting officer shall observe the order of contracting preferences
in 38 U.S.C. 8127(h).
(b) Specifically, preferences for awarding contracts to small
business concerns shall be applied in the following order of priority:
(1) Contracts awarded to small business concerns owned and
controlled by Veterans with service-connected disabilities as provided
in this subpart.
(2) Contracts to small business concerns owned and controlled by
Veterans that are not covered by paragraph (b)(1) of this section as
provided in this subpart.
(3) Contracts awarded pursuant to--
(i) Section 8(a) of the Small Business Act (15 U.S.C. 637(a) as
provided in FAR subpart 19.8; or
(ii) Section 31 of the Small Business Act (15 U.S.C. 657a) as
provided in FAR subpart 19.13.
(4) Contracts awarded pursuant to any other small business set
aside contracting preference, with due deference to the priority for
awarding to women-owned small businesses as provided in FAR 19.203(b)
through (e) and FAR subpart 19.15.
819.7006 VA service-disabled veteran-owned small business set-aside
procedures.
(a) The contracting officer shall consider SDVOSB set-asides before
considering VOSB set-asides. Except as authorized by 808.002, 813.106,
819.7007, and 819.7008, the contracting officer shall set-aside a
contract action exceeding the micro-purchase threshold for competition
restricted to VIP-listed SDVOSB upon a reasonable expectation based on
market research that--
(1) Offers/quotations will be received from two or more eligible
VIP-listed SDVOSBs; and
(2) Award can be made at a fair and reasonable price that offers
the best value to the Government.
(b) When conducting SDVOSB set-asides, the contracting officer
shall ensure that--
(1) Offerors are registered and verified as eligible in the VIP
database at the time of submission of offers and at time of award; and
(2) Offerors affirmatively represent their SDVOSB and small
business status based on the size standard corresponding to the North
American Industrial Classification System (NAICS) code assigned to the
solicitation/contract, as set forth in 819.7003(b) or (c).
(c) If the contracting officer receives only one acceptable offer
at a fair and reasonable price from an eligible VIP-listed SDVOSB, the
contracting officer may make an award to that concern. If the
contracting officer receives no acceptable offers from eligible
SDVOSBs, the set-aside shall be withdrawn and the requirement, if still
valid, set aside for VOSB competition if warranted or otherwise
procured using the most appropriate strategy based on the results of
market research.
819.7007 VA veteran-owned small business set-aside procedures.
(a) The contracting officer shall consider SDVOSB set-asides before
considering VOSB set-asides. Except as authorized by 808.002, 813.106,
819.7007, and 819.7008, the contracting officer shall set aside a
contract action exceeding the micro-purchase threshold for competition
restricted to VIP-listed VOSBs upon a reasonable expectation based on
market research that--
(1) Offers/quotations will be received from two or more VIP-listed
VOSBs; and
(2) Award can be made at a fair and reasonable price that offers
the best value to the Government.
(b) When conducting VOSB set-asides, the contracting officer shall
ensure that--
(1) Offerors are registered and verified as eligible in the VIP
database at the time of submission of offers and at time of award; and
(2) Offerors affirmatively represent their SDVOSB/VOSB and small
business status based on the size standard corresponding to the NAICS
code assigned to the solicitation/contract (see 819.7003(b) and (c)).
(c) If the contracting officer receives only one acceptable offer
at a fair and reasonable price from an eligible VIP-listed VOSB in
response to a VOSB set-aside, the contracting officer may make an award
to that concern. If the contracting officer decides not to make an
award to the single acceptable offer received, or if the contracting
officer receives no acceptable offers from eligible VOSBs, the set-
aside shall be withdrawn and the requirement, if still valid, set aside
for other small business programs in accordance with 819.7005 or
otherwise procured using the most appropriate strategy based on the
results of market research.
819.7008 Sole source awards to verified service-disabled veteran-owned
small businesses.
(a) A contracting officer may award a contract to a VIP-listed
service-disabled veteran-owned small business (SDVOSB) using other than
competitive procedures provided--
[[Page 63010]]
(1) The anticipated award price of the contract (including options)
will not exceed $5 million;
(2) The requirement is synopsized and the required justification
pursuant to FAR 6.302-5(c)(2)(ii) is posted in accordance with FAR part
5;
(3) The SDVOSB has been determined to be a responsible contractor
with respect to performance; and
(4) In the estimation of the contracting officer contract award can
be made at a fair and reasonable price that offers best value to the
Government.
(b) The contracting officer's determination to make a sole source
award is a business decision wholly within the discretion of the
contracting officer. To ensure that opportunities are available to the
broadest number of SDVOSBs, this authority is to be used only when in
the best interest of the Government.
(c) A determination that only one SDVOSB can meet the requirement
is not required. However, in accordance with FAR 6.302-5(c)(2)(ii),
contracts awarded using this authority shall be supported by a written
justification and approval described in FAR 6.303 and 6.304, as
applicable.
(d) When conducting a SDVOSB sole source acquisition, the
contracting officer shall ensure the business meets eligibility
requirements in 819.7003.
(e) A procurement requirement estimated to exceed the legislative
threshold of $5 million shall not be split or subdivided to permit the
use of this SDVOSB sole source authority.
819.7009 Sole source awards to verified veteran-owned small
businesses.
(a) A contracting officer may award a contract to a VIP-listed
veteran-owned small business (VOSB) using other than competitive
procedures provided--
(1) The anticipated award price of the contract (including options)
will not exceed $5 million;
(2) The requirement is synopsized and the required justification
pursuant to FAR 6.302-5(c)(2)(ii) is posted in accordance with FAR part
5;
(3) The VOSB has been determined to be a responsible contractor
with respect to performance;
(4) In the estimation of the contracting officer contract award can
be made at a fair and reasonable price that offers best value to the
Government; and
(5) No responsible SDVOSB has been identified.
(b) The contracting officer's determination to make a sole source
award is a business decision wholly within the discretion of the
contracting officer. To ensure that opportunities are available to the
broadest number of VOSBs, this authority is to be used only when in the
best interest of the Government.
(c) A determination that only one VOSB can meet the requirement is
not required. However, in accordance with FAR 6.302-5(c)(2)(ii),
contracts awarded using this authority shall be supported by a written
justification and approval described in FAR 6.303 and 6.304, as
applicable.
(d) When conducting a VOSB sole source acquisition, the contracting
officer shall ensure the business meets eligibility requirements in
819.7003.
(e) A procurement requirement estimated to exceed the legislative
threshold of $5 million shall not be split or subdivided to permit the
use of this VOSB sole source authority.
819.7010 Tiered set-aside evaluation.
(a) Pursuant to the authority of 38 U.S.C. 8127 and under limited
circumstances as set forth in this section, contracting officers may
consider using a tiered set-aside evaluation approach to minimize
delays in the re-solicitation process.
(b) Tiered evaluation of offers is a procedure that may be used in
competitive negotiated acquisitions, including construction and
acquisitions for commercial products and commercial services when the
VA Rule of Two (see 802.101) determination indicates a set-aside is
required, but other circumstances preclude a confident conclusion that
an award can be made at the SDVOSB or VOSB tier. The contracting
officer--
(1) Solicits and receives offers from targeted tiers of small
business groups, with SDVOSB as the first tier and VOSB as the second
tier;
(2) Establishes a tiered order of priority for evaluating offers
that is specified in the solicitation; and
(3) If no award can be made at the first tier, evaluates offers at
the next lower tier, until award can be made.
(c) Market research, which shall be conducted and documented in
advance of issuing the solicitation, will inform which of the following
types of tiers will be included in the solicitation:
(1) Tiered evaluations limited to SDVOSBs or VOSBs;
(2) Tiered evaluations including 8(a) and HUBZone small businesses;
or
(3) Tiered evaluations including all other small business concerns.
(d) The tiered order of priority shall be consistent with 819.7005.
Consideration shall be given to HUBZone and 8(a) small business
concerns before evaluating offers from other small business concerns.
819.7011 Contract clauses.
(a) The contracting officer shall insert clause 852.219-73, VA
Notice of Total Set-Aside for Verified Service-Disabled Veteran-Owned
Small Businesses, or clause 852.219-74, VA Notice of Total Set-Aside
for Verified Veteran-Owned Small Businesses, as applicable, in
solicitations, orders and contracts that are set-aside, reserved,
evaluated or awarded under this subpart. This includes sole source
awards as well as multiple-award contracts when orders may be set aside
for SDVOSBs/VOSBs as described in 808.405 and FAR 19.504(c)(1)(ii).
(b) The contracting officer shall insert the clause at 852.219-75,
VA Notice of Limitations on Subcontracting--Certificate of Compliance
for Services and Construction, in solicitations and contracts for
services and construction, including BPAs, BOAs, and orders, for
acquisitions that are evaluated, set-aside, or awarded on a sole source
basis under this subpart. This includes orders awarded under multiple-
award contracts to SDVOSBs/VOSBs.
(c) The contracting officer shall insert the clause at 852.219-76,
VA Notice of Limitations on Subcontracting--Certificate of Compliance
for Supplies and Products, in solicitations and contracts for supplies
or products, including BPAs, BOAs, and orders, for acquisitions that
are to be awarded on the basis of an SDVOSB/VOSB set-aside, sole
source, or an evaluation preference under this subpart. This includes
orders awarded under multiple-award contracts to SDVOSBs/VOSBs. The
contracting officer shall tailor clause 852.219-76, and paragraph
(a)(2)(iii) of the clause, as appropriate.
Subpart 819.71--[Reserved]
PART 832--CONTRACT FINANCING
0
10. Revise the authority citation for part 832 to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1303; 41 U.S.C. 1702;
and 48 CFR 1.301 through 1.304.
Subpart 832.9 [Removed and Reserved]
0
11. Remove and reserve subpart 832.9.
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
12. Revise the authority citation for part 852 to read as follows:
Authority: 38 U.S.C. 8127-8128 and 8151-8153; 40 U.S.C. 121(c);
41 U.S.C. 1121(c)(3); 41 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR
1.301 through 1.304.
[[Page 63011]]
Subpart 852.2--Text of Provisions and Clauses
852.207-70 [Removed and Reserved]
0
13. Remove and reserve section 852.207-70.
0
14. Add Section 852.208-70 to read as follows:
852.208-70 Service-Disabled Veteran-Owned and Veteran-Owned Small
Business Evaluation Factors--Orders or BPAs.
As prescribed in 808.405-570, insert the following clause:
Service-Disabled Veteran-Owned and Veteran-Owned Small Business
Evaluation Factors--Orders or BPAs (Nov 2022)
(a) In an effort to increase contracting opportunities for
Veterans, depending on the evaluation factors included in the
solicitation, VA will evaluate responses received based on the
schedule Contractor's VIP-verified service-disabled veteran-owned
small business/veteran-owned small business (SDVOSB/VOSB) status;
and/or their proposed use of VIP-listed SDVOSB/VOSB as
subcontractors or teaming partners.
(b) To receive credit under this clause a contractor or
subcontractor must be listed, at time of submission of offer/quotes
and at time of award, as an eligible SDVOSB/VOSB in the Vendor
Information Pages (VIP) database at <a href="https://www.vetbiz.va.gov/vip/">https://www.vetbiz.va.gov/vip/</a>.
(c) A VIP-listed SDVOSB schedule holder will receive full
credit, and a VIP-listed VOSB schedule holder will receive partial
credit for the SDVOSB/VOSB status evaluation factor.
(d) Offerors other than SDVOSBs or VOSBs proposing to use VIP-
listed SDVOSBs/VOSBs as subcontractors/teaming partners, will
receive some consideration under this evaluation factor. To receive
consideration, offerors must provide in their proposals:
(1) The name(s) and contact information of the VIP-listed
SDVOSB(s)/VOSB(s) with whom they intend to team or subcontract.
(2) A brief description of the proposed team or subcontractor(s)
arrangement.
(3) The approximate dollar value of the proposed teaming
arrangements or subcontract(s).
(4) Evidence of teaming partner/subcontractor's VIP database
registration and verification.
(e) 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
15. Add section 852.208-71 to read as follows:
852.208-71 Service-Disabled Veteran-Owned and Veteran-Owned Small
Business Evaluation Factor Commitments--Orders and BPAs.
As prescribed in 808.405-570, insert the following clause:
Service-Disabled Veteran-Owned and Veteran-Owned Small Business
Evaluation Factor Commitments--Orders and BPAs (Nov 2022)
(a) The Contractor agrees, if selected on the basis of service-
disabled veteran-owned small business (SDVOSB) or veteran-owned
small business (VOSB) status, to comply with the eligibility
requirements in subpart 819.70, including the limitation on
subcontracting requirements at 13 CFR 125.6.
(b) The Contractor agrees, if selected for award on the basis of
teaming/subcontracting in accordance with 852.208-70, Service-
Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation
Factors--Orders and BPAs, to use the evaluated firm(s) as proposed
or if approved by contracting officer to substitute one or more VIP-
verified SDVOSB/VOSB for work of the same or similar value.
(c) 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)
852.219-9,852.219-10, and 852.219-11 [Removed]
0
16. Remove sections 852.219-9, 852.219-10, and 852.219-11.
0
17. Add section 852.219-70 to read as follows:
852.219-70 VA Small Business Subcontracting Plan Minimum Requirements.
As prescribed in 819.708, insert the following clause:
VA Small Business Subcontracting Plan Minimum Requirements (NOV 2022)
(a) This clause does not apply to small business concerns.
(b) If the offeror is required to submit an individual
subcontracting plan, the minimum goals for award of subcontracts to
VA verified service-disabled veteran-owned small business and
veteran-owned small business SDVOSB/VOSB shall be at least
commensurate with the Department's annual SDVOSB/VOSB subcontracting
goals.
(c) For a commercial plan, the minimum goals for award of
subcontracts to SDVOSB/VOSB shall be at least commensurate with the
Department's annual service-disabled veteran-owned small business
and veteran-owned small business subcontracting goals for the total
value of projected subcontracts to support the sales for the
commercial plan.
(d) To be credited toward goal achievements, SDVOSB/VOSBs must
be verified as eligible in the VA's Vendor Information Pages (VIP)
database at <a href="https://www.vetbiz.va.gov/vip/">https://www.vetbiz.va.gov/vip/</a>. A contractor may
reasonably rely on a subcontractor's status as shown in the VIP
database as of the date of subcontract award, provided the
contractor retains records of the results of the VIP database query.
(e) The Contractor shall annually submit a listing of SDVOSB/
VOSB (for which credit toward goal achievement is to be applied) for
review by personnel in the Office of Small and Disadvantaged
Business Utilization. Use VA Form 0896A, Report of Subcontracts to
Small and Veteran-Owned Business.
(f) 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
18. Revise section 852.219-71 to read as follows:
852.219-71 Notification of Competition Limited to Eligible 8(a)
Participants.
As prescribed in 819.811-370, when FAR 52.219-18, Notification of
Competition Limited to Eligible 8(a) Participants, is utilized, use
this clause in conjunction with the FAR clause.
Notification of Competition Limited to Eligible 8(A) Participants (NOV
2022)
Substitute paragraph (c) in FAR Clause 52.219-18 as follows:
(c) Any award resulting from this solicitation will be made
directly by the Contracting Officer to the successful 8(a) offeror.
Although SBA is not identified as such in the award form, SBA is
still the Prime Contractor. Contractor shall comply with the
limitations on subcontracting as provided in 13 CFR 125.6 and other
8(a) program requirements, as set forth in 13 CFR part 124.
(End of clause)
0
19. Revise section 852.219-72 to read as follows:
852.219-72 Notification of Section 8(a) Direct Award.
As prescribed in 819.811-370, paragraph (a), insert the following
clause:
Notification of Section 8(a) Direct Award (NOV 2022)
(a) Offers are solicited only from small business concerns
expressly certified by the Small Business Administration (SBA) for
participation in the SBA's 8(a) Program. By submission of its offer,
the Offeror represents that it is in good standing and that it meets
all of the criteria for participation in the program in accordance
with 13 CFR part 124.
(b) Any award resulting from this solicitation will be made
directly by the Contracting Officer to the successful 8(a) offeror.
Although SBA is not identified as such in the award form, SBA is
still the Prime Contractor.
(c) This contract is issued as a direct award between the
contracting activity and the 8(a) Contractor pursuant to the
Partnership Agreement (PA) between the Small Business Administration
(SBA) and the Department of Veterans Affairs.
(d) SBA retains responsibility for 8(a) certification, 8(a)
eligibility determinations
[[Page 63012]]
and related issues, and providing counseling and assistance to the
8(a) Contractor under the 8(a) program. The cognizant SBA district
office is:
-----------------------------------------------------------------------
[To be completed by the Contracting Officer at the time of award]
(e) The contracting activity is responsible for administering
the contract and taking any action on behalf of the Government under
the terms and conditions of the contract. However, the contracting
activity shall give advance notice to the SBA before it issues a
final notice terminating performance, either in whole or in part,
under the contract. The contracting activity shall obtain SBA's
approval prior to processing any novation agreement(s). The
contracting activity may assign contract administration functions to
a contract administration office.
(f) The Contractor agrees:
(1) To notify the Contracting Officer, simultaneous with its
notification to SBA (as required by SBA's 8(a) regulations), when
the owner or owners upon whom 8(a) eligibility is based plan to
relinquish ownership or control of the concern.
(2) Consistent with 15 U.S.C. 637(a)(21), transfer of ownership
or control shall result in termination of the contract for
convenience, unless SBA waives the requirement for termination prior
to the actual relinquishing of ownership and control.
(3) It will adhere to the requirements of 52.219-14, Limitations
of Subcontracting and other requirements in 13 CFR part 124 and 13
CFR 125.6, as applicable
(g) Any proposed joint venture involving an 8(a) Participant
must be approved by SBA before contracts are awarded.
(End of clause)
0
20. Add section 852.219-73 to read as follows:
852.219-73 VA Notice of Total Set-Aside for Verified Service-Disabled
Veteran-Owned Small Businesses.
As prescribed in 819.7011, insert the following clause:
VA Notice Of Total set-Aside For Verified Service-Disabled Veteran-
Owned Small Businesses (NOV 2022)
(a) Definition. for the Department of Veterans Affairs,
``Service-disabled Veteran-owned small business concern or SDVOSB'':
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
service-disabled Veterans or, in the case of any publicly owned
business, not less than 51 percent of the stock of which is owned by
one or more service-disabled Veterans or eligible surviving spouses
(see VAAR 802.201, Surviving Spouse definition);
(ii) The management and daily business operations of which are
controlled by one or more service-disabled Veterans (or eligible
surviving spouses) or, in the case of a service-disabled Veteran
with permanent and severe disability, the spouse or permanent
caregiver of such Veteran;
(iii) The business meets Federal small business size standards
for the applicable North American Industry Classification System
(NAICS) code identified in the solicitation document;
(iv) The business has been verified for ownership and control
pursuant to 38 CFR part 74 and is listed in VA's Vendor Information
Pages (VIP) database at <a href="https://www.vetbiz.va.gov/vip/">https://www.vetbiz.va.gov/vip/</a>; and
(v) The business will comply with VAAR subpart 819.70 and Small
Business Administration (SBA) regulations regarding small business
size and government contracting programs at 13 CFR parts 121 and
125, provided that any reference therein to a service-disabled
veteran-owned small business concern or SDVO SBC, is to be construed
to apply to a VA verified and VIP-listed SDVOSB, unless otherwise
stated in this clause.
(2) The term ``Service-disabled Veteran'' means a Veteran, as
defined in 38 U.S.C. 101(2), with a disability that is service-
connected, as defined in 38 U.S.C. 101(16).
(3) The term ``small business concern'' has the meaning given
that term under section 3 of the Small Business Act (15 U.S.C. 632).
(4) The term ``small business concern owned and controlled by
Veterans with service-connected disabilities'' has the meaning given
the term ``small business concern owned and controlled by service-
disabled veterans'' under section 3(q)(2) of the Small Business Act
(15 U.S.C. 632(q)(2)), except that for a VA contract the firm must
be listed in the VIP database (see paragraph (a)(1)(iv) of this
clause).
(b) General. (1) Offers are solicited only from VIP-listed
SDVOSBs. Offers received from entities that are not VIP-listed
SDVOSBs at the time of offer shall not be considered.
(2) Any award resulting from this solicitation shall be made to
a VIP-listed SDVOSB who is eligible at the time of submission of
offer(s) and at the time of award.
(3) The requirements in this clause apply to any contract, order
or subcontract where the firm receives a benefit or preference from
its designation as an SDVOSB, including set-asides, sole source
awards, and evaluation preferences.
(c) Representation. Pursuant to 38 U.S.C. 8127(e), only VIP-
listed SDVOSBs are considered eligible to receive award of a
resulting contract. By submitting an offer, the prospective
contractor represents that it is an eligible SDVOSB as defined in
this clause, 38 CFR part 74, and VAAR subpart 819.70.
(d) Agreement. When awarded a contract action, including orders
under multiple-award contracts, an SDVOSB agrees that in the
performance of the contract, the SDVOSB shall comply with
requirements in VAAR subpart 819.70 and SBA regulations on small
business size and government contracting programs at 13 CFR part 121
and part 125, including the non-manufacturer rule and limitations on
subcontracting requirements in 13 CFR 121.406(b) and 13 CFR 125.6.
Unless otherwise stated in this clause, a requirement in 13 CFR
parts 121 and 125 that applies to an SDVO SBC, is to be construed to
also apply to a VIP-listed SDVOSB. For the purpose of limitations on
subcontracting, only VIP-listed SDVOSBs (including independent
contractors) shall be considered eligible and/or ``similarly
situated'' (i.e., a firm that has the same small business program
status as the prime contractor). An otherwise eligible firm further
agrees to comply with the required certification requirements in
this solicitation (see 852.219-75 or 852.219-76 as applicable).
These requirements are summarized as follows:
(1) Services. In the case of a contract for services (except
construction), the SDVOSB prime contractor will not pay more than
50% of the amount paid by the government to the prime for contract
performance to firms that are not VIP-listed SDVOSBs (excluding
direct costs to the extent they are not the principal purpose of the
acquisition and the SDVOSB/VOSB does not provide the service, such
as airline travel, cloud computing services, or mass media
purchases). When a contract includes both services and supplies, the
50 percent limitation shall apply only to the service portion of the
contract
(2) Supplies/products. (i) In the case of a contract for
supplies or products (other than from a non-manufacturer of such
supplies), the SDVOSB prime contractor will not pay more than 50% of
the amount paid by the government to the prime for contract
performance, excluding the cost of materials, to firms that are not
VIP-listed SDVOSBs. When a contract includes both supply and
services, the 50 percent limitation shall apply only to the supply
portion of the contract.
(ii) In the case of a contract for supplies from a non-
manufacturer, the SDVOSB prime contractor will supply the product of
a domestic small business manufacturer or processor, unless a waiver
as described in 13 CFR 121.406(b)(5) has been granted. Refer to 13
CRF 125.6(a)(2)(ii) for guidance pertaining to multiple item
procurements.
(3) General construction. In the case of a contract for general
construction, the SDVOSB prime contractor will not pay more than 85%
of the amount paid by the government to the prime for contract
performance, excluding the cost of materials, to firms that are not
VIP-listed SDVOSBs.
(4) Special trade construction contractors. In the case of a
contract for special trade contractors, no more than 75% of the
amount paid by the government to the prime for contract performance,
excluding the cost of materials, may be paid to firms that are not
VIP-listed SDVOSBs.
(5) Subcontracting. An SDVOSB must meet the NAICS size standard
assigned by the prime contractor and be listed in VIP to count as
similarly situated. Any work that a first tier VIP-listed SDVOSB
subcontractor further subcontracts will count towards the percent of
subcontract amount that cannot be exceeded. For supply or
construction contracts, the cost of materials is excluded and not
considered to be subcontracted. When a contract includes both
services and supplies, the 50 percent limitation shall apply only to
the portion of the contract with the preponderance of the
expenditure upon which the assigned NAICS is based. For information
and more specific requirements, refer to 13 CFR 125.6.
(e) Required limitations on subcontracting compliance
measurement period. An SDVOSB shall comply with the limitations on
subcontracting as follows:
[[Page 63013]]
[Contracting Officer check as appropriate.]
__By the end of the base term of the contract or order, and then
by the end of each subsequent option period; or
__By the end of the performance period for each order issued
under the contract.
(f) Joint ventures. A joint venture may be considered eligible
as an SDVOSB if the joint venture is listed in VIP and complies with
the requirements in 13 CFR 125.18(b), provided that any requirement
therein that applies to an SDVO SBC is to be construed to apply to a
VIP-listed SDVOSB. A joint venture agrees that, in the performance
of the contract, the applicable percentage specified in paragraph
(d) of this clause will be performed by the aggregate of the joint
venture participants.
(g) Precedence. The VA Veterans First Contracting Program, as
defined in VAAR 802.101, subpart 819.70, and this clause, takes
precedence over any inconsistencies between the requirements of the
SBA Program for SDVO SBCs, and the VA Veterans First Contracting
Program.
(h) Misrepresentation. Pursuant to 38 U.S.C. 8127(g), any
business concern, including all its principals, that is determined
by VA to have willfully and intentionally misrepresented a company's
SDVOSB status is subject to debarment from contracting with the
Department for a period of not less than five years (see VAAR
809.406-2 Causes for Debarment).
(End of clause)
0
21. Add section 852.219-74 to read as follows:
852.219-74 VA Notice of Total Set-Aside for Verified Veteran-Owned
Small Businesses.
As prescribed in 819.7011, insert the following clause:
VA Notice of Total Set-Aside for Verified Veteran-Owned Small
Businesses (NOV 2022)
(a) Definition. For the Department of Veterans Affairs,
``Veteran-owned small business or VOSB'':
(1) Means a small business concern--
(i) Not less than 51 percent of which is owned by one or more
Veterans or, in the case of any publicly owned business, not less
than 51 percent of the stock of which is owned by one or more
Veteran(s);
(ii) The management and daily business operations of which are
controlled by one or more Veteran(s);
(iii) The business meets Federal small business size standards
for the applicable North American Industry Classification System
(NAICS) code identified in the solicitation document;
(iv) The business has been verified for ownership and control
pursuant to 38 CFR part 74 and is listed in VA's Vendor Information
Pages (VIP) database at: <a href="https://www.vetbiz.va.gov/vip/">https://www.vetbiz.va.gov/vip/</a>; and
(v) The business will comply with VAAR subpart 819.70 and Small
Business Administration (SBA) regulations regarding small business
size and government contracting programs at 13 CFR parts 121 and
125, provided that any requirement therein that applies to a
service-disabled veteran-owned small business concern or SDVO SBC,
is to be construed to also apply to a VA verified and VIP-listed
VOSB, unless otherwise stated in this clause.
(vi) The term VOSB includes VIP-listed service-disabled veteran-
owned small businesses (SDVOSB).
(2) ``Veteran'' is defined in 38 U.S.C. 101(2).
(3) The term ``small business concern'' has the meaning given
that term under section 3 of the Small Business Act (15 U.S.C. 632).
(4) The term ``small business concern owned and controlled by
Veterans'' has the meaning given that term under section 3(q)(3) of
the Small Business Act (15 U.S.C. 632(q)(3)), except that for a VA
contract the firm must be listed in the VIP database (see paragraph
(a)(1)(iv) of this clause).
(b) General. (1) Offers are solicited only from VIP-listed
VOSBs, including VIP-listed SDVOSBs. Offers received from entities
that are not VIP-listed at the time of offer shall not be
considered.
(2) Any award resulting from this solicitation shall be made
only to a VIP-listed VOSB who is eligible at the time of submission
of offer(s) and at time of award.
(3) The requirements in this clause apply to any contract, order
or subcontract where the firm receives a benefit or preference from
its designation as a VOSB, including set-asides, sole source awards,
and evaluation preferences.
(c) Representation. Pursuant to 38 U.S.C. 8127(e), only VIP-
listed VOSBs are considered eligible to receive award of a resulting
contract. By submitting an offer, the prospective contractor
represents that it is an eligible VOSB as defined in this clause, 38
CFR part 74, and VAAR subpart 819.70.
(d) Agreement. When awarded a contract action, including orders
under multiple-award contracts, a VOSB agrees that in the
performance of the contract, the VOSB shall comply with requirements
in VAAR subpart 819.70 and SBA regulations on small business size
and government contracting programs at 13 CFR parts 121 and 125,
including the non-manufacturer rule and limitations on-
subcontracting requirements in 13 CFR 121.406(b) and 125.6. Unless
otherwise stated in this clause, any requirement in 13 CFR parts 121
and 125 that applies to an SDVO SBC, is to be construed to also
apply to a VIP-listed VOSB. For the purpose of the limitations on
subcontracting, only VIP-listed VOSB, (including independent
contractors) is considered eligible and/or ``similarly situated''
(i.e., a firm that has the same small business program status as the
prime contractor). An otherwise eligible firm further agrees to
comply with the required certification requirements in this
solicitation (see 852.219-75 and/or 852.219-76 as applicable). These
requirements are summarized as follows:
(1) Services. In the case of a contract for services (except
construction), the VOSB prime contractor will not pay more than 50%
of the amount paid by the government to the prime for contract
performance to firms that are not VIP-listed VOSBs (excluding direct
costs to the extent they are not the principal purpose of the
acquisition and the SDVOSB/VOSB does not provide the service, such
as airline travel, cloud computing services, or mass media
purchases). When a contract includes both services and supplies, the
50 percent limitation shall apply only to the service portion of the
contract.
(2) Supplies/products. (i) In the case of a contract for
supplies or products (other than from a non-manufacturer of such
supplies), the VOSB prime contractor will not pay more than 50% of
the amount paid by the government to the prime for contract
performance, excluding the cost of materials, to firms that are not
VIP-listed VOSBs. When a contract includes both supply and services,
the 50 percent limitation shall apply only to the supply portion of
the contract.
(ii) In the case of a contract for supplies from a non-
manufacturer, the VOSB prime contractor will supply the product of a
domestic small business manufacturer or processor, unless a waiver
as described in 13 CFR 121.406(b)(5) has been granted. Refer to 13
CFR 125.6(a)(2)(ii) for guidance pertaining to multiple item
procurements.
(3) General construction. In the case of a contract for general
construction, the VOSB prime contractor will not pay more than 85%
of the amount paid by the government to the prime for contract
performance, excluding the cost of materials, to firms that are not
VIP-listed VOSBs.
(4) Special trade construction contractors. In the case of a
contract for special trade contractors, no more than 75% of the
amount paid by the government to the prime for contract performance,
excluding the cost of materials, may be paid to firms that are not
VIP-listed VOSBs.
(5) Subcontracting. A VOSB must meet the NAICS size standard
assigned by the prime contractor and be listed in VIP to count as
similarly situated. Any work that a first tier VIP-listed VOSB
subcontractor further subcontracts will count towards the percent of
subcontract amount that cannot be exceeded. For supply or
construction contracts, the cost of materials is excluded and not
considered to be subcontracted. When a contract includes both
services and supplies, the 50 percent limitation shall apply only to
the portion of the contract with the preponderance of the
expenditure upon which the assigned NAICS is based. For information
and more specific requirements, refer to 13 CFR 125.6.
(e) Required limitations on subcontracting compliance
measurement period. A VOSB shall comply with the limitations on
subcontracting as follows:
[Contracting Officer check as appropriate.]
__By the end of the base term of the contract or order, and then
by the end of each subsequent option period; or
__By the end of the performance period for each order issued
under the contract.
(f) Joint ventures. A joint venture may be considered eligible
as a VOSB if the joint venture is listed in VIP and complies with
the requirements in 13 CFR 125.18(b), provided that any requirement
therein that applies to an SDVO SBC is to be construed to also apply
to a VIP-listed VOSB. A joint venture agrees that, in the
performance of the
[[Page 63014]]
contract, the applicable percentage specified in paragraph (d) of
this clause will be performed by the aggregate of the joint venture
participants.
(g) Precedence. The VA Veterans First Contracting Program, as
defined in VAAR 802.10, subpart 819.70, and this clause, takes
precedence over any inconsistencies between the requirements of the
SBA Program for SDVO SBCs and the VA Veterans First Contracting
Program.
(h) Misrepresentation. Pursuant to 38 U.S.C. 8127(g), any
business concern, including all its principals, that is determined
by VA to have willfully and intentionally misrepresented a company's
VOSB status is subject to debarment from contracting with the
Department for a period of not less than five years (see VAAR
809.406-2, Causes for Debarment).
(End of clause)
0
22. Add section 852.219-75 to read as follows:
852.219-75 VA Notice of Limitations on Subcontracting--Certificate of
Compliance for Services and Construction.
As prescribed in 819.7011(b), insert the following clause:
VA Notice of Limitations on Subcontracting--Certificate of Compliance
for Services and Construction (NOV 2022)
(a) Pursuant to 38 U.S.C. 8127(k)(2), the offeror certifies
that--
(1) If awarded a contract (see FAR 2.101 definition), it will
comply with the limitations on subcontracting requirement as
provided in the solicitation and the resultant contract, as follows:
[Contracting Officer check the appropriate box below based on the
predominant NAICS code assigned to the instant acquisition as set
forth in FAR 19.102.]
(i) [square] Services. In the case of a contract for services
(except construction), the contractor will not pay more than 50% of
the amount paid by the government to it to firms that are not VIP-
listed SDVOSBs as set forth in 852.219-73 or VOSBs as set forth in
852.219-74. Any work that a similarly situated VIP-listed
subcontractor further subcontracts will count towards the 50%
subcontract amount that cannot be exceeded. Other direct costs may
be excluded to the extent they are not the principal purpose of the
acquisition and small business concerns do not provide the service
as set forth in 13 CFR 125.6.
(ii) [square] General construction. In the case of a contract
for general construction, the contractor will not pay more than 85%
of the amount paid by the government to it to firms that are not
VIP-listed SDVOSBs as set forth in 852.219-73or VOSBs as set forth
in 852.219-74. Any work that a similarly situated VIP-listed
subcontractor further subcontracts will count towards the 85%
subcontract amount that cannot be exceeded. Cost of materials are
excluded and not considered to be subcontracted.
(iii) [square] Special trade construction contractors. In the
case of a contract for special trade contractors, the contractor
will not pay more than 75% of the amount paid by the government to
it to firms that are not VIP-listed SDVOSBs as set forth in 852.219-
73 or VOSBs as set forth in 852.219-74. Any work that a similarly
situated subcontractor further subcontracts will count towards the
75% subcontract amount that cannot be exceeded. Cost of materials
are excluded and not considered to be subcontracted.
(2) The offeror acknowledges that this certification concerns a
matter within the jurisdiction of an Agency of the United States.
The offeror further acknowledges that this certification is subject
to Title 18, United States Code, Section 1001, and, as such, a
false, fictitious, or fraudulent certification may render the
offeror subject to criminal, civil, or administrative penalties,
including prosecution.
(3) If VA determines that an SDVOSB/VOSB awarded a contract
pursuant to 38 U.S.C. 8127 did not act in good faith, such SDVOSB/
VOSB shall be subject to any or all of the following:
(i) Referral to the VA Suspension and Debarment Committee;
(ii) A fine under section 16(g)(1) of the Small Business Act (15
U.S.C. 645(g)(1)); and
(iii) Prosecution for violating section 1001 of title 18.
(b) The offeror represents and understands that by submission of
its offer and award of a contract it may be required to provide
copies of documents or records to VA that VA may review to determine
whether the offeror complied with the limitations on subcontracting
requirement specified in the contract. Contracting officers may, at
their discretion, require the contractor to demonstrate its
compliance with the limitations on subcontracting at any time during
performance and upon completion of a contract if the information
regarding such compliance is not already available to the
contracting officer. Evidence of compliance includes, but is not
limited to, invoices, copies of subcontracts, or a list of the value
of tasks performed.
(c) The offeror further agrees to cooperate fully and make
available any documents or records as may be required to enable VA
to determine compliance with the limitations on subcontracting
requirement. The offeror understands that failure to provide
documents as requested by VA may result in remedial action as the
Government deems appropriate.
(d) Offeror completed certification/fill-in required. The formal
certification must be completed, signed and returned with the
offeror's bid, quotation, or proposal. The Government will not
consider offers for award from offerors that do not provide the
certification, and all such responses will be deemed ineligible for
evaluation and award.
Certification
I hereby certify that if awarded the contract, [insert name of
offeror] will comply with the limitations on subcontracting
specified in this clause and in the resultant contract. I further
certify that I am authorized to execute this certification on behalf
of [insert name of offeror].
Printed Name of Signee:------------------------------------------------
Printed Title of Signee:-----------------------------------------------
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
Company Name and Address:----------------------------------------------
(End of clause)
0
23. Add section 852.219-76 to read as follows:
852.219-76 VA Notice of Limitations on Subcontracting--Certificate of
Compliance for Supplies and Products.
As prescribed in 819.7011(c), insert the following clause. The
contracting officer shall tailor the clause in paragraph (a)(2)(iii) as
appropriate:
VA Notice of Limitations on Subcontracting--Certificate of Compliance
for Supplies and Products (NOV 2022)
(a) Pursuant to 38 U.S.C. 8127(k)(2), the offeror certifies
that--
(1) If awarded a contract (see FAR 2.101 definition), it will
comply with the limitations on subcontracting requirement as
provided in the solicitation and the resultant contract, as follows:
[Offeror check the appropriate box]
(i) [square] In the case of a contract for supplies or products
(other than from a non-manufacturer of such supplies), it will not
pay more than 50% of the amount paid by the government to it to
firms that are not VIP-listed SDVOSBs as set forth in 852.219-73 or
VOSBs as set forth in 852.219-74. Any work that a similarly situated
VIP-listed subcontractor further subcontracts will count towards the
50% subcontract amount that cannot be exceeded. Cost of materials
are excluded and not considered to be subcontracted.
(ii) [square] In the case of a contract for supplies from a
nonmanufacturer, it will supply the product of a domestic small
business manufacturer or processor, unless a waiver as described in
13 CFR 121.406(b)(5) is granted. The offeror understands that, as
provided in 13 CFR 121.406(b)(7), such a waiver has no effect on
requirements external to the Small Business Act, such as the Buy
American Act or the Trade Agreements Act.
(2) Manufacturer or nonmanufacturer representation and
certification. [Offeror fill-in--check each applicable box below.
The offeror must select the applicable provision below, identifying
itself as either a manufacturer or nonmanufacturer]:
(i) [square] Manufacturer or producer. The offeror certifies
that it is the manufacturer or producer of the end item being
procured, and the end item is manufactured or produced in the United
States, in accordance with paragraph (a)(1)(i).
(ii) [square] Nonmanufacturer. The offeror certifies that it
qualifies as a nonmanufacturer in accordance with the requirements
of 13 CFR 121.406(b) and paragraph (a)(1)(ii). The offeror further
certifies it meets each element below as required in order to
qualify as a nonmanufacturer. [Offeror fill-in--check each box
below.]
[square] The offeror certifies that it does not exceed 500
employees (or 150 employees for the Information Technology Value
Added Reseller exception to NAICS code 541519, which is found at 13
CFR 121.201, footnote 18).
[[Page 63015]]
[square] The offeror certifies that it is primarily engaged in
the retail or wholesale trade and normally sells the type of item
being supplied.
[square] The offeror certifies that it will take ownership or
possession of the item(s) with its personnel, equipment, or
facilities in a manner consistent with industry practice.
(iii) [square] The offeror certifies that it will supply the end
item of a small business manufacturer, processor, or producer made
in the United States, unless a waiver as provided in 13 CFR
121.406(b)(5) has been issued by SBA. [Contracting Officer fill-in
or removal (see 13 CFR 121.1205). This requirement must be included
for a single end item. However, if SBA has issued an applicable
waiver of the nonmanufacturer rule for the end item, this
requirement must be removed in the final solicitation or contract.]
or [Contracting officer tailor clause to remove one or other
block under subparagraph (iii).]
[square] If this is a multiple item acquisition, the offeror
certifies that at least 50% of the estimated contract value is
composed of items that are manufactured by small business concerns.
[Contracting Officer fill-in or removal. See 13 CFR 121.406(d) for
multiple end items. If SBA has issued an applicable nonmanufacturer
rule waiver, this requirement must be removed in the final
solicitation or contract.]
(3) The offeror acknowledges that this certification concerns a
matter within the jurisdiction of an Agency of the United States.
The offeror further acknowledges that this certification is subject
to Title 18, United States Code, Section 1001, and, as such, a
false, fictitious, or fraudulent certification may render the
offeror subject to criminal, civil, or administrative penalties,
including prosecution.
(4) If VA determines that an SDVOSB/VOSB awarded a contract
pursuant to 38 U.S.C. 8127 did not act in good faith, such SDVOSB/
VOSB shall be subject to any or all of the following:
(i) Referral to the VA Suspension and Debarment Committee;
(ii) A fine under section 16(g)(1) of the Small Business Act (15
U.S.C. 645(g)(1)); and
(iii) Prosecution for violating section 1001 of title 18.
(b) The offeror represents and understands that by submission of
its offer and award of a contract it may be required to provide
copies of documents or records to VA that VA may review to determine
whether the offeror complied with the limitations on subcontracting
requirement specified in the contract or to determine whether the
offeror qualifies as a manufacturer or nonmanufacturer in compliance
with the limitations on subcontracting requirement. Contracting
officers may, at their discretion, require the contractor to
demonstrate its compliance with the limitations on subcontracting at
any time during performance and upon completion of a contract if the
information regarding such compliance is not already available to
the contracting officer. Evidence of compliance includes, but is not
limited to, invoices, copies of subcontracts, or a list of the value
of tasks performed.
(c) The offeror further agrees to cooperate fully and make
available any documents or records as may be required to enable VA
to determine compliance. The offeror understands that failure to
provide documents as requested by VA may result in remedial action
as the Government deems appropriate.
(d) Offeror completed certification/fill-in required. The formal
certification must be completed, signed and returned with the
offeror's bid, quotation, or proposal. The Government will not
consider offers for award from offerors that do not provide the
certification, and all such responses will be deemed ineligible for
evaluation and award.
Certification
I hereby certify that if awarded the contract, [insert name of
offeror] will comply with the limitations on subcontracting
specified in this clause and in the resultant contract. I further
certify that I am authorized to execute this certification on behalf
of [insert name of offeror].
Printed Name of Signee:------------------------------------------------
Printed Title of Signee:-----------------------------------------------
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
Company Name and Address:----------------------------------------------
-----------------------------------------------------------------------
(End of clause)
PART 853--FORMS
0
24. The authority citation for part 853 continues to read as follows:
Authority: 40 U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR 1.301
through 1.304.
Subpart 853.2--Prescription of Forms
0
25. Add section 853.219 to read as follows:
853.219 Small business forms.
(a) VA Form 2268, Small Business Program and Contract Bundling
Review. VA Form 2268 is prescribed for use to document actions and
recommendations related to small business, as specified in 819.202.
(b) VA Form 0896A, Report of Subcontracts to Small and Veteran-
Owned Businesses. VA Form 0896A is prescribed for use to submit
subcontracting information, as specified in 819.704-70.
(c) Availability. Forms are available at <a href="https://www.va.gov/vaforms">https://www.va.gov/vaforms</a>.
[FR Doc. 2022-21541 Filed 10-17-22; 8:45 am]
BILLING CODE 8320-01-P
</pre></body>
</html>Indexed from Federal Register on October 18, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.