45374 Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules 

DEPARTMENT OF VETERANS 

AFFAIRS 

48 CFR Parts 801, 815, 816, 837, 849, 

852, and 871 

RIN 2900–AQ20 

VA Acquisition Regulation: 

Contracting by Negotiation; Service 

Contracting 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is proposing to amend and 

update its VA Acquisition Regulation 

(VAAR) in phased increments to revise 

or remove any policy superseded by 

changes in the Federal Acquisition 

Regulation (FAR), to remove procedural 

guidance internal to VA into the VA 

Acquisition Manual (VAAM), and to 

incorporate any new agency specific 

regulations or policies. These changes 

seek to streamline and align the VAAR 

with the FAR and remove outdated and 

duplicative requirements and reduce 

burden on contractors. The VAAM 

incorporates portions of the removed 

VAAR as well as other internal agency 

acquisition policy. VA will rewrite 

certain parts of the VAAR and VAAM, 

and as VAAR parts are rewritten, we 

will publish them in the Federal 

Register. VA will combine related 

topics, as appropriate. In particular, this 

rulemaking revises VAAR concerning 

Contracting by Negotiation and Service 

Contracting, as well as affected parts 

covering the Department of Veterans 

Affairs Acquisition Regulation System, 

Types of Contracts, Termination of 

Contracts, Solicitation Provisions and 

Contract Clauses, and Loan Guaranty 

and Vocational Rehabilitation and 

Employment Programs. 

DATES: Comments must be received on 

or before November 6, 2018 to be 

considered in the formulation of the 

final rule. 

ADDRESSES: Written comments may be 

submitted through 

www.Regulations.gov; by mail or handdelivery to Director, Regulation Policy 

and Management (00REG), Department 

of Veterans Affairs, 810 Vermont 

Avenue NW, Room 1063B, Washington, 

DC 20420; or by fax to (202) 273–9026. 

(This is not a toll-free number.) 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AQ20—VA Acquisition Regulation: 

Contracting by Negotiation; Service 

Contracting.’’ Copies of comments 

received will be available for public 

inspection in the Office of Regulation 

Policy and Management, Room 1063B, 

between the hours of 8:00 a.m. and 4:30 

p.m., Monday through Friday (except 

holidays). Please call (202) 461–4902 for 

an appointment. (This is not a toll-free 

number.) In addition, during the 

comment period, comments may be 

viewed online through the Federal 

Docket Management System (FDMS) at 

www.Regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Ricky L. Clark, Senior Procurement 

Analyst, Procurement Policy and 

Warrant Management Services, 003A2A, 

425 I Street NW, Washington, DC 20001, 

(202) 632–5276. This is not a toll-free 

number. 

SUPPLEMENTARY INFORMATION:

Background 

This rulemaking is issued under the 

authority of the Office of Federal 

Procurement Policy (OFPP) Act which 

provides the authority for an agency 

head to issue agency acquisition 

regulations that implement or 

supplement the FAR. 

VA is proposing to revise the VAAR 

to add new policy or regulatory 

requirements and to remove any 

redundant guidance and guidance that 

is applicable only to VA’s internal 

operating processes or procedures. 

Codified acquisition regulations may be 

amended and revised only through 

rulemaking. All amendments, revisions, 

and removals have been reviewed and 

concurred with by an Integrated Product 

Team of agency stakeholders. 

The VAAR uses the regulatory 

structure and arrangement of the FAR 

and headings and subject areas are 

consistent with the FAR content. The 

VAAR is divided into subchapters, parts 

(each of which covers a separate aspect 

of acquisition), subparts, and sections. 

The Office of Federal Procurement 

Policy Act, as codified in 41 U.S.C.1707, 

provides the authority for the Federal 

Acquisition Regulation and for the 

issuance of agency acquisition 

regulations consistent with the FAR. 

When Federal agencies acquire 

supplies and services using 

appropriated funds, the purchase is 

governed by the FAR, set forth at title 

48 Code of Federal Regulations (CFR), 

chapter 1, parts 1 through 53, and the 

agency regulations that implement and 

supplement the FAR. The VAAR is set 

forth at title 48 CFR, chapter 8, parts 801 

to 873. 

Discussion and Analysis 

The VA proposes to make the 

following changes to the VAAR in this 

phase of its revision and streamlining 

initiative. For procedural guidance cited 

below that is proposed to be deleted 

from the VAAR, each section cited for 

removal has been considered for 

inclusion in VA’s internal agency 

operating procedures in accordance 

with FAR 1.301(a)(2). Similarly, 

delegations of authorities that are 

removed from the VAAR will be 

included in VA Acquisition Manual 

(VAAM) as internal agency guidance. 

VAAR Part 801—Department of 

Veterans Affairs Acquisition Regulation 

System 

In the table in 801.106, we propose to 

amend the clause number 852.237–7 to 

852.237–70 to conform to the FAR 

numbering system for agency 

regulations. 

VAAR Part 815—Contracting by 

Negotiation 

We propose to add 41 U.S.C. 1702 as 

an authority for part 815, which 

addresses the acquisition planning and 

management responsibilities of Chief 

Acquisition Officers and Senior 

Procurement Executives, to include 

implementation of unique procurement 

policies, regulations and standards of 

the executive agency. 

We also propose to add 41 U.S.C. 

1121(c)(3) which is from Title 41, Public 

Contracts, Positive Law codification that 

speaks to the authority of an executive 

agency under another law to prescribe 

policies, regulations, procedures, and 

forms for procurement that are subject 

to the authority conferred in the cited 

section, as well as other sections of Title 

41 as shown therein. 

In subpart 815.3, Source Selection, we 

propose to remove 815.303, 

Responsibilities, to the VAAM since it 

contains procedural guidance that is 

internal to the VA and will be updated 

and moved to the VA Acquisition 

Manual (VAAM). 

We propose to remove 815.304, 

Evaluation factors and significant 

subfactors, and move it to the VAAM as 

it contains procedural guidance that is 

internal to the VA and will be updated 

and moved to the VAAM. 

We propose to amend section 

815.304–70, Evaluation factor 

commitments, by deleting paragraph 

(a)(4). This paragraph was removed 

because the VA Mentor-Prote ́ge ́ Program 

is no longer current. We propose to 

revise the section by removing 

paragraph (b) and moving it to the 

VAAM as it contains procedural 

information. We also propose to 

renumber the paragraphs of the section 

accordingly. 

We propose to amend section 

815.304–71, Solicitation provision and 

clause, to make a correction to add in 

the words ‘‘Small Business’’ that are 


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missing in the current version of the 

VAAR. 

In subpart 815.3, Source Selection, we 

propose to add a new section, 815.370, 

Only one offer. This is a newly 

developed section for VA. The inclusion 

of this policy gives the contracting 

officer the ability to re-solicit for an 

action if they only receive one offer and 

if the solicitation gave offerors less than 

30 days to submit a proposal. The 

following sections have been added to 

this section and provide additional 

guidance pertaining to this new policy: 

815.370–1, Policy; 815.370–2, Promote 

competition; 815.370–3, Fair and 

reasonable price, 815.370–4, Exceptions 

and 815.370–5, Solicitation provision. 

These subsections under section 

815.370 explain that it is VA policy, if 

only one offer is received in response to 

a competitive solicitation, to take action 

to promote competition and ensure that 

the price is fair and reasonable. It 

describes the necessary steps to meet 

these requirements. Section 815.370–4, 

Exceptions, cites the exceptions to the 

policy and 815.370–5, Solicitation 

provision, prescribes the inclusion of 

852.215–72, Notice of Intent to Resolicit, in competitive solicitations, 

including solicitations using FAR part 

12 procedures for the acquisition of 

commercial items that will be solicited 

for fewer than 30 days, unless an 

exception at 815.370–4 applies. 

We propose to remove subpart 815.4, 

Contract Pricing, as it contains 

procedural guidance that is internal to 

the VA and will therefore be moved to 

the VAAM. 

We propose to remove subpart 815.6, 

Unsolicited Proposals, as it contains 

procedural guidance that is internal to 

the VA and will therefore be moved to 

the VAAM. 

VAAR Part 816—Types of Contracts 

The authority citation for part 816 is 

revised to correct the citation for 41 

U.S.C. 1121 by adding reference to 

paragraph (c)(3). 

In subpart 816.5, we propose to add 

section 816.506–70, Requirements— 

supplement for mortuary services, 

prescribing clause 852.216–76, 

Requirements—Supplement for 

Mortuary Services, for all contracts for 

mortuary services. 

VAAR Part 837—Service Contracting 

We propose to amend the authority 

citation for part 837 to add reference to 

the Crime Control Act of 1990 and the 

Pro-Children Act of 2001 which provide 

the authority for new clauses that 

address protection of children under 

contracts providing child care services. 

We also propose to add 41 U.S.C. 

1121(c)(3) which is from Title 41, Public 

Contracts, Positive Law codification that 

speaks to the authority of an executive 

agency under another law to prescribe 

policies, regulations, procedures, and 

forms for procurement that are subject 

to the authority conferred in the cited 

section, as well as other sections of Title 

41 as shown therein. 

We also propose to revise the part 837 

authorities to replace the 38 U.S.C. 501 

citation with 41 U.S.C. 1702 which 

addresses the acquisition planning and 

management responsibilities of Chief 

Acquisition Officers and Senior 

Procurement Executives, to include 

implementation of unique procurement 

policies, regulations and standards of 

the executive agency. 38 U.S.C. 501 is 

a more general authority for the 

Secretary to utilize to prescribe all rules 

and regulations. The title 41 authority is 

more appropriate to cite when 

publishing the VAAR. 

We propose to remove section 

837.103, Contracting officer 

responsibility, and to address the 

subject of documenting personal versus 

non-personal services determinations in 

the VAAM. 

We propose to remove the title and 

text at section 837.110, Solicitation 

provisions and contract clauses, since 

FAR 52.237–2 Protection of Government 

Buildings, Equipment and Vegetation 

and 852.228–71, Indemnification and 

Insurance, outline contractor liabilities 

and required insurance levels. 

We propose to amend section 

837.110–70, Services provided to 

eligible beneficiaries, to retitle it ‘‘VA 

solicitation provisions and contract 

clauses,’’ to remove the prescription for 

the clause, 852.271–70, 

Nondiscrimination in services provided 

to beneficiaries, and to add the 

prescriptions for the new clauses 

852.237–74, Nondiscrimination in 

Service Delivery, and 852.237–75, Key 

Personnel. 

In subpart 837.2, Advisory and 

Assistance Services, and section 

837.203, Policy, we propose to remove 

the entire subpart since it duplicates 

coverage in FAR. 

In subpart 837.4, Nonpersonal Health 

Care Services, section 837.403, Contract 

clause, we propose to amend the section 

to redesignate it as section 837.403–70, 

VA contract clauses; to renumber clause 

852.237–7, Indemnification and Medical 

Liability Insurance, as 852.237–70 to 

conform to the FAR guidance for 

numbering of clauses; to insert in the 

clause a five day notice requirement for 

evidence of coverage and of any change 

in insurance providers during the term 

of the contract; and to add prescriptions 

for three new clauses that address 

protection of children under contracts 

providing child care services as required 

by FAR 37.103(d): 852.237–71, 

Nonsmoking Policy for Children 

Services; 852.237–72, Crime Control 

Act—Reporting of Child Abuse; and 

852.237–73, Crime Control Act— 

Requirement for Background Checks. 

We propose the following revisions to 

subpart 837.70, Mortuary Services, to 

remove internal and outdated guidance 

and to address only acquisition policy 

affecting mortuary services: 

We propose to add section 837.7000, 

Scope, and to cite the statutory basis for 

the mortuary service benefits covered. 

We propose to remove the existing 

section 837.7001, General, and add a 

new section 837.7001, Solicitation 

provisions and contract clauses, to 

prescribe one new provision, 852.237– 

76, Award to Single Offeror; and four 

new clauses specific to the coverage of 

mortuary services: 852.237–77, Area of 

Performance, which describes the 

contractor’s responsibilities both within 

and outside of the contract designated 

area of performance and the basis for 

payment of any transportation fees for 

pick-up from or delivery points outside 

that area; 852.237–78, Performance and 

Delivery, which requires the 

contractor’s response to requests for 

services within 36 hours and allows the 

Government to require that the remains 

be held for up to 72 hours from 

completion of services; 852.237–79, 

Subcontracting, which stipulates that 

the Contractor shall not subcontract any 

work under this contract without the 

contracting officer’s written approval 

and states the clause does not apply to 

contracts of employment between the 

Contractor and its personnel; and 

852.237–80, Health Department and 

Transport Permits, which requires to 

contractor to meet all State and local 

licensing requirements and obtain and 

furnish all necessary health department 

and shipping permits at no additional 

cost to the Government. We also 

propose to add a cross-reference to the 

availability of clauses prescribed in 

816.506–70 and 849.504–70. 

We propose to remove sections 

837.7002, List of qualified funeral 

directors; 837.7003, Funeral 

authorization; 837.7004, Administrative 

necessity; and 837.7005, Unclaimed 

remains—all other cases, because this 

material is based on internal VA 

guidance that has been rescinded. 

VAAR Part 849—Termination of 

Contracts 

We propose to revise the authority 

citation for part 849 to add 41 U.S.C. 

1121(c)(3) which is from Title 41, Public 

Contracts, Positive Law codification that 


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45376 Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules 

speaks to the authority of an executive 

agency under another law to prescribe 

policies, regulations, procedures, and 

forms for procurement that are subject 

to the authority conferred in the cited 

section, as well as other sections of Title 

41 as shown therein. 

We also propose to revise the part 849 

authorities to add 41 U.S.C. 1702 which 

addresses the acquisition planning and 

management responsibilities of Chief 

Acquisition Officers and Senior 

Procurement Executives, to include 

implementation of unique procurement 

policies, regulations and standards of 

the executive agency. 

In part 849, we propose to add 

subpart 849.5, Contract Termination 

Clauses, section 849.504, Termination of 

fixed-price contracts for default, which 

contains no text but implements FAR 

49.504, and section 849.504–70, 

Termination of mortuary services, to 

prescribe a new clause 852.249–70, 

Termination for Default—Supplement 

for Mortuary Services. 

VAAR Part 852—Solicitation 

Provisions and Contract Clauses 

We propose to amend the authority 

citation for part 852 to add reference to 

the 20 U.S.C. 7181–7183 (Pro-children 

Act of 2001), and Public Law 101–647, 

(Crime Control Act of 1990) which 

provided the authority for new clauses 

that address protection of children 

under contracts providing child care 

services. We also propose to add as an 

authority 41 U.S.C. 1303, which is an 

updated positive law codification to 

reflect additional authority of the VA as 

an executive agency to issue regulations 

that are essential to implement 

Governmentwide policies and 

procedures in the agency, as well as to 

issue additional policies and procedures 

required to satisfy the specific needs of 

the VA. 

In subpart 852.2, we propose to 

amend 852.215–70, Service-Disabled 

Veteran-Owned and Veteran-Owned 

Small Business Evaluation Factors. This 

was revised to change it from a clause 

to a provision and language was added 

to comply with the statute that requires 

that any business concern that is 

determined by VA to have willfully and 

intentionally misrepresented a 

company’s SDVOSB/VOSB status is 

subject to debarment for a period of not 

less than five years. 

We propose to amend 852.215–71, 

Evaluation Factor Commitments. This 

was revised to add language to comply 

with the statute that requires that any 

business concern that is determined by 

VA to have willfully and intentionally 

misrepresented a company’s SDVOSB/ 

VOSB status is subject to debarment for 

a period of not less than five years. 

We propose to add clause 852.215–72, 

Notice of Intent to Re-Solicit, which 

informs offerors that in the event that 

only one offer is received in response to 

a solicitation that allows offerors fewer 

than 30 days to submit their proposal, 

the Contracting Officer may cancel the 

solicitation and re-solicit for an 

additional period of at least 30 days in 

accordance with 815.370–2. 

We propose to add clause 852.216–76, 

Requirements—Supplement for 

Mortuary Services, for all requirements 

contracts for mortuary services. 

We are providing the final publication 

and effective dates of March 2018 for 

the following clauses published in final 

under rule AP82: 852.216–71, 852.216– 

72, 852.216–73, 852.216–74, 852.216– 

75, 852.228–71, and 852.228–73. 

We propose to remove the title and 

text of clause 852.237–70, Contractor 

Responsibilities, which is determined to 

be unnecessary since FAR clause 

52.237–2, Protection of Government 

Buildings, Equipment and Vegetation, 

and VAAR clause 852.228–71, 

Indemnification and Insurance, both 

outline contractor liabilities and 

required insurance levels. 

We propose to revise clause 852.237– 

7, Indemnification and Medical Liability 

Insurance, to renumber it 852.237–70, 

and to make minor revisions to require 

the contracting officer to insert the 

dollar amount values of standard 

coverages prevailing within the local 

community as to the specific medical 

specialty, or specialties, concerned, or 

such higher amount as the contracting 

officer deems necessary to protect the 

Government’s interests; and to insert a 

requirement for the contractor to notify 

the contracting officer within 5 days of 

becoming aware of a change in 

insurance providers during the 

performance period of the contract for 

all health-care providers performing 

under it; and to furnish to the 

contracting officer evidence of 

insurance at least five days before 

commencement of work. 

We propose to add the following 

clauses to address protection of children 

under contracts providing child care 

services as required by 20 U.S.C. 7181– 

7183 (Pro-Children Act of 2001), and 

Public Law 101–647, (Crime Control Act 

of 1990): 852.237–71, Nonsmoking 

Policy for Children’s Services, 

prohibiting smoking in facilities where 

certain federally funded children’s 

services are provided; 852.237–72, 

Crime Control Act—Reporting of Child 

Abuse, which imposes responsibilities 

on certain individuals who, while 

engaged in a professional capacity or 

activity, as defined in the Act, on 

Federal land or in a federally-operated 

(or contracted) facility, learn of facts 

that give the individual reason to 

suspect that a child has suffered an 

incident of child abuse; and 852.237–73, 

Crime Control Act—Requirement for 

Background Checks, which requires the 

contractor’s compliance with the Act 

requiring that all individuals involved 

with the provision of child care 

services, as defined in the act, to 

children under the age of 18 undergo a 

criminal background check. 

We propose to add new clause 

852.237–75, Key Personnel, requiring 

the written consent of the Contracting 

Officer to changes in key personnel, and 

new clauses specific to the coverage of 

mortuary services: 852.237–76, Award 

to Single Offeror, to stipulate that 

awards will be made to a single offeror 

rather than to multiple offerors; 

852.237–77, Area of Performance, to 

clarify Contractor’s responsibilities for 

its designated area of service; 852.237– 

78, Performance and Delivery, to specify 

the required time frame for completion 

of services and the Government’s right 

to require a hold on services; 852.237– 

79, Subcontracting, to require the 

Contracting Officer’s written approval to 

subcontract any work; and 852.237–80, 

Health Department and Transport 

Permits, to stipulate the contractor’s 

responsibility to obtain all transport 

permits required under the contract at 

no additional cost to the Government. 

We propose to add the clause 

852.249–70, Termination for Default— 

Supplement for Mortuary Services, for 

use in contracts for mortuary services. 

This clause expressly identifies actions, 

such as soliciting families of decedents 

to provide additional services, 

subcontracting services without 

Government consent, or refusing to 

perform services for any particular 

remains. 

We propose to redesignate and retitle 

clause 852.271–70, Non-discrimination 

in Services Provided to Beneficiaries, as 

852.237–74, Non-discrimination in 

Service Delivery, and prescribed the 

clause at under VAAR section 837.110– 

70(a) to conform to FAR structure. This 

clause states that it is the policy of the 

Department of Veterans Affairs that no 

person otherwise eligible will be 

excluded from participation in, denied 

the benefits of, or subjected to 

discrimination in the administration of 

VA programs and services based on 

non-merit factors such as race, color, 

national origin, religion, sex, gender 

identity, sexual orientation, or disability 

(physical or mental). This clause also 

stipulates that by acceptance of this 

contract, the contractor agrees to comply 


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with this policy in supporting the 

program and in performing the services 

called for under this contract. The 

clause is revised to clarify the language 

and the contractor’s obligation to ensure 

that each of its employees, and any subcontractor staff, is made aware of, 

understands, and complies with this 

policy. 

VAAR Part 871—Loan Guaranty and 

Vocational Rehabilitation and 

Employment Programs 

In the authority citation for part 871, 

we propose to add 41 U.S.C. 1121(c)(3) 

which is from Title 41, Public Contracts, 

Positive Law codification that speaks to 

the authority of an executive agency 

under another law to prescribe policies, 

regulations, procedures, and forms for 

procurement that are subject to the 

authority conferred in the cited section, 

as well as other sections of Title 41 as 

shown therein. 

We also propose to revise the part 871 

authorities to replace the 38 U.S.C. 501 

citation with 41 U.S.C. 1702 which 

addresses the acquisition planning and 

management responsibilities of Chief 

Acquisition Officers and Senior 

Procurement Executives, to include 

implementation of unique procurement 

policies, regulations and standards of 

the executive agency. 38 U.S.C. 501 is 

a more general authority for the 

Secretary to utilize to prescribe all rules 

and regulations. The title 41 authority is 

more appropriate to cite when 

publishing the VAAR. In section 

871.212, we propose to revise this 

section to redesignate the first paragraph 

as (a); to remove the prescription of 

clause 852.271–70, Nondiscrimination 

In Services Provided To Beneficiaries; to 

renumber the remaining paragraphs as 

(1) through (4); and to add new 

paragraph (b) to refer the contracting 

officer to section 837.110–70(a) for the 

prescription of the new clause 852.237– 

74, Non-discrimination In Service 

Delivery. 

Effect of Rulemaking 

Title 48, Federal Acquisition 

Regulations System, Chapter 8, 

Department of Veterans Affairs, of the 

Code of Federal Regulations, as 

proposed to be revised by this 

rulemaking, would represent VA’s 

implementation of its legal authority 

and publication of the VAAR for the 

cited applicable parts. Other than future 

amendments to this rule or governing 

statutes for the cited applicable parts, or 

as otherwise authorized by approved 

deviations or waivers in accordance 

with FAR subpart 1.4, Deviations from 

the FAR, and as implemented by VAAR 

subpart 801.4, Deviations from the FAR 

or VAAR, no contrary guidance or 

procedures would be authorized. All 

existing or subsequent VA guidance 

would be read to conform with the 

rulemaking if possible or, if not 

possible, such guidance would be 

superseded by this rulemaking as 

pertains to the cited applicable VAAR 

parts. 

Executive Orders 12866, 13563 and 

13771 

Executive Orders (E.O.) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. E.O. 12866, Regulatory 

Planning and Review defines 

‘‘significant regulatory action’’ to mean 

any regulatory action that is likely to 

result in a rule that may: ‘‘(1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) Create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

Materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) Raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in this Executive 

Order.’’ VA has examined the economic, 

interagency, budgetary, legal, and policy 

implications of this regulatory action, 

and it has been determined this rule is 

not a significant regulatory action under 

E.O. 12866. VA’s impact analysis can be 

found as a supporting document at 

http://www.regulations.gov, usually 

within 48 hours after the rulemaking 

document is published. Additionally, a 

copy of the rulemaking and its impact 

analysis are available on VA’s website at 

http://www.va.gov/orpm by following 

the link for VA Regulations Published 

from FY 2004 Through Fiscal Year to 

Date. 

This rule is not an E.O. 13771 

regulatory action because this rule is not 

significant under E.O. 12866. 

Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(at 44 U.S.C. 3507) requires that VA 

consider the impact of paperwork and 

other information collection burdens 

imposed on the public. Under 44 U.S.C. 

3507(a), an agency may not collect or 

sponsor the collection of information, 

nor may it impose an information 

collection requirement unless it 

displays a currently valid OMB control 

number. See also 5 CFR 1320.8(b)(3)(vi). 

This proposed rule will impose one new 

and one amended information 

collection requirement. Accordingly, 

under 44 U.S.C. 3507(d), VA has 

submitted a copy of this rulemaking 

action OMB for its review. Notice of 

OMB approval for the new information 

collection and the information 

collection amendment will be published 

in a future Federal Register document. 

Under the Paperwork Reduction Act 

(PRA) of 1995 (44 U.S.C. 3501–3521), a 

current collection of information, OMB 

No. 2900–0590, contained in part 837 at 

proposed section 837.403–70 (currently 

numbered 837.403) and in part 852 at 

proposed section 852.237–70 (currently 

numbered 852.237–7), is being revised 

as set forth in the SUPPLEMENTARY

INFORMATION portion of this proposed 

rule. The clause number that appears in 

the table at 801.106 is also proposed to 

be revised accordingly. 

Summary of collection of information: 

This action contains provisions 

constituting an existing information 

collection at 48 CFR 837.403 and 

852.237–7, under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3521) and has been 

assigned OMB control number 2900– 

0590. This action proposes revisions to 

837.403 to renumber it as 837.403–70, to 

retitle it as ‘‘VA contract clauses,’’ and 

to renumber the clause as 852.237–70 

while retaining the title, 

‘‘Indemnification and Medical Liability 

Insurance.’’ 

Clause 852.237–70 is used in lieu of 

FAR clause 52.237–7, Indemnification 

and Medical Liability Insurance, in 

solicitations and contracts for the 

acquisition of non-personal health care 

services. It requires the apparent 

successful bidder/offeror, upon the 

request of the contracting officer, prior 

to contract award, to furnish evidence of 

insurability of the offeror and/or all 

health-care providers who will perform 

under the contract. In addition, the 

clause requires the contractor, prior to 

commencement of services under the 

contract, to provide Certificates of 

Insurance or insurance policies 

evidencing that the firm possesses the 

types and amounts of insurance 


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45378 Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules 

required by the solicitation. We propose 

to modify the collection to require the 

contractor to notify the contracting 

officer within five days of becoming 

aware of a change in insurance 

providers during the performance 

period of this contract for all health-care 

providers performing under this 

contract, and to provide to the 

contracting officer evidence of such 

insurance for any subcontractor at least 

five days before commencement of work 

by that subcontractor. 

Description of need for information 

and proposed use of information: The 

information is required in order to 

protect VA by ensuring that the firm to 

which award may be made and the 

individuals who may provide health 

care services under the contract are 

insurable and that, following award, the 

contractor and its employees will 

continue to possess the types and 

amounts of insurance required by the 

solicitation. It helps ensure that VA will 

not be held liable for any negligent acts 

of the contractor or its employees and 

ensures that VA and VA beneficiaries 

will be protected by adequate insurance 

coverage. The clause number is changed 

to 852.237–70 to conform to the FAR 

guidance for numbering of clauses. The 

burden imposed by this collection 

remains unchanged as follows: 

Estimated number of respondents 

annually: 1,500. 

Estimated frequency of responses: 

One response for each contract to be 

awarded. 

Estimated average burden per 

collection: 30 minutes. 

Estimate of the total annual hour 

burden of the collection of information: 

750 hours. 

Annual cost to all respondents: 

$15,000 (at $20 per hour, based on our 

belief that the majority of the labor effort 

would be clerical similar to GS–5). 

Under the Paperwork Reduction Act 

of 1995 (44 U.S.C. 3501–3521), a new 

collection of information is proposed, 

under OMB No. 2900–AQ20, that is 

contained in Part 837 at proposed 

section 837.403–70 and Part 852 at 

proposed clause 852.237–73, as set forth 

in the SUPPLEMENTARY INFORMATION

portion of this proposed rule. The 

clause number and the OMB clearance 

number would be added to the table at 

801.106. 

Summary of collection of information: 

Under the Crime Control Act of 1990 (42 

U.S.C. 13041), each agency of the 

Federal Government, and every facility 

operated by the Federal Government, or 

operated under contract with the 

Federal Government, that hires, or 

contracts for hire, individuals involved 

with the provision of child care services 

to children under the age of 18 shall 

assure that all existing and newly-hired 

employees undergo a criminal history 

background check. 

New VAAR clause 852.237–73, Crime 

Control Act—Requirement for 

Background Checks, is required in all 

solicitations, contracts, and orders that 

involve providing child care services to 

children under the age of 18, including 

social services, health and mental health 

care, child-(day) care, education 

(whether or not directly involved in 

teaching), and rehabilitative programs 

covered under the statute. 

Description of need for information 

and proposed use of information: The 

contract clause would require the 

contractor to perform the background 

checks on behalf of VA to assure the 

safety of children under the age of 18 

that are recipients of services under a 

VA program. It is intended to assure 

their safety by avoiding hiring 

individuals with a history of criminal 

acts and especially acts of child abuse. 

Estimated number of respondents 

annually: 500. 

Estimated frequency of responses: 20 

per contract awarded. 

Estimated average burden per 

collection: 1 hour. 

Estimate of the total annual hour 

burden of the collection of information: 

10,000 hours. 

Annual cost to all respondents: 

$550,000 ($55 rate including fringe 

benefits and assuming senior level (GS– 

13) technical specialist). 

This clause would enable the VA to 

be in compliance with the Crime 

Control Act of 1990 and to protect 

children that are within its health care 

systems. 

Interested persons have 60 days in 

which to provide comment on the 

information collection. The Department 

considers comments by the public on 

proposed collections of information in— 

• Evaluating whether the proposed 

collections of information are necessary 

for the proper performance of the 

functions of the Department, including 

whether the information will have 

practical utility; 

• Evaluating the accuracy of the 

Department’s estimate of the burden of 

the proposed collections of information, 

including the validity of the 

methodology and assumptions used; 

• Enhancing the quality, usefulness, 

and clarity of the information to be 

collected; and 

• Minimizing the burden of the 

collections of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

Comments on the collection of 

information contained in this proposed 

rule should be submitted to the Office 

of Management and Budget, Attention: 

Desk Officer for the Department of 

Veterans Affairs, Office of Information 

and Regulatory Affairs, Washington, DC 

20503, with copies sent by mail or hand 

delivery to the Director, Regulation 

Policy and Management (00REG), 

Department of Veterans Affairs, 810 

Vermont Ave. NW, Room 1068, 

Washington, DC 20420; fax to (202) 

273–9026, email to 

www.Regulations.gov. Comments 

should indicate they are submitted in 

response to ‘‘RIN 2900–AQ20.’’ 

Individuals are not required to 

respond to a collection of information 

unless it displays a currently valid OMB 

control number. 

OMB is required to make a decision 

concerning the proposed collection of 

information contained in this proposed 

rule between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. This does not affect the 

deadline for the public to comment on 

the proposed regulation. 

Regulatory Flexibility Act 

This proposed rule will not have a 

significant economic impact on a 

substantial number of small entities as 

they are defined in the Regulatory 

Flexibility Act, 5 U.S.C. 601–612. This 

proposed rule will generally be small 

business neutral. The overall impact of 

the proposed rule will be of benefit to 

small businesses owned by Veterans or 

Service-Disabled Veterans as the VAAR 

is being updated to remove extraneous 

procedural information that applies 

only to VA’s internal operating 

procedures. VA estimates no cost 

impact to individual business would 

result from these rule updates. On this 

basis, the adoption of this proposed rule 

will not have a significant economic 

impact on a substantial number of small 

entities as they are defined in the 

Regulatory Flexibility Act, 5 U.S.C. 601– 

612. Therefore, under 5 U.S.C. 605(b), 

this proposed rule is exempt from the 

initial and final regulatory flexibility 

analysis requirements of sections 603 

and 604. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 


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anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

Governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. This proposed rule will have 

no such effect on State, local, and tribal 

Governments or on the private sector. 

List of Subjects 

48 CFR Part 801 

Administrative practice and 

procedure. 

48 CFR Parts 815, 816, 837, and 849 

Government procurement. 

48 CFR Part 852 

Government procurement, Reporting 

and recordkeeping requirements. 

48 CFR Part 871 

Government procurement, Loan 

programs—social programs, Loan 

programs—veterans, Reporting and 

recordkeeping requirements, Vocational 

rehabilitation. 

Signing Authority 

The Secretary of Veterans Affairs 

approved this document and authorized 

the undersigned to sign and submit the 

document to the Office of the Federal 

Register for publication electronically as 

an official document of the Department 

of Veterans Affairs. Robert L. Wilkie, 

Secretary, Department of Veterans 

Affairs, approved this document on 

August 20, 2018, for publication. 

Dated: August 21, 2018. 

Consuela Benjamin, 

Regulations Development Coordinator, Office 

of Regulation Policy & Management, Office 

of the Secretary, Department of Veterans 

Affairs. 

For the reasons set out in the 

preamble, VA proposes to amend 48 

CFR parts 801, 815, 816, 837, 849, 852 

and 871 as follows: 

PART 801—DEPARTMENT OF 

VETERANS AFFAIRS ACQUISITION 

REGULATION SYSTEM 

■ 1. The authority citation for part 801 

continues to read as follows: 

Authority: 40 U.S.C. 121(c); 41 U.S.C. 

1121(c)(3); 41 U.S.C. 1702; and 48 CFR 

1.301–1.304. 

Subpart 801.1—Purpose, Authority, 

Issuance 

801.106 [Amended] 

■ 2. Amend the table in section 801.106 

by removing clause number 852.237–7 

and adding in its place clause number 

852.237–70. 

PART 815—CONTRACTING BY 

NEGOTIATION 

■ 3. The authority citation for part 815 

is revised to read as follows: 

Authority: 38 U.S.C. 8127 and 8128; 40 

U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 

1702 and 48 CFR 1.301–1.304. 

Subpart 815.3—Source Selection 

815.303 [Removed] 

■ 4. Section 815.303 is removed. 

815.304 [Removed] 

■ 5. Section 815.304 is removed. 

■ 6. Section 815.304–70 is revised to 

read as follows: 

815.304–70 Evaluation factor 

commitments. 

VA contracting officers shall— 

(a) Include the provision at 852.215– 

70, Service-Disabled Veteran Owned 

Small Business (SDVOSB) and Veteran 

Owned Small Business (VOSB) 

Evaluation Factors, in negotiated 

solicitations giving preference to offers 

received from VOSBs and additional 

preference to offers received from 

SDVOSBs; 

(b) Use past performance in meeting 

SDVOSB subcontracting goals as a nonprice evaluation factor in making award 

determination; and 

(c) Use the proposed inclusion of 

SDVOSBs or VOSBs as subcontractors 

as an evaluation factor when 

competitively negotiating the award of 

contracts or task or delivery orders. 

■ 7. Section 815.340–71 is revised to 

read as follows: 

815.304–71 Solicitation provision and 

clause. 

(a) The contracting officer shall insert 

the provision at 852.215–70, ServiceDisabled Veteran-Owned Small 

Business (SDVOSB) and Veteran-Owned 

Small Business (VOSB) Evaluation 

Factors, in competitively negotiated 

solicitations that are not set aside for 

SDVOSBs or VOSBs. 

(b) The contracting officer shall insert 

the clause at 852.215–71, Evaluation 

Factor Commitments, in solicitations 

and contracts that include VAAR 

provision 852.215–70, Service-Disabled 

Veteran-Owned Small Business 

(SDVOSB) and Veteran-Owned Small 

Business (VOSB) Evaluation Factors. 

■ 8. Section 815.370 is added to read as 

follows: 

815.370 Only one offer. 

■ 9. Section 815.370–1 is added to read 

as follows: 

815.370–1 Policy. 

It is VA policy, if only one offer is 

received in response to a competitive 

solicitation, to— 

(a) Take action to promote 

competition (see 815.370–2); and 

(b) Ensure that the price is fair and 

reasonable (see 815.370–3) and to 

comply with the statutory requirement 

for certified cost or pricing data (see 

FAR 15.403–4). 

■ 10. Section 815.370–2 is added to read 

as follows: 

815.370–2 Promote competition. 

Except as provided in 815.370–4, if 

only one offer is received when 

competitive procedures were used and 

the solicitation allowed fewer than 30 

days for receipt of proposals, the 

contracting officer should— 

(a) Consult with the requiring activity 

as to whether the requirements 

document should be revised in order to 

promote more competition (see FAR 

6.502(b) and 11.002); and 

(b) Consider re-soliciting, allowing an 

additional period of at least 30 days for 

receipt of proposals. 

■ 11. Section 815.370–3 is added to read 

as follows: 

815.370–3 Fair and reasonable price. 

(a) If there was ‘‘reasonable 

expectation that two or more offerors, 

competing independently, would 

submit priced offers’’ but only one offer 

is received, this circumstance does not 

constitute adequate price competition 

unless an official at a level above the 

contracting officer approves the 

determination that the price is 

reasonable (see FAR 15.403–1(c)(1)(ii)). 

(b) Except as provided in 815.370– 

4(a), if only one offer is received when 

competitive procedures were used and 

the solicitation allowed at least 30 days 

for receipt of proposals (unless the 30- 

day requirement is not applicable in 

accordance with 815.370–4(a)(3), the 

contracting officer shall— 

(1) Determine through cost or price 

analysis that the offered price is fair and 

reasonable and that adequate price 

competition exists (with approval of the 

determination at a level above the 

contracting officer) or another exception 

to the requirement for certified cost or 

pricing data applies (see FAR 15.403– 

1(c) and 15.403–4). In these 

circumstances, no further cost or pricing 

data is required; or 

(2)(i) Obtain from the offeror cost or 

pricing data necessary to determine a 

fair and reasonable price and comply 

with the requirement for certified cost 

or pricing data at FAR 15.403–4. For 

acquisitions that exceed the cost or 

pricing data threshold, if no exception 


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at FAR 15.403–1(b) applies, the cost or 

pricing data shall be certified; and 

(ii) Enter into negotiations with the 

offeror as necessary to establish a fair 

and reasonable price. The negotiated 

price should not exceed the offered 

price. 

■ 12. Section 815.370–4 is added to read 

as follows: 

815.370–4 Exceptions. 

(a) The requirements at 815.370–2 do 

not apply to— 

(1) Acquisitions at or below the 

simplified acquisition threshold; 

(2) Acquisitions in support of 

emergency, humanitarian or 

peacekeeping operations, or to facilitate 

defense against or recovery from 

nuclear, biological, chemical, or 

radiological attack; 

(3) Small business set-asides under 

FAR subpart 19.5, set asides offered and 

accepted into the 8(a) Program under 

FAR subpart 19.8, or set-asides under 

the HUBZone Program (see FAR 

19.1305(c)), the VA Small Business 

Program (see VAAR 819), or the 

Women-Owned Small Business Program 

(see FAR 19.1505(d)); 

(4) Acquisitions of basic or applied 

research or development, as specified in 

FAR 35.016(a), that use a broad agency 

announcement; or 

(5) Acquisitions of architect-engineer 

services (see FAR 36.601–2). 

(b) The applicability of an exception 

in paragraph (a) of this section does not 

eliminate the need for the contracting 

officer to seek maximum practicable 

competition and to ensure that the price 

is fair and reasonable. 

■ 13. Section 815.370–5 is added to read 

as follows: 

815.370–5 Solicitation provision. 

Use the provision at 852.215–72, 

Notice of intent to re-solicit, in 

competitive solicitations, including 

solicitations using FAR part 12 

procedures for the acquisition of 

commercial items that will be solicited 

for fewer than 30 days, unless an 

exception at 815.370–4 applies. 

Subpart 815.4—[Removed and 

Reserved] 

■ 14. Subpart 815.4 is removed and 

reserved. 

Subpart 815.6—[Removed and 

Reserved] 

■ 15. Subpart 815.6 is removed and 

reserved. 

PART 816—TYPES OF CONTRACTS 

■ 16. The authority citation for part 816 

is revised to read as follows: 

Authority: 40 U.S.C. 121(c); 41 U.S.C. 

1121(c)(3); 41 U.S.C. 1702; and 48 CFR 

1.301–1.304. 

Subpart 816.5—Indefinite-Delivery 

Contracts 

■ 17. Section 816.506–70 is added to 

read as follows: 

816.506–70 Requirements—supplement 

for mortuary services. 

Insert the clause 852.216–76, 

Requirements—Supplement for 

Mortuary Services, in contracts for 

mortuary services containing FAR 

clause 52.216–21, Requirements. The 

contracting officer shall insert activities 

authorized to place orders in paragraph 

(e) of the clause. 

PART 837—SERVICE CONTRACTING 

■ 18. The authority citation for part 837 

is revised to read as follows: 

Authority: Public Law 101–647; 20 U.S.C. 

7181–7183; 40 U.S.C. 121(c); 41 U.S.C. 

1121(c)(3); 41 U.S.C. 1702; and 48 CFR 

1.301–1.304. 

Subpart 837.1—Service Contracts— 

General 

837.103 [Removed] 

■ 19. Section 837.103 is removed. 

837.110 [Removed] 

■ 20. Section 837.110 is removed. 

■ 21. Section 837.110–70 is revised to 

read as follows: 

837.110–70 VA solicitation provisions and 

contract clauses. 

(a) Contracting officers shall include 

the clause at 852.237–74, 

Nondiscrimination in Service Delivery, 

in all solicitations and contracts 

covering services provided to eligible 

beneficiaries. 

(b) The contracting officer shall insert 

the clause at 852.237–75, Key 

Personnel, in solicitations and contracts 

when the contracting officer will require 

the contractor to designate contractor 

key personnel. 

Subpart 837.2—[Removed and 

Reserved] 

■ 22. Subpart 837.2 is removed and 

reserved. 

837.203 [Removed] 

■ 23. Section 837.203 is removed. 

Subpart 837.4—Nonpersonal Health 

Care Services 

■ 24. Section 837.403 is revised to read 

as follows: 

837.403–70 VA contract clauses. 

(a) The contracting officer shall insert 

the clause at 852.237–70, 

Indemnification and Medical Liability 

Insurance, in lieu of FAR clause 52.237– 

7, in solicitations and contracts for 

nonpersonal health-care services, 

including contracts awarded under the 

authority of 38 U.S.C. 7409, 38 U.S.C. 

8151–8153, and part 873. The 

contracting officer may include the 

clause in bilateral purchase orders for 

nonpersonal health-care services 

awarded under the procedures in FAR 

part 13 and part 813. 

(b) The contracting officer shall insert 

the clause at 852.237–71, Nonsmoking 

Policy for Children’s Services, in 

solicitations, contracts, and orders that 

involve health or daycare services that 

are provided to children under the age 

of 18 on a routine or regular basis 

pursuant to the Nonsmoking Policy for 

Children’s Services (20 U.S.C. 6081– 

6084). 

(c) The contracting officer shall insert 

the clause at 852.237–72, Crime Control 

Act—Reporting of Child Abuse, in 

solicitations, contracts, and orders that 

require performance on Federal land or 

in a federally operated (or contracted) 

facility and involve the professions/ 

activities performed by persons 

specified in the Crime Control Act of 

1990 (42 U.S.C. 13031) including, but 

not limited to, teachers, social workers, 

physicians, nurses, dentists, health care 

practitioners, optometrists, 

psychologists, emergency medical 

technicians, alcohol or drug treatment 

personnel, child care workers and 

administrators, emergency medical 

technicians and ambulance drivers. 

(d) The contracting officer shall insert 

the clause at 852.237–73, Crime Control 

Act—Requirement for Background 

Checks, in solicitations, contracts, and 

orders that involve providing child care 

services to children under the age of 18, 

including social services, health and 

mental health care, child- (day) care, 

education (whether or not directly 

involved in teaching), and rehabilitative 

programs covered under the Crime 

Control Act of 1990 (42 U.S.C. 13041). 

Subpart 837.70—Mortuary Services 

■ 25. Section 837.7000 is added to read 

as follows: 

837.7000 Scope. 

This subpart applies to mortuary 

(funeral and burial) services for 

beneficiaries of VA as provided in 38 

U.S.C. 2302, 2303, and 2308 when it is 

determined that a contract would be the 

most efficient and effective method. 

Contract payment terms for use of the 

purchase card as a method of payment 

should also be considered. 

■ 26. Section 837.7001 is revised to read 

as follows: 


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837.7001 Solicitation provisions and 

contract clauses. 

(a) The contracting officer shall insert 

the basic or the alternate of the 

provision at 852.237–76, Award to 

Single Offeror, in solicitations and 

contracts for mortuary services as 

follows: 

(1) Insert the provision in all sealed 

bid solicitations for mortuary services; 

and 

(2) Insert the basic provision with its 

alternate I in all negotiated solicitations 

for mortuary services. 

(b) The contracting officer shall insert 

in addition to FAR 52.216–21 

Requirements, ALT VI, the following 

VA clauses in all mortuary service 

solicitations and contracts: 

(1) 852.237–77, Area of Performance. 

(2) 852.237–78, Performance and 

Delivery. 

(3) 852.237–79, Subcontracting. 

(4) 852.237–80, Health Department 

and Transport Permits. 

(c) See also 816.506–70 and 849.504– 

70 for additional clauses for use in 

contracts for mortuary services. 

837.7002 [Removed] 

■ 27. Section 837.7002 is removed. 

837.7003 [Removed] 

■ 28. Section 837.7003 is removed. 

837.7004 [Removed] 

■ 29. Section 837.7004 is removed. 

837.7005 [Removed] 

■ 30. Section 837.7005 is removed. 

PART 849—TERMINATION OF 

CONTRACTS 

■ 31. The authority citation for part 849 

is revised to read as follows: 

Authority: 40 U.S.C. 121(c); 41 U.S.C. 

1121(c)(3); 41 U.S.C. 1702; and 48 CFR 

1.301–1.304. 

■ 32. Subpart 849.5 is added to read as 

follows: 

Subpart 849.5—Contract Termination 

Clauses 

849.504 Termination of fixed-price 

contracts for default. 

849.504–70 Termination of mortuary 

services. 

Use the clause at 852.249–70, 

Termination for Default—Supplement 

for Mortuary Services, in all 

solicitations and contracts for mortuary 

services. This clause is to be used with 

FAR clause 52.249–8, Default (FixedPrice Supply and Service). 

PART 852—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 33. The authority citation for part 852 

is revised to read as follows: 

Authority: Public Law 101–647; 20 U.S.C. 

7181–7183; 38 U.S.C. 8127–8128, and 8151– 

8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 

41 U.S.C. 1303; 41 U.S.C 1702; and 48 CFR 

1.301–1.304. 

Subpart 852.2—Texts of Provisions 

and Clauses 

■ 34. Section 852.215–70 is revised to 

read as follows: 

852.215–70 Service-Disabled VeteranOwned and Veteran-Owned Small Business 

Evaluation Factors. 

As prescribed in 815.304–71(a), insert 

the following provision: 

Service-Disabled Veteran-Owned and 

Veteran-Owned Small Business 

Evaluation Factors (Date) 

(a) In an effort to achieve socioeconomic 

small business goals, VA shall evaluate 

offerors based on their service-disabled 

veteran-owned or veteran-owned small 

business status and their proposed use of 

eligible service-disabled veteran-owned small 

businesses and veteran-owned small 

businesses as subcontractors. 

(b) Eligible service-disabled veteran-owned 

offerors will receive full credit, and offerors 

qualifying as veteran-owned small businesses 

will receive partial credit for the ServiceDisabled Veteran-Owned and Veteran-owned 

Small Business Status evaluation factor. To 

receive credit, an offeror must be registered 

and verified in Vendor Information Pages 

(VIP) database. 

(c) Non-veteran offerors proposing to use 

service-disabled veteran-owned small 

businesses or veteran-owned small 

businesses as subcontractors will receive 

some consideration under this evaluation 

factor. Offerors must state in their proposals 

the names of the SDVOSBs and VOSBs with 

whom they intend to subcontract and 

provide a brief description of the proposed 

subcontracts and the approximate dollar 

values of the proposed subcontracts. In 

addition, the proposed subcontractors must 

be registered and verified in the VIP 

database. 

(d) Pursuant to 38 U.S.C. 8127(g), any 

business concern that is determined by VA 

to have willfully and intentionally 

misrepresented a company’s SDVOSB/VOSB 

status is subject to debarment for a period of 

not less than five years. This includes the 

debarment of all principals in the business. 

(End of provision) 

■ 35. Section 85.215–71 is revised to 

read as follows: 

852.215–71 Evaluation Factor 

Commitments. 

As prescribed in 815.304–71(b), insert 

the following clause: 

Evaluation Factor Commitments (Date) 

(a) The offeror agrees, if awarded a 

contract, to use the service-disabled veteranowned small businesses or veteran-owned 

small businesses proposed as subcontractors 

in accordance with 852.215–70, ServiceDisabled Veteran-Owned and Veteran-Owned 

Small Business Evaluation Factors, or to 

substitute one or more service-disabled 

veteran-owned small businesses or veteranowned small businesses for subcontract work 

of the same or similar value. 

(b) Pursuant to 38 U.S.C. 8127(g), any 

business concern that is determined by VA 

to have willfully and intentionally 

misrepresented a company’s SDVOSB/VOSB 

status is subject to debarment for a period of 

not less than five years. This includes the 

debarment of all principals in the business. 

(End of clause) 

■ 36. Section 852.215–72 is added to 

read as follows: 

852.215–72 Notice of Intent to Re-Solicit. 

As prescribed at 815.370–5, use the 

following provision: 

Notice of Intent To Re-Solicit (Date) 

This solicitation provides offerors fewer 

than 30 days to submit proposals. In the 

event that only one offer is received in 

response to this solicitation, the Contracting 

Officer may cancel the solicitation and resolicit for an additional period of at least 30 

days in accordance with 815.370–2. 

(End of provision) 

■ 37. Section 852.216–71 is amended by 

revising the section heading and clause 

heading to read as follows: 

852.216–71 Economic Price Adjustment of 

Contract Price(s) Based on a Price Index. 

* * * * * 

Economic Price Adjustment of Contract 

Price(s) Based on a Price Index (Mar 

2018) 

* * * * * 

■ 38. Section 852.216–72 is amended by 

revising the section heading and clause 

heading to read as follows: 

852.216–72 Proportional Economic Price 

Adjustment of Contract Price(s) Based on a 

Price Index. 

* * * * * 

Proportional Economic Price 

Adjustment of Contract Price(s) Based 

on a Price Index (Mar 2018) 

* * * * * 

■ 39. Section 852.216–73 is amended by 

revising the section heading and clause 

heading to read as follows: 

852.216–73 Economic Price Adjustment— 

State Nursing Home Care for Veterans. 

* * * * * 


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Economic Price Adjustment—State 

Nursing Home Care for Veterans (Mar 

2018) 

* * * * * 

■ 40. Section 852.216–74 is amended by 

revising the section heading and clause 

heading to read as follows: 

852.216–74 Economic Price Adjustment— 

Medicaid Labor Rates. 

* * * * * 

Economic Price Adjustment—Medicaid 

Labor Rates (Mar 2018) 

* * * * * 

■ 41. Section 852.216–75 is amended by 

revising the section heading and clause 

heading to read as follows: 

852.216–75 Economic Price Adjustment— 

Fuel Surcharge. 

* * * * * 

Economic Price Adjustment—Fuel 

Surcharge (Mar 2018) 

* * * * * 

■ 42. Section 852.216–76 is added to 

read as follows: 

852.216–76 Requirements—Supplement 

for Mortuary Services. 

As prescribed in 816.506–70, insert 

the following clause: 

Requirements—Supplement for 

Mortuary Services (Date) 

(a) Except as provided in paragraphs (c) 

and (d) of this clause, the Government will 

order from the Contractor all of its 

requirements in the area of performance for 

the supplies and services listed in the 

schedule of this contract. 

(b) Each order will be issued as a delivery 

order and will list— 

(1) The supplies or services being ordered; 

(2) The quantities to be furnished; 

(3) Delivery or performance dates; 

(4) Place of delivery or performance; 

(5) Packing and shipping instructions; 

(6) The address to send invoices; and 

(7) The funds from which payment will be 

made. 

(c) The Government may elect not to order 

supplies and services under this contract in 

instances where the body is removed from 

the area for medical, scientific, or other 

reason. 

(d) In an epidemic or other emergency, the 

contracting activity may obtain services 

beyond the capacity of the Contractor’s 

facilities from other sources. 

(e) Contracting Officers of the following 

activities may order services and supplies 

under this contract— 

lllllllllllllllllllll

lllllllllllllllllllll

(End of clause) 

■ 43. Section 852.228–71 is amended by 

revising the section heading and clause 

heading to read as follows: 

852.228–71 Indemnification and Insurance. 

* * * * * 

Indemnification and Insurance (Mar 

2018) 

* * * * * 

■ 44. Section 852.228–73 is amended by 

revising the section heading and clause 

heading to read as follows: 

852.228–73 Indemnification of 

Contractor—Hazardous Research Projects. 

* * * * * 

Indemnification of Contractor— 

Hazardous Research Projects (Mar 

2018) 

* * * * * 

852.237–70 [Removed] 

■ 45. Section 852.237–70 is removed. 

852.237–7 [Redesignated as 852.237–70 

and Amended] 

■ 46. Section 852.237–7 is redesignated 

as section 852.237–70 and the newly 

redesignated section is revised to read 

as follows: 

852.237–70 Indemnification and Medical 

Liability Insurance. 

As prescribed in 837.403–70(a), insert 

the following clause: 

Indemnification and Medical Liability 

Insurance (Date) 

(a) It is expressly agreed and understood 

that this is a non-personal services contract, 

as defined in Federal Acquisition Regulation 

(FAR) 37.101, under which the professional 

services rendered by the Contractor or its 

health-care providers are rendered in its 

capacity as an independent contractor. The 

Government may evaluate the quality of 

professional and administrative services 

provided but retains no control over 

professional aspects of the services rendered 

including, by example, the Contractor’s or its 

health-care providers’ professional medical 

judgment, diagnosis, or specific medical 

treatments. The Contractor and its healthcare providers shall be liable for their 

liability-producing acts or omissions. The 

Contractor shall maintain or require all 

health-care providers performing under this 

contract to maintain, during the term of this 

contract, professional liability insurance 

issued by a responsible insurance carrier of 

not less than the following amount(s) per 

specialty per occurrence: [Contracting 

Officer’s Note: Insert the dollar amount 

value(s) of standard coverage(s) prevailing 

within the local community as to the specific 

medical specialty, or specialties, concerned, 

or such higher amount as the Contracting 

Officer deems necessary to protect the 

Government’s interests.] However, if the 

Contractor is an entity or a subdivision of a 

State that either provides for self-insurance 

or limits the liability or the amount of 

insurance purchased by State entities, then 

the insurance requirement of this contract 

shall be fulfilled by incorporating the 

provisions of the applicable State law. 

(b) An apparently successful offeror, upon 

request of the Contracting Officer, shall, prior 

to contract award, furnish evidence of the 

insurability of the offeror and/or of all healthcare providers who will perform under this 

contract. The submission shall provide 

evidence of insurability concerning the 

medical liability insurance required by 

paragraph (a) of this clause or the provisions 

of State law as to self-insurance, or 

limitations on liability or insurance. 

(c) The Contractor shall, prior to 

commencement of services under the 

contract, provide to the Contracting Officer 

Certificates of Insurance or insurance policies 

evidencing the required insurance coverage 

and an endorsement stating that any 

cancellation or material change adversely 

affecting the Government’s interest shall not 

be effective until 30 days after the insurer or 

the Contractor gives written notice to the 

Contracting Officer. Certificates or policies 

shall be provided for the Contractor and/or 

each health-care provider who will perform 

under this contract. 

(d) The Contractor shall notify the 

Contracting Officer within 5 days of 

becoming aware of a change in insurance 

providers during the performance period of 

this contract for all health-care providers 

performing under this contract. The 

notification shall provide evidence that the 

Contractor and/or health-care providers will 

meet all the requirements of this clause, 

including those concerning liability 

insurance and endorsements. These 

requirements may be met either under the 

new policy, or a combination of old and new 

policies, if applicable. 

(e) The Contractor shall insert the 

substance of this clause, including this 

paragraph (e), in all subcontracts for healthcare services under this contract. The 

Contractor shall be responsible for 

compliance by any subcontractor or lowertier subcontractor with the provisions set 

forth in paragraph (a) of this clause. At least 

5 days before the commencement of work by 

any subcontractor, the Contractor shall 

furnish to the Contracting Officer evidence of 

such insurance. 

(End of clause) 

■ 47. Section 852.237–71 is added to 

read as follows: 

852.237–71 Nonsmoking Policy for 

Children’s Services. 

As prescribed in 837.403–70(b), insert 

the following clause: 

Nonsmoking Policy for Children’s 

Services (Date) 

(a) Smoking in facilities where certain 

federally funded children’s services are 

provided shall be prohibited. The ProChildren Act of 2001 (20 U.S.C. 7181–7183) 

prohibits smoking within any indoor facility 

(or portion thereof), whether owned, leased, 

or contracted for, that is used for the routine 

or regular provision of health or day care 

services that are provided to children under 

the age of 18. The statutory prohibition also 

applies to indoor facilities that are 

constructed, operated, or maintained with 

Federal funds. 


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Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules 45383 

(b) By acceptance of this contract or order, 

the Contractor agrees to comply with the 

requirements of the Act. The Act also applies 

to all subcontracts awarded under this 

contract for the specified children’s services. 

Accordingly, the Contractor shall ensure that 

each of its employees, and any subcontractor 

staff, is made aware of, understands, and 

complies with the provisions of the Act. 

Failure to comply with the Act may result in 

the imposition of a civil monetary penalty in 

an amount not to exceed $1,000 for each 

violation and/or the imposition of an 

administrative compliance order on the 

responsible entity. Each day a violation 

continues constitutes a separate violation. 

(End of clause) 

■ 48. Section 852.237–72 is added to 

read as follows: 

852.237–72 Crime Control Act—Reporting 

of Child Abuse. 

As prescribed in 837.403–70(c), insert 

the following clause: 

Crime Control Act—Reporting of Child 

Abuse (Date) 

(a) Public Law 101–647, also known as the 

Crime Control Act of 1990 (Act), imposes 

responsibilities on certain individuals who, 

while engaged in a professional capacity or 

activity, as defined in the Act, on Federal 

land or in a federally-operated (or contracted) 

facility, learn of facts that give the individual 

reason to suspect that a child has suffered an 

incident of child abuse. 

(b) The Contractor shall comply with the 

requirements of the Act. The Act also applies 

to all applicable subcontracts awarded under 

this contract. Accordingly, the Contractor 

shall ensure that each of its employees, and 

any subcontractor staff, is made aware of, 

understands, and complies with the 

provisions of the Act. 

(End of clause) 

■ 49. Section 852.237–73 is added to 

read as follows: 

852.237–73 Crime Control Act— 

Requirement for Background Checks. 

As prescribed in 837.403–70(d), insert 

the following clause: 

Crime Control Act of 1990— 

Requirement for Background Checks 

(Date) 

(a) Public Law 101–647, also known as the 

Crime Control Act of 1990 (Act), requires that 

all individuals involved with the provision of 

child care services, as defined in the Act, to 

children under the age of 18 undergo a 

criminal background check. 

(b) The Contracting Officer will provide the 

necessary information to the Contractor 

regarding the process for obtaining the 

background check. The Contractor may hire 

a staff person provisionally prior to the 

completion of a background check, if at all 

times prior to the receipt of the background 

check during which children are in the care 

of the newly-hired person, the person is 

within the sight and under the supervision of 

a previously investigated staff person. 

(c) The Contractor shall comply with the 

requirements of the Act. The Act also applies 

to all applicable subcontracts awarded under 

the contract. Accordingly, the Contractor 

shall ensure that each of its employees, and 

any subcontractor staff, is made aware of, 

understands, and complies with the 

provisions of the Act. 

(End of clause) 

■ 50. Section 852.237–74 is added to 

read as follows: 

852.237–74 Non-Discrimination in Service 

Delivery. 

As prescribed in 837.110–70(a), the 

Contracting Officer shall insert the 

following clause in solicitations and 

contracts: 

Non-Discrimination in Service Delivery 

(Date) 

It is the policy of the Department of 

Veterans Affairs that no person otherwise 

eligible will be excluded from participation 

in, denied the benefits of, or subjected to 

discrimination in the administration of VA 

programs and services based on non-merit 

factors such as race, color, national origin, 

religion, sex, gender identity, sexual 

orientation, or disability (physical or mental). 

By acceptance of this contract, the contractor 

agrees to comply with this policy in 

supporting the program and in performing 

the services called for under this contract. 

The contractor shall include this clause in all 

sub-contracts awarded under this contract for 

supporting or performing the specified 

program and services. Accordingly, the 

contractor shall ensure that each of its 

employees, and any sub-contractor staff, is 

made aware of, understands, and complies 

with this policy. 

(End of clause) 

■ 51. Section 852.237–75 is added to 

read as follows: 

852.237–75 Key Personnel. 

As prescribed in 837.110–70(b), insert 

the following clause: 

Key Personnel (Date) 

The key personnel specified in this 

contract are considered to be essential to 

work performance. At least 30 days prior to 

the contractor voluntarily diverting any of 

the specified individuals to other programs 

or contracts the Contractor shall notify the 

Contracting Officer and shall submit a 

justification for the diversion or replacement 

and a request to replace the individual. The 

request must identify the proposed 

replacement and provide an explanation of 

how the replacement’s skills, experience, and 

credentials meet or exceed the requirements 

of the contract. If the employee of the 

contractor is terminated for cause or 

separates from the contractor voluntarily 

with less than thirty days notice, the 

Contractor shall provide the maximum notice 

practicable under the circumstances. The 

Contractor shall not divert, replace, or 

announce any such change to key personnel 

without the written consent of the 

Contracting Officer. The contract will be 

modified to add or delete key personnel as 

necessary to reflect the agreement of the 

parties. 

(End of clause) 

■ 52. Section 852.237–76 is added to 

read as follows: 

852.237–76 Award to Single Offeror. 

As prescribed in 837.7001(a)(1), insert 

the following provision: 

Award to Single Offeror (Date) 

(a) Award shall be made to a single offeror. 

(b) Offerors shall include unit prices for 

each item. Failure to include unit prices for 

each item will be cause for rejection of the 

entire offer. 

(c) The Government will evaluate offers on 

the basis of the estimated quantities shown. 

(d) Award will be made to that responsive, 

responsible offeror whose total aggregate 

offer is the lowest price to the Government. 

(End of provision) 

Alternate I (DATE). As prescribed in 

837.7001(a)(2), insert the following 

paragraph (d) in lieu of paragraph (d) of 

the basic provision: 

(d) Award will be made to that 

responsive, responsible offeror whose 

total aggregate offer is in the best 

interest of the Government. 

■ 53. Section 852.237–77 is added to 

read as follows: 

852.237–77 Area of Performance. 

As prescribed in 837.7001(b)(1), insert 

the following clause: 

Area of Performance (Date) 

(a) The area of performance is as specified 

in the contract. 

(b) The Contractor shall take possession of 

the remains at the place where they are 

located, transport them to the Contractor’s 

place of preparation, and later transport them 

to a place designated by the Contracting 

Officer. 

(c) The Contractor will not be reimbursed 

for transportation when both the place where 

the remains were located and the delivery 

point are within the area of performance. 

(d) If remains are located outside the area 

of performance, the Contracting Officer may 

place an order with the Contractor under this 

contract or may obtain the services 

elsewhere. If the Contracting Officer requires 

the Contractor to transport the remains into 

the area of performance, the Contractor shall 

be paid the amount per mile in the schedule 

for the number of miles required to transport 

the remains by a reasonable route from the 

point where located to the boundary of the 

area of performance. 

(e) The Contracting Officer may require the 

Contractor to deliver remains to any point 

within 100 miles of the area of performance. 

In this case, the Contractor shall be paid the 

amount per mile in the schedule for the 

number of miles required to transport the 

remains by a reasonable route from the 

boundary of the area of performance to the 

delivery point. 


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45384 Federal Register / Vol. 83, No. 174 / Friday, September 7, 2018 / Proposed Rules 

(End of clause) 

■ 54. Section 852.237–78 is added to 

read as follows: 

852.237–78 Performance and Delivery. 

As prescribed in 837.7001(b)(2), insert 

the following clause: 

Performance and Delivery (Date) 

(a) The Contractor shall furnish the 

material ordered and perform the services 

specified as promptly as possible, but not 

later than 36 hours after receiving 

notification to remove the remains, excluding 

the time necessary for the Government to 

inspect and check results of preparation. 

(b) The Government may, at no additional 

charge, require the Contractor to hold the 

remains for an additional period not to 

exceed 72 hours from the time the remains 

are casketed and final inspection is 

completed. 

(End of clause) 

■ 55. Section 852.237–79 is added to 

read as follows: 

852.237–79 Subcontracting. 

As prescribed in 837.7001(b)(3), insert 

the following clause: 

Subcontracting (Date) 

The Contractor shall not subcontract any 

work under this contract without the 

Contracting Officer’s written approval. This 

clause does not apply to contracts of 

employment between the Contractor and its 

personnel. 

(End of clause) 

■ 56. Section 852.237–80 is added to 

read as follows: 

852.237–80 Health Department and 

Transport Permits. 

As prescribed in 837.7001(b)(4), insert 

the following clause: 

Health Department and Transport 

Permits (Date) 

The Contractor shall meet all State and 

local licensing requirements and obtain and 

furnish all necessary health department and 

shipping permits at no additional cost to the 

Government. The Contractor shall ensure that 

all necessary health department permits are 

in order for disposition of the remains. 

(End of clause) 

■ 57. Section 852.249–70 is added to 

read as follows: 

852.249–70 Termination for Default— 

Supplement for Mortuary Services. 

As prescribed in 849.504–70, insert 

the following clause: 

Termination for Default—Supplement 

for Mortuary Services (Date) 

The clause entitled ‘‘Default’’ in FAR 

52.249–8, is supplemented as follows: 

The Contracting Officer may terminate this 

contract for default by written notice without 

the ten-day notice required by paragraph 

(a)(2) of the Default clause if— 

(a) The Contractor, through circumstances 

reasonably within its control or that of its 

employees, performs any act under or in 

connection with this contract, or fails in the 

performance of any service under this 

contract and the act or failures may 

reasonably be considered to reflect discredit 

upon the Department of Veteran Affairs in 

fulfilling its responsibility for proper care of 

remains; 

(b) The Contractor, or its employees, 

solicits relatives or friends of the deceased to 

purchase supplies or services not under this 

contract. (The Contractor may furnish 

supplies or arrange for services not under 

this contract, only if representatives of the 

deceased voluntarily request, select, and pay 

for them.); 

(c) The services or any part of the services 

are performed by anyone other than the 

Contractor or the Contractor’s employees 

without the written authorization of the 

Contracting Officer; 

(d) The Contractor refuses to perform the 

services required for any particular remains; 

or 

(e) The Contractor mentions or otherwise 

uses this contract in its advertising in any 

way. 

(End of clause) 

852.271–70 [Removed and Reserved] 

■ 58. Section 852.271–70 is removed 

and reserved. 

PART 871—LOAN GUARANTY AND 

VOCATIONAL REHABILITATION AND 

EMPLOYMENT PROGRAMS 

■ 59. The authority citation for part 871 

is revised to read as follows: 

Authority: 40 U.S.C. 121(c); 41 U.S.C. 

1121(c)(3); 41 U.S.C. 1702; and 48 CFR 

1.301–1.304. 

Subpart 871.2—Vocational 

Rehabilitation and Employment 

Service 

■ 60. Section 871.212 is revised to read 

as follows: 

871.212 Contract clauses. 

(a) Contracting officers shall use the 

following clauses, as appropriate, in 

solicitations and contracts for vocational 

rehabilitation and employment services 

as they pertain to training and 

rehabilitation services and contracts for 

counseling services: 

(1) 852.271–72 Time Spent by 

Counselee in Counseling Process. 

(2) 852.271–73 Use and Publication 

of Counseling Results. 

(3) 852.271–74 Inspection. 

(4) 852.271–75 Extension of Contract 

Period. 

(b) See 837.110–70(a) for clause 

852.237–74 Non-discrimination in 

Service Delivery. 

[FR Doc. 2018–18310 Filed 9–6–18; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

48 CFR Parts 801, 825, 836, 842, 846, 

852 and 853 

RIN 2900–AQ18 

VA Acquisition Regulation: 

Construction and Architect-Engineer 

Contracts 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is proposing to amend and 

update its VA Acquisition Regulation 

(VAAR) in phased increments to revise 

or remove any policy superseded by 

changes in the Federal Acquisition 

Regulation (FAR), to remove procedural 

guidance internal to VA into the VA 

Acquisition Manual (VAAM), and to 

incorporate any new agency specific 

regulations or policies. These changes 

seek to streamline and align the VAAR 

with the FAR and remove outdated and 

duplicative requirements and reduce 

burden on contractors. The VAAM 

incorporates portions of the removed 

VAAR as well as other internal agency 

acquisition policy. VA will rewrite 

certain parts of the VAAR and VAAM, 

and as VAAR parts are rewritten, will 

publish them in the Federal Register. 

VA will combine related topics, as 

appropriate. In particular, this 

rulemaking revises VAAR concerning 

Construction and Architect-Engineer 

Contracts, as well as affected parts 

covering the Department of Veterans 

Affairs Acquisition Regulations System, 

Foreign Acquisition, Contract 

Administration and Audit Services, 

Quality Assurance, Solicitation 

Provisions and Contract Clauses, and 

Forms. 

DATES: Comments must be received on 

or before November 6, 2018 to be 

considered in the formulation of the 

final rule. 

ADDRESSES: Written comments may be 

submitted through 

www.Regulations.gov; by mail or handdelivery to Director, Regulation Policy 

and Management (00REG), Department 

of Veterans Affairs, 810 Vermont 

Avenue NW, Room 1063B, Washington, 

DC 20420; or by fax to (202) 273–9026 

(this is not a toll-free number). 

Comments should indicate that they are 


daltland on DSKBBV9HB2PROD with PROPOSALS