[Federal Register Volume 63, Number 61 (Tuesday, March 31, 1998)]
[Rules and Regulations]
[Pages 15318-15320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8004]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 833 and 852
RIN 2900-AI51
VA Acquisition Regulations: Department Protests
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Department of Veterans Affairs (VA)
Acquisition Regulations (VAAR) to delete coverage that duplicates or
conflicts with the Federal Acquisition Regulation; to delete internal
agency guidance to contracting officers; to delete obsolete references
to the General Services Administration Board of Contract Appeals; to
incorporate changes made by Federal Acquisition Circular (FAC) 90-40,
Item XIII and FAC 90-45, Item XII; to publish VA policy regarding the
availability of staff of the VA Board of Contract Appeals to serve as
third-party neutrals in alternative dispute resolution proceedings; and
to update clauses and references. These changes implement VA policy and
are required to ensure that the VAAR corresponds with the requirements
of the Federal Acquisition Regulation and public law.
DATES: Effective Date: April 30, 1998.
FOR FURTHER INFORMATION CONTACT: Don Kaliher, Acquisition Policy Team
(95A), Office of Acquisition and Materiel Management, Department of
Veterans Affairs, 810 Vermont Avenue, NW, Washington DC 20420, (202)
273-8819.
SUPPLEMENTARY INFORMATION: On September 9, 1997, we published in the
Federal Register (62 FR 47411) a proposal to amend the Department of
Veterans Affairs Acquisition Regulations to make changes relating to
Department protests. Comments were solicited concerning the proposal
for 60 days, ending November 10, 1997. We did not receive any comments.
The information presented in the proposed rule document still provides
a basis for this final rule. Therefore, based on the rationale set
forth in the proposed rule document, we are adopting the provisions of
the proposed rule as a final rule with no changes, except for
nonsubstantive changes to reflect the date of this final rule for each
clause and to provide a new clause number for one of the clauses
included in the rule.
The Secretary hereby certifies that this final rule would not have
a significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C.
601-612. This rule will have minuscule effect, if any, on small
businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is
exempt from the initial and final regulatory flexibility analysis
requirements of sections 603 and 604.
List of Subjects
48 CFR Part 833
Administrative practices and procedure, Government procurement.
48 CFR Part 852
Government procurement, Reporting and recordkeeping.
Approved: March 18, 1998.
Togo D. West, Jr.,
Acting Secretary.
For the reasons set forth in the preamble, 48 CFR parts 833 and 852
are amended as follows:
1. The authority citation for parts 833 and 852 continues to read
as follows:
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
PART 833--PROTESTS, DISPUTES, APPEALS
Subpart 833.1--Protests
Sec. 833.102 [Amended]
2. Section 833.102 introductory text is amended by removing
``852.233-2'' and adding, in its place, ``FAR provision 52.233-2''. It
is further amended by removing ``or the GSA Board of Contract Appeals
(GSBCA)''; and paragraph (b) is amended by removing ``(95B)'' and
adding, in its place, ``, Acquisition Administration Team''.
3. In Sec. 833.103, paragraph (a)(1) is revised to read as follows:
Sec. 833.103 Protests to the Department.
(a) Filing of protests. (1) An interested party may protest to the
contracting officer or, as an alternative, may request an independent
review by filing a protest with the Deputy Assistant Secretary for
Acquisition and Materiel Management, Acquisition Administration Team,
or, for solicitations issued by the Office of Facilities Management,
the Chief Facilities Management Officer, Office of Facilities
Management. A protest filed with the Deputy Assistant Secretary for
Acquisition and Materiel Management or the Chief Facilities Management
Officer will not be considered if the interested party has a protest on
the same or similar issues pending with the contracting officer.
* * * * *
4. In Sec. 833.103, paragraph (a)(2)(ii) is amended by removing
``Review Division'' and adding, in its place, ``Administration Team'';
paragraphs (a)(3) and (a)(4) are removed; paragraph (a)(5) is
redesignated as paragraph (a)(3); newly redesignated paragraph
(a)(3)(vi) is removed; paragraphs (a)(3)(vii) through (a)(3)(ix) are
redesignated as paragraphs (a)(3)(vi) through (a)(3)(viii),
respectively.
5. In Sec. 833.103, paragraph (c) is removed; paragraph (b) is
redesignated as a new paragraph (c) and is revised
[[Page 15319]]
and a new paragraph (b) is added to read as follows:
Sec. 833.103 Protests to the Department.
* * * * *
(b) Where appropriate, alternative dispute resolution (ADR)
procedures may be used to resolve protests at any stage in the protest
process. The Department of Veterans Affairs Board of Contract Appeals
(VABCA) is an independent and neutral entity within the Department of
Veterans Affairs and is available to serve as the third-party neutral
(Neutral) for bid protests. If ADR is used, the Department of Veterans
Affairs will not furnish any documentation in an ADR proceeding beyond
what is allowed by the Federal Acquisition Regulation.
(c) Action upon receipt of protest. For protests filed with the
contracting officer, the head of the contracting activity (HCA) shall
be the approving official for the determinations identified in FAR
33.103(f)(1) and (f)(3). If the HCA is also the contracting officer,
the approving official shall be the Deputy Assistant Secretary for
Acquisition and Materiel Management. For protests filed with the Deputy
Assistant Secretary for Acquisition and Materiel Management,
Acquisition Administration Team, or the Chief Facilities Management
Officer, Office of Facilities Management, those individuals shall be
the approving officials for the determinations identified in FAR
33.103(f)(1) and (f)(3).
* * * * *
6. In Sec. 833.103, paragraph (d) is amended by removing ``lodged''
and adding, in its place, ``filed''; by removing ``he/she'' each time
it appears and adding, in its place, ``the contracting officer''; by
removing ``Review Division'' and adding, in its place, ``Administration
Team''; and by removing ``officer will'' and adding, in its place,
``officer shall''.
7. In Sec. 833.103, paragraph (e) is revised and paragraph (f) is
added to read as follows:
Sec. 833.103 Protests to the Department.
* * * * *
(e) Protest after award. When a written protest is filed with the
contracting officer after contract award:
(1) If FAR 33.103(f)(3) requires suspension of contract
performance, the contracting officer shall seek to obtain a mutual
agreement with the contractor to suspend performance on a no-cost basis
and, if successful, shall document the suspension with a supplemental
agreement. If unsuccessful, the contracting officer shall issue a stop-
work order in accordance with contract clause FAR 52.233-3, Protest
After Award.
(2) If suspension of contract performance is not required by FAR
33.103(f)(3) and if the contracting officer determines that the award
was proper, the contracting officer shall furnish the protester a
written explanation of the basis for the award which is responsive to
the allegations of the protest. The contracting officer shall advise
the protester that the protester may appeal the determination to the
Deputy Assistant Secretary for Acquisition and Materiel Management,
Acquisition Administration Team, or the Chief Facilities Management
Officer, Office of Facilities Management, in the case of a contract
awarded by the Office of Facilities Management, or the Comptroller
General, as specified in internal Department guidance.
(3) If suspension of contract performance is not required by FAR
33.103(f)(3) but the contracting officer determines that the award is
questionable, the contracting officer may consult with the Office of
the General Counsel (025) and shall advise the contractor of the
protest and invite the contractor to submit comments and relevant
information. The contracting officer shall submit the case promptly to
the Deputy Assistant Secretary for Acquisition and Materiel Management,
Acquisition Administration Team, or the Chief Facilities Management
Officer, Office of Facilities Management, in the case of a contract
awarded by the Office of Facilities Management, who may consult with
the Office of the General Counsel (025) and who shall either advise the
contracting officer of the appropriate action to take, or submit the
case to the Comptroller General for a decision. The contracting officer
shall provide interested parties with a copy of the final decision.
(f) Agency appellate review of contracting officer's protest
decision. An interested party may request an independent review of a
contracting officer's protest decision by filing an appeal with the
Deputy Assistant Secretary for Acquisition and Materiel Management or,
for solicitations issued by the Office of Facilities Management, with
the Chief Facilities Management Officer, Office of Facilities
Management. To be considered timely, the appeal must be received by the
Deputy Assistant Secretary for Acquisition and Materiel Management or,
for solicitations issued by the Office of Facilities Management, by the
Chief Facilities Management Officer, Office of Facilities Management,
within 10 calendar days of the date the interested party knew, or
should have known, whichever is earlier, of the basis for the appeal.
Appeals shall be addressed as provided in paragraphs (a)(2)(ii) or
(iii) of this section. Appeals shall not extend GAO's timeliness
requirements for appeals to GAO. By filing an appeal as provided
herein, an interested party may waive its rights to further appeal to
the Comptroller General at a later date. Agency responses to appeals
submitted to the agency shall be reviewed and concurred in by the
Office of the General Counsel (025).
Sec. 833.105 [Removed]
8. Section 833.105 is removed.
9. Section 833.106 is revised to read as follows:
Sec. 833.106 Solicitation provision.
(a) The contracting officer shall insert the provision at 852.233-
70, Protest Content, in each solicitation where the total value of all
contract awards under the solicitation is expected to exceed the
simplified acquisition threshold.
(b) The contracting officer shall insert the provision at 852.233-
71, Alternate Protest Procedure, in each solicitation where the total
value of all contract awards under the solicitation is expected to
exceed the simplified acquisition threshold.
Subpart 833-2--Disputes and Appeals
10. Section 833-214 is added to read as follows:
Sec. 833.214 Alternative dispute resolution (ADR).
(a) Contracting officers and contractors are encouraged to use
alternative dispute resolution (ADR) procedures to resolve contract
disputes before they become appealable disputes by using the Department
of Veterans Affairs' ADR Program.
(b) Under the Department's ADR Program, the Department of Veterans
Affairs Board of Contract Appeals (VABCA or Board) Chair, who is the
Department's Dispute Resolution Specialist, will appoint a Board member
or hearing examiner (at no cost to either party) to serve as a Neutral
to aid in resolving matters before they become appealable disputes. The
administrative judges and hearing examiners are trained Neutrals and
are available to assist in ADR proceedings.
(c) Under the ADR Program, the parties are able to select the ADR
process they believe will help resolve the matter. Everything discussed
during the ADR meeting is confidential. In the event a Board member
serves as a Neutral in a matter that is not resolved using ADR, that
Board member shall keep all discussions confidential and
[[Page 15320]]
shall have no further input or contact with the parties or other Board
members in subsequent Board activities (ref. the Administrative Dispute
Resolution Act, 5 U.S.C. 571-583; and, Federal Acquisition Regulation,
Subpart 33.2).
(d) The Department of Veterans Affairs and contractors are also
encouraged to use ADR in disputes appealed to the VABCA.
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
Subpart 852.2--Texts of Provisions and Clauses
11. Section 852.233-70 is revised to read as follows:
Sec. 852.233-70 Protest content.
As prescribed in 833.106 of this chapter, insert the following
provision in each solicitation where the total value of all contract
awards under the solicitation is expected to exceed the simplified
acquisition threshold:
Protest Content (Jan 1998)
(a) Any protest filed by an interested party shall:
(1) Include the name, address, fax number, and telephone number
of the protester;
(2) Identify the solicitation and/or contract number;
(3) Include an original signed by the protester or the
protester's representative, and at least one copy;
(4) Set forth a detailed statement of the legal and factual
grounds of the protest, including a description of resulting
prejudice to the protester, and provide copies of relevant
documents;
(5) Specifically request a ruling of the individual upon whom
the protest is served;
(6) State the form of relief requested; and
(7) Provide all information establishing the timeliness of the
protest.
(b) Failure to comply with the above may result in dismissal of
the protest without further consideration.
(End of Provision)
12. Section 852.233-71 is added to read as follows:
Sec. 852.233-71 Alternate Protest Procedure.
As prescribed in 833.106 of this chapter, insert the following
provision in each solicitation where the total value of all contract
awards under the solicitation is expected to exceed the simplified
acquisition threshold:
Alternate Protest Procedure (Jan 1998)
As an alternative to filing a protest with the contracting
officer, an interested party may file a protest with the Deputy
Assistant Secretary for Acquisition and Materiel Management,
Acquisition Administration Team, Department of Veterans Affairs, 810
Vermont Avenue, NW, Washington, DC, 20420, or, for solicitations
issued by the Office of Facilities Management, the Chief Facilities
Management Officer, Office of Facilities Management, 810 Vermont
Avenue, NW, Washington, DC 20420. The protest will not be considered
if the interested party has a protest on the same or similar issues
pending with the contracting officer.
Sec. 852.236-73 [Removed]
13. Section 852.236-73 is removed.
[FR Doc. 98-8004 Filed 3-30-98; 8:45 am]
BILLING CODE 8320-01-P
