[Federal Register Volume 62, Number 164 (Monday, August 25, 1997)]
[Proposed Rules]
[Pages 44932-44945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-21869]
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DEPARTMENT OF VETERANS AFFAIRS
48 CFR Parts 810, 811, 812, 836, 852 and 870
RIN 2900-AI05
VA Acquisition Regulations: Commercial Items
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend the Department of Veterans
Affairs Acquisition Regulations (VAAR) concerning the acquisition of
commercial items. It is proposed to amend VAAR provisions to conform to
[[Page 44933]]
the Federal Acquisition Regulation (FAR), to delete obsolete references
and titles, to update references and titles, to reorganize material and
to remove obsolete material. This document also proposes to set forth
VAAR provisions and clauses for use by contracting officers for
commercial item solicitations and contracts. These provisions and
clauses appear to be warranted for use in commercial item solicitations
and contracts. This document also requests Paperwork Reduction Act
comments concerning collection of information regarding clauses and
provisions for use in both commercial and non-commercial item, service,
and construction solicitations and contracts.
DATES: Comments must be received on or before October 24, 1997.
ADDRESSES: Mail or hand deliver written comments to: Director, Office
of Regulations Management (02D), Department of Veterans Affairs, 810
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should
indicate that they are submitted in response to ``RIN 2900-AI05.'' All
written comments will be available for public inspection in the Office
of Regulations Management, Room 1158, between the hours of 8:00 a.m.
and 4:30 p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Don Kaliher, Acquisition Policy Team
(95A), Office of Acquisition and Materiel Management, Department of
Veterans Affairs, 810 Vermont Ave., NW, Washington DC 20420, (202) 273-
8819.
SUPPLEMENTARY INFORMATION:
Background
This document proposes to transfer to Part 811 the material
currently contained in Parts 810 and 812 to conform to the
corresponding numbering of the FAR, to renumber and rename other
provisions to conform to the FAR, to delete obsolete references and
titles, and to update references and titles.
Regulations in the FAR that required the use of Federal
specifications have been removed. Accordingly, implementing and
supplementing regulations contained in VAAR Part 810 regarding
mandatory use of Federal specifications are proposed to be removed to
correspond with the FAR.
The VAAR contains a number of provisions and clauses set forth in
Part 852. This document proposes to amend VAAR Part 812.301 to
incorporate certain of those provisions and clauses specifically for
use in VA commercial item solicitations and contracts. Contracting
officers would use these provisions and clauses where appropriate for
commercial item solicitations and contracts that exceed the micro-
purchase threshold. The provisions and clauses could be used by
contracting officers for commercial item procurements below the micro-
purchase threshold when determined by the contracting officer to be in
the Government's best interest. The FAR, at 48 CFR 12.301(f), states
that agencies may supplement the provisions and clauses prescribed in
Part 12 of the FAR as necessary to reflect agency unique statutes
applicable to the acquisition of commercial items or as may be approved
by the agency senior procurement executive. These provisions and
clauses have been approved by the VA Senior Procurement Executive
specifically for use in commercial item solicitations and contracts.
Accordingly, it is proposed that the following VAAR provisions and
clauses, which are set forth at 48 CFR Chapter 8, Part 852, would apply
to commercial item solicitations and contracts for the reasons stated.
Veteran-Owned Small Business
1. 852.219-70, Veteran-Owned Small Business (DEC 1990). The offeror
represents that the firm submitting this offer (----) is (----) is not,
a veteran-owned small business, (----) is (----) is not, a Vietnam era
veteran-owned small business, and (----) is (----) is not, a disabled
veteran-owned small business. A veteran-owned small business is defined
as a small business, at least 51 percent of which is owned by a veteran
who also controls and operates the business. Control in this context
means exercising the power to make policy decisions. Operate in this
context means actively involved in the day-to-day management. For the
purpose of this definition, eligible veterans include:
(a) A person who served in the U.S. Armed Forces and who was
discharged or released under conditions other than dishonorable.
(b) Vietnam era veterans who served for a period of more than 180
days, any part of which was between August 5, 1964, and May 7, 1975,
and were discharged under conditions other than dishonorable.
(c) Disabled veterans with a minimum compensable disability of 30
percent, or a veteran who was discharged for disability. Failure to
execute this representation will be deemed a minor informality and the
bidder or offeror shall be permitted to satisfy the requirement prior
to award (see FAR 14.405).
(End of Provision)
The above Veteran-Owned Small Business provision would help support
VA's policy to assist small businesses owned by veterans or by disabled
veterans. The information gathered would allow VA to ensure that such
firms are given an opportunity to participate in VA acquisitions.
Without such information, VA's outreach efforts would be hindered.
Commercial Advertising
2. 852.270-4, Commercial Advertising (NOV 1984).
The bidder or offeror agrees that if a contract is awarded to him/
her, as a result of this solicitation, he/she will not advertise the
award of the contract in his/her commercial advertising in such a
manner as to state or imply that the Department of Veterans Affairs
endorses a product, project or commercial line of endeavor.
(End of clause)
The above Commercial Advertising clause is required to ensure that
firms do not imply or claim in their advertising that VA endorses the
firms' products or services.
Guarantee
3. 852.210-71, Guarantee (NOV 1984).
The contractor guarantees the equipment against defective material,
workmanship and performance for a period of [ ],* said guarantee to
run from date of acceptance of the equipment by the Government. The
contractor agrees to furnish, without cost to the Government,
replacement of all parts and material which are found to be defective
during the guarantee period. Replacement of material and parts will be
furnished to the Government at the point of installation, if
installation is within the continental United States, or f.o.b. the
continental U.S. port to be designated by the contracting officer if
installation is outside of the continental United States. Cost of
installation of replacement material and parts shall be borne by the
contractor.**
(End of clause)
*Normally, insert one year. If industry policy covers a shorter
or longer period, i.e., 90 days or for the life of the equipment,
insert such period.
**The above clause will be modified to conform to standards of
the industry involved.
Regarding the above Guarantee clause, the FAR does not have a
guarantee clause. Rather, contracting officers are expected to draft
individual clauses for each acquisition. This clause is drafted to
conform to commercial practices,
[[Page 44934]]
would reduce VA administrative costs when drafting solicitations, and
would assist VA contracting officers by having a uniform guarantee
clause for use in all acquisitions.
Rejected Goods
Contracting officers may include the following clause in contracts
for property, except for contracts for packing house and dairy
products, bread and bakery products, and for fresh and frozen fruits
and vegetables.
4. 852.210-72, Rejected Goods (NOV 1984).
Rejected goods will be held subject to contractor's order for not
more than 15 days, after which the rejected merchandise will be
returned to the contractor's address at his/her risk and expense.
Expenses incident to the examination and testing of materials or
supplies which have been rejected will be charged to the contractor's
account.
(End of clause)
Contracts for packing house and dairy products, bread and bakery
products, and for fresh and frozen fruits and vegetables would contain
the following clause:
5. 852.210-72, Rejected Goods (NOV 1984).
The contractor shall remove rejected supplies within 48 hours after
notice of rejection. Supplies determined to be unfit for human
consumption will not be removed without permission of the local health
authorities. Supplies not removed within the allowed time may be
destroyed. The Department of Veterans Affairs will not be responsible
for nor pay for products rejected. The contractor will be liable for
costs incident to examination of rejected products.
(End of clause)
Regarding the two above Rejected Goods clauses, the FAR does not
include a clause on how to handle rejected goods. The Uniform
Commercial Code (UCC) provides that a buyer (VA) is under a duty to
hold rejected goods for a time sufficient to permit the seller to
remove them. The clause numbered as ``4'' sets forth a 15-day limit on
holding nonperishable goods and the clause numbered as ``5'' sets forth
a 48-hour limit on holding perishable goods. We believe that these
clauses do not conflict with commercial practices and that they set
forth reasonable time limits for holding rejected goods.
Frozen Processed Foods
6. 852.210-73, Frozen Processed Foods (NOV 1984).
The products delivered under this contract shall be in excellent
condition; shall not show evidence of defrosting, refreezing, or
freezer burn; and shall be transported and delivered to the consignee
at a temperature of 0 degrees Fahrenheit or lower.
(End of clause)
The above Frozen Processed Foods clause specifies the minimum
acceptable condition of frozen foods upon delivery. The FAR does not
contain similar requirements. VA purchases large quantities of frozen
foods and this clause is proposed for use in VA's commercial item
acquisitions to ensure receipt of acceptable products.
Special Notice
7. 852.210-74, Special Notice (APR 1984).
Descriptive literature. The submission of descriptive literature
with offers is not required and voluntarily submitted descriptive
literature which qualifies the offer will require rejection of the
offer.
However, within 5 days after award of contract, the contractor will
submit to the contracting officer literature describing the equipment
he/she intends to furnish and indicating strict compliance with the
specification requirements.
The contracting officer will, by written notice to the contractor
within 20 calendar days after receipt of the literature, approve,
conditionally approve, or disapprove the equipment proposed to be
furnished. The notice of approval or conditional approval will not
relieve the contractor from complying with all requirements of the
specifications and all other terms and conditions of this contract. A
notice of conditional approval will state any further action required
of the contractor. A notice of disapproval will cite reasons therefor.
If the equipment is disapproved by the Government, the contractor
will be subject to action under the Default provision of this contract.
However, prior to default action the contractor will be permitted a
period (at least 10 days) under that clause to submit additional
descriptive literature on equipment originally offered or descriptive
literature on other equipment.
The Government reserves the right to require an equitable
adjustment of the contract price for any extension of the delivery
schedule necessitated by additional descriptive literature evaluations.
(End of provision)
The above Special Notice provision concerns the submission of
descriptive literature and is used only in telephone system
acquisitions. There is no corresponding FAR coverage. This clause is
proposed for use in VA's telephone system commercial item acquisitions.
Because of the high installation costs for telephone equipment, the
added emphasis on ensuring the capability of the equipment to meet
specification requirements prior to installation appears to be
warranted.
Technical Industry Standards
8. 852.210-75, Technical Industry Standards (APR 1984).
The supplies or equipment required by this invitation for bid or
request for proposal must conform to the standards of the [ ]* and [
]* as to [ ]**. The successful bidder or offeror will be required to
submit proof that the item(s) he/she furnishes conforms to this
requirement. This proof may be in the form of a label or seal affixed
to the equipment or supplies, warranting that they have been tested in
accordance with and conform to the specified standards. The seal or
label of any nationally recognized laboratory such as those listed by
the National Fire Protection Association, Boston, Massachusetts, in the
current edition of their publication ``Research on Fire,'' is
acceptable. Proof may also be furnished in the form of a certificate
from one of these laboratories certifying that the item(s) furnished
have been tested in accordance with and conform to the specified
standards.
(End of provision)
* Insert name(s) of organization(s), the standards of which are
pertinent to the Government needs.
** Insert pertinent standards, i.e., fire and casualty, safety
and fire protection, etc.
The above Technical Industry Standards provision requires offerors
to furnish evidence that the supplies or equipment they intend to
provide meet the technical industry standards required by the
solicitation. It is in VA's best interest, and the clause would be
required, to ensure that the supplies or equipment VA procures meet
certain standards, such as Underwriters Laboratory, to protect the
safety of individuals coming in contact with or using those supplies or
equipment.
Caution to Bidders--Bid Envelopes
9. 852.214-70, Caution to Bidders--Bid Envelopes (APR 1984)
It is the responsibility of each bidder to take all necessary
precautions, including the use of proper mailing
[[Page 44935]]
cover, to insure that the bid price cannot be ascertained by anyone
prior to bid opening. If a bid envelope is furnished with this
invitation, the bidder is requested to use this envelope in submitting
the bid. The bidder may, however, when it suits a purpose, use any
suitable envelope, identified by the invitation number and bid opening
time and date. If a bid envelope is not furnished, the bidder will
complete and affix the enclosed Optional Form 17, Sealed Bid Label, to
the lower left corner of the envelope used in submitting the bid.
(End of provision)
FAR Part 12 and FAR commercial item provisions do not contain any
guidance to bidders regarding protection of their bid prices or on how
to clearly identify their bids. This VAAR provision provides such
guidance and may assist bidders in ensuring that their bid prices are
protected from exposure prior to bid opening and that their bids are
identified and received on time.
Estimated Quantity(ies)
The following clause would be used in estimated quantity contracts,
except contracts for coal, orthopedic, prosthetic and optical supplies,
or in National Cemetery Service contracts for monuments:
10. 852.216-70, Estimated Quantities (APR 1984).
As it is impossible to determine the exact quantities that will be
required during the contract term, each bidder whose bid is accepted
wholly or in part will be required to deliver all articles or services
that may be ordered during the contract term, except as he/she
otherwise indicates in his/her bid and except as otherwise provided
herein. Bids will be considered if made with the proviso that the total
quantities delivered shall not exceed a certain specified quantity.
Bids offering less than 75 percent of the estimated requirement or
which provide that the Government shall guarantee any definite
quantity, will not be considered. The fact that quantities are
estimated shall not relieve the contractor from filling all orders
placed under this contract to the extent of his/her obligation. Also,
the Department of Veterans Affairs shall not be relieved of its
obligation to order from the contractor all articles or services that
may, in the judgment of the ordering officer, be needed except that in
the public exigency procurement may be made without regard to this
contract.
(End of clause)
The following clause would be used in local coal-hauling contracts:
11. 852.216-70, Estimated Quantity (APR 1984).
The estimated requirement shown in this invitation for bids cover
the requirements for the entire contract period. It is understood and
agreed that during the period of this contract the Government may order
and the contractor will haul such coal as may, in the opinion of the
Government, be required, except that in the public exigency procurement
may be made without regard to this contract.
(End of clause)
The following clause would be used for orthopedic, prosthetic, and
optical supplies.
12. 852.216-70, Quantities (APR 1984).
The supplies and/or services listed in the attached schedule will
be furnished at such time and in such quantities as they are required.
(End of clause)
The following clause would be used for National Cemetery Service
contracts for monuments:
13. 852.216-70, Estimated Quantities (JUL 1989).
As it is impossible to determine the exact quantities that will be
required during the contract term, each bidder whose bid is accepted
wholly or in part will be required to deliver all articles that may be
ordered during the contract term, except as he or she otherwise
indicates in his or her bid and except as otherwise provided herein.
Bids will be considered if made with the proviso that the total
quantities delivered shall not exceed a certain specified quantity. The
fact that quantities are estimated shall not relieve the contractor
from filling all orders placed under this contract to the extent of his
or her obligation. Also, the Department of Veterans Affairs shall not
be relieved of its obligation to order from the contractor all articles
that may, in the judgment of the ordering officer, be needed except
that in the public exigency procurement may be made without regard to
this contract.
(End of clause)
The above clauses regarding quantities would be for use in
solicitations where definite quantities cannot be determined. They
would require contractors to provide all quantities ordered under the
contract, even if those quantities exceed the original estimate. These
clauses appear to be necessary to ensure that VA is able to obtain the
quantities that are ultimately needed.
Sales or Use Taxes
14. 852.229-70, Sales or Use Taxes (APR 1984).
The articles listed in this bid invitation will be purchased from
personal funds of patients and prices bid herein include any sales or
use tax heretofore imposed by any State, or by any duly constituted
taxing authority therein, having jurisdiction to levy such a tax,
applicable to the material in this bid.
(End of provision)
15. 852.229-71, Sales or Use Taxes (APR 1984).
Any article purchased from this contract, payable from personal
funds of patients, will be subject to any applicable sales or use tax
levied thereon by any State, or by duly constituted taxing authority
therein having jurisdiction to levy such a tax; the total amount of the
tax applicable to such purchase payable from personal funds of patients
will be computed on the total amount of the order and will be shown as
a separate item on the purchase order and invoice. The bidder shall
identify the applicable taxes and rates in his/her bid.
(End of provision)
Regarding the two above provisions on taxes, VA contracting
officers occasionally issue solicitations for goods or services that
would be purchased from patient funds. Under such circumstances, the
purchase is not exempt from state and local taxes. The standard FAR
clause 52.212-4, paragraph (k), provides that the contract price shall
include all applicable taxes but, if used in a solicitation for
purchase from patient funds, does not advise bidders that the Federal
Government is not the purchaser. Since the Federal Government is exempt
from most taxes, this could result in a bidder failing to include taxes
in such bids. These provisions appear to be necessary for use in
solicitations for commercial items to be purchased from patient funds
to protect the seller from possible losses.
Protest Content
16. 852.233-70, Protest Content (JUN 1987)
(a) Any protest filed by an interested party shall:
(1) Include the name, address, and telephone number of the
protester;
(2) Identify the solicitation and/or contract number;
(3) Include an original signed by the protester or his/her
representative and at least one copy;
(4) Set forth a detailed statement of the legal and factual ground
of the protest including copies of relevant documents;
[[Page 44936]]
(5) Specifically request a ruling of the individual upon whom the
protest is served; and
(6) State the form of relief requested.
(b) Failure to comply with the above may result in dismissal of the
protest without further consideration.
(End of provision)
FAR 12.301(d) does not require contracting officers to include FAR
provision 52.233-2, Service of Protest, in commercial item
solicitations, but FAR 12.301(e) does allow optional use. If FAR
provision 52.233-2 is used by contracting officers, this corresponding
VAAR provision 852.233-70 should also be included in the solicitation.
This provision advises interested parties of the information the FAR,
at 33.103(d)(2), requires interested parties to include in a protest.
This assists bidders/offerors by having the information readily
available in the solicitation, without their having to refer back to
the FAR.
Contractor Responsibilities
17. 852.237-70, Contractor Responsibilities (APR 1984) The
contractor shall obtain all necessary licenses and/or permits required
to perform this work. He/she shall take all reasonable precautions
necessary to protect persons and property from injury or damage during
the performance of this contract. He/she shall be responsible for any
injury to himself/herself, his/her employees, as well as for any damage
to personal or public property that occurs during the performance of
this contract that is caused by his/her employee's fault or negligence,
and shall maintain personal liability and property damage insurance
having coverage for a limit as required by the laws of the State of [
]. Further, it is agreed that any negligence of the Government, its
officers, agents, servants and employees, shall not be the
responsibility of the contractor hereunder with the regard to any
claims, loss, damage, injury, and liability resulting therefrom.
(End of clause)
The above Contractor Responsibilities clause is used in service and
construction contracts. This clause makes it the contractor's
responsibility to obtain all necessary licenses and permits to perform
the work covered by the contract and emphasizes that the contractor is
responsible for safety.
Indemnification and Insurance
18. 852.237-71, Indemnification and Insurance (APR 1984)
(a) Indemnification. The contractor expressly agrees to indemnify
and save harmless the Government, its officers, agents, servants, and
employees from and against any and all claims, loss, damage, injury,
and liability, however caused, resulting from, arising out of, or in
any way connected with the performance of work under this agreement.
Further, it is agreed that any negligence or alleged negligence of the
Government, its officers, agents, servants, and employees, shall not be
a bar to a claim for indemnification unless the act or omission of the
Government, its officers, agents, servants, and employees is the sole,
competent, and producing cause of such claims, loss, damage, injury,
and liability. At the option of the contractor, and subject to the
approval by the contracting officer of the sources, insurance coverage
may be employed as guaranty of indemnification.
(b) Insurance. Satisfactory insurance coverage is a condition
precedent to award of a contract. In general, a successful bidder must
present satisfactory evidence of full compliance with State and local
requirements, or those below stipulated, whichever are the greater.
More specifically, workmen's compensation and employer's liability
coverage will conform to applicable State law requirements for the
service contemplated, whereas general liability and automobile
liability of comprehensive type, shall in the absence of higher
statutory minimums, be required in the amounts per vehicle used of not
less than $200,000 per person and $500,000 per occurrence for bodily
injury and $20,000 per occurrence for property damage. State-approved
sources of insurance coverage ordinarily will be deemed acceptable to
the Department of Veterans Affairs installation, subject to timely
certifications by such sources of the types and limits of the coverages
afforded by the sources to the bidder. (In those instances where
airplane service is to be used, substitute the word ``aircraft'' for
``automobile'' and ``vehicle'' and modify coverage to require aircraft
public and passenger liability insurance of at least $200,000 per
passenger and $500,000 per occurrence for bodily injury, other than
passenger liability, and $200,000 per occurrence for property damage.
Coverage for passenger liability bodily injury shall be at least
$200,000 multiplied by the number of seats or passengers, whichever is
greater.)
(End of clause)
The above Indemnification and Insurance clause would be for use on
vehicle and aircraft service contracts. It is critical that VA
contractors carry appropriate insurance. The insurance protects both VA
and VA beneficiaries using VA services.
Representatives of Contracting Officers
19. 852.270-1, Representatives of Contracting Officers (APR 1984)
The contracting officer reserves the right to designate representatives
to act for him/her in furnishing technical guidance and advice or
generally supervise the work to be performed under this contract. Such
designation will be in writing and will define the scope and limitation
of the designee's authority. A copy of the designation shall be
furnished the contractor.
(End of provision)
The above Representatives of Contracting Officers provision would
be used whenever it may be necessary to designate another individual to
act as the contracting officer's technical representative.
Quantities
20. 852.270-2, Quantities (APR 1984).
The bidder agrees to furnish up to 25 percent more or 25 percent
less than the quantities awarded when ordered by the Department of
Veterans Affairs.
(End of clause)
The above Quantities clause is similar to the clauses under
852.216-70 and would be used in bread and bakery products
solicitations. It requires contractors to provide up to 25 percent
more, or allows VA to order up to 25 percent less, than the estimated
quantities shown in the solicitation. It is proposed for use in
commercial item contracts for bread and bakery products to allow VA
leeway in ordering such products, where exact usage is difficult to
predict.
Shellfish
21. 852.270-3, Shellfish (APR 1984).
The bidder certifies that oysters, clams, and mussels will be
furnished only from plants approved by and operated under the
supervision of shellfish authorities of States whose certifications are
endorsed currently by the U.S. Public Health Service, and the names and
certificate numbers of those shellfish dealers must appear on current
lists published by the U.S. Public Health Service. These items shall be
packed and delivered in approved containers, sealed in such manner that
tampering is easily discernible, and marked with packer's certificate
number impressed or embossed on the side of such containers and
preceded by the State abbreviation. Containers shall be tagged or
labeled to show the name and address of the
[[Page 44937]]
approved producer or shipper, the name of the State of origin, and the
certificate number of the approved producer or shipper.
(End of clause)
The above Shellfish clause specifies minimum standards that
contractors must meet when furnishing shellfish to VA. There are no
similar provisions in the FAR and the clause is proposed for use in
commercial item solicitations for shellfish to ensure that such items
meet minimum Federal standards.
Service Data Manual
The following Service Data Manual clause may be used, in accordance
with the prescriptions contained in the VAAR, in requests for
quotations, solicitations, or contracts for the acquisition of
commercial items of technical medical equipment and devices, provided
the contracting officer determines that use of the clause is consistent
with customary commercial practice. Such use is permitted by FAR
12.301(a)(2).
22. 852.210-70, Service Data Manual (NOV 1984).
(a) The successful bidder will supply operation/service
(maintenance) manuals with each piece of equipment in the quantity
specified in the solicitation and resulting purchase order. As a
minimum, the manual(s) shall be bound and equivalent to the manual(s)
provided the manufacturer's designated field service representative as
well as comply with all the requirements in paragraphs (b) through (i)
of this clause. Sections, headings and section sequence identified in
(b) through (i) of this clause are typical and may vary between
manufacturers. Variances in the sections, headings and section
sequence, however, do not relieve the manufacturer of his/her
responsibility in supplying the technical data called for therein.
(b) Title Page and Front Matter--The title page shall include the
equipment nomenclature, model number, effective date of the manual and
the manufacturer's name and address. If the manual applies to a
particular version of the equipment only, the title page shall also
list that equipment's serial number. Front matter shall consist of the
Table of Contents, List of Tables, List of Illustrations and a
frontispiece (photograph or line drawing) depicting the equipment.
(c) Section I, General Description--This section shall provide a
generalized description of the equipment or devices and shall describe
its purpose or intended use. Included in this section will be a table
listing all pertinent equipment specifications, power requirements,
environmental limitations and physical dimensions.
(d) Section II, Installation--Section II shall provide pertinent
installation information. It shall list all input and output connectors
using applicable reference designators and functional names as they
appear on the equipment. Included in this listing will be a brief
description of the function of each connector along with the connector
type. Instructions shall be provided as to the recommended method of
repacking the equipment for shipment (packing material, labeling, etc.)
(e) Section III, Operation--Section III will fully describe the
operation of the equipment and shall include a listing of each control
with a brief description of its function and step-by-step procedures
for each operating mode. Procedures will use the control(s)
nomenclature as it appears on the equipment and will be keyed to one or
more illustrations of the equipment. Operating procedures will include
any preoperational checks, calibration adjustments and operation tests.
Notes, cautions and warnings shall be set off from the text body so
they may easily be recognizable and will draw the attention of the
reader. Illustrations should be used wherever possible depicting
equipment connections for test, calibration, patient monitoring and
measurements. For large, complex and/or highly versatile equipment
capable of many operating modes and in other instances where the
Operation Section is quite large, operational information may be bound
separately in the form of an Operators Manual. The providing of a
separate Operators manual does not relieve the supplier of his
responsibility for providing the minimum acceptable maintenance data
specified herein.
Where applicable, flow charts and narrative descriptions of
software shall be provided. If programming is either built-in and/or
user modifiable, a complete software listing shall be supplied.
Equipment items with software packages shall also include diagnostic
routines and sample outputs. Submission information shall be given in
the Maintenance Section to identify equipment malfunctions which are
software related.
(f) Section IV, Principles of Operation--This section shall
describe in narrative form the principles of operation of the
equipment. Circuitry shall be discussed in sufficient detail to be
understood by technicians and engineers who possess a working knowledge
of electronics and a general familiarity with the overall application
of the devices. The circuit descriptions should start at the overall
equipment level and proceed to more detailed circuit descriptions. The
overall description shall be keyed to a functional block diagram of the
equipment. Circuit descriptions shall be keyed to schematic diagrams
discussed in paragraph (i) below. It is recommended that for complex or
special circuits, simplified schematics should be included in this
section.
(g) Section V, Maintenance--The maintenance section shall contain a
list of recommended test equipment, special tools, preventive
maintenance instructions and corrective information. The list of test
equipment shall be that recommended by the manufacturer and shall be
designated by manufacturer and model number. Special tools are those
items not commercially available or those that are designed
specifically for the equipment being supplied. Sufficient data will be
provided to enable their purchase by the Department of Veterans
Affairs. Preventive maintenance instructions shall consist of those
recommended by the manufacturer to preclude unnecessary failures.
Procedures and the recommended frequency of performance shall be
included for visual inspection, cleaning, lubricating, mechanical
adjustments and circuit calibration. Corrective maintenance shall
consist of the data necessary to troubleshoot and rectify a problem and
shall include procedures for realigning and testing the equipment.
Troubleshooting shall include either a list of test points with the
applicable voltage levels or waveforms that would be present under a
certain prescribed set of conditions, a troubleshooting chart listing
the symptom, probable cause and remedy, or a narrative containing
sufficient data to enable a test technician or electronics engineer to
determine and locate the probable cause of malfunction. Data shall also
be provided describing the preferred method of repairing or replacing
discrete components mounted on printed circuit boards or located in
areas where special steps must be followed to disassemble the
equipment. Procedures shall be included to realign and test the
equipment at the completion of repairs and to restore it to its
original operating condition. These procedures shall be supported by
the necessary waveforms and voltage levels, and data for selecting
matched components. Diagrams, either photographic or line, shall show
the location of printed circuit board mounted components.
(h) Section VI, Replacement Parts List--The replacement parts list
shall list, in alphanumeric order, all electrical/electronic,
mechanical and
[[Page 44938]]
pneumatic components, their description, value and tolerance, true
manufacturer and manufacturers' part number.
(i) Section VII, Drawings--Wiring and schematic diagrams shall be
included. The drawings will depict the circuitry using standard symbols
and shall include the reference designations and component values or
type designators. Drawings shall be clear and legible and shall not be
engineering or production sketches.
(End of clause)
The following Service Data Manual clause may be used, in accordance
with the prescriptions contained in the VAAR, in requests for
quotations, solicitations, or contracts for the acquisition of
commercial items of mechanical equipment (other than technical medical
equipment and devices), provided the contracting officer determines
that use of the clause is consistent with customary commercial
practice. Such use is permitted by FAR 12.301(a)(2).
23. 852.210-70, Service Data Manual (NOV 1984).
The contractor agrees to furnish two copies of a manual, handbook
or brochure containing operating, installation, and maintenance
instructions (including pictures or illustrations, schematics, and
complete repair/test guides as necessary). Where applicable, it will
include electrical data and connection diagrams for all utilities. The
instructions shall also contain a complete list of all replaceable
parts showing part number, name, and quantity required.
(End of clause)
When the bid or proposal will result in the initial purchase
(including each make and model) of a centrally procured item, the
following clause would be used:
24. 852.210-70, Service Data Manual (NOV 1984).
The contractor agrees, when requested by the contracting officer,
to furnish not more than three copies of the technical documentation
required by paragraph 852.210-70(a) to the Service and Reclamation
Division, VA Supply Depot, Hines, Ill. In addition, the contractor
agrees to furnish two additional copies of the technical documentation
required by 852.210-70(a) with each piece of equipment sold as a result
of the invitation for bid or request for proposal.
(End of clause)
The above clauses concerning service data manuals would be required
in support of VA's equipment acquisitions and equipment repair program.
End-use operators of equipment need operator's manuals to ensure that
the equipment is operated properly and safely and that the equipment is
properly cleaned. VA biomedical engineers repair many of the items of
equipment at VA medical centers and must have the vendor's repair
manuals to accomplish those repairs.
Brand Name or Equal
25. 852.210-77, Brand Name or Equal (NOV 1984).
(Note: as used in this clause, the term brand name includes
identification of products by make and model.)
(a) If items called for by this invitation for bids have been
identified in the schedule by a ``brand name or equal'' description,
such identification is intended to be descriptive, but not restrictive,
and is to indicate the quality and characteristics of products that
will be satisfactory. Bids offering ``equal'' products (including
products of the brand name manufacturer other than the one described by
brand name) will be considered for award if such products are clearly
identified in the bids and are determined by the Government to meet
fully the salient characteristics requirements listed in the
invitation.
(b) Unless the bidder clearly indicates in his bid that he is
offering an ``equal'' product, his bid shall be considered as offering
a brand name product referenced in the invitation for bids.
(c) (1) If the bidder proposes to furnish an ``equal'' product, the
brand name, if any, of the product to be furnished shall be inserted in
the space provided in the Invitation or Bids, or such product shall be
otherwise clearly identified in the bid. The evaluation of bids and the
determination as to equality or the product offered shall be the
responsibility of the Government and will be based on information
furnished by the bidder or identified in his/her bid as well as other
information reasonably available to the purchasing activity.
Caution To Bidders. The purchasing activity is not responsible for
locating or securing any information which is not identified in the bid
and reasonably available to the purchasing activity. Accordingly, to
insure that sufficient information is available, the bidder must
furnish as a part of his/her bid all descriptive material (such as
cuts, illustrations, drawings or other information) necessary for the
purchasing activity to: (i) Determine whether the product offered meets
the salient characteristics requirement of the Invitation for Bids, and
(ii) Establish exactly what the bidder proposes to furnish and what the
Government would be binding itself to purchase by making an award. The
information furnished may include specific references to information
previously furnished or to information otherwise available to the
purchasing activity.
(2) If the bidder proposes to modify a product so as to make it
conform to the requirements of the Invitation for Bids, he/she shall:
(i) Include in his/her bid a clear description of such proposed
modifications, and
(ii) Clearly mark any descriptive material to show the proposed
modifications.
(3) Modifications proposed after bid opening to make a product
conform to a brand name product referenced in the Invitation for Bids
will not be considered.
(End of clause)
Although the FAR expresses a preference for use of performance
specifications on Federal Government solicitations, the use of ``brand
name or equal'' purchase descriptions is often necessary to simplify
and expedite the acquisition process. The General Services
Administration uses a similar clause and the Civilian Agency
Acquisition Council is considering reinstating ``brand name or equal''
provisions in the FAR. Use of ``brand name or equal'' purchase
descriptions is a commercial practice in many industries. If use of a
``brand name or equal'' purchase description is found by the
contracting officer to be a commercial practice for a specific
solicitation, a standard clause should be used to advise bidders/
offerors that such descriptions are not intended to restrict the
acquisition to brand name items. A standard clause would ensure
uniformity and reduce the administrative costs of solicitation
preparation.
Nondiscrimination in Services Provided Beneficiaries
The following clause would be used in all VA requests for
quotations, solicitations and contracts for providing services to
eligible beneficiaries:
26. 852.271-70, Nondiscrimination in Services Provided
Beneficiaries (APR 1984)
The contractor agrees to provide all services specified in this
contract for any person determined eligible by the Under Secretary for
Health, or designee, regardless of the race, color, religion, sex, or
national origin of the person for whom such services are ordered. The
contractor further warrants that he/she will not resort to
subcontracting as a means of circumventing this provision.
[[Page 44939]]
(End of clause)
The above nondiscrimination clause is proposed for use in
commercial item contracts providing services to eligible beneficiaries
to ensure that vendors do not discriminate against VA beneficiaries
based on a veteran's race, color, religion, sex, or national origin.
Miscellaneous
This document proposes to add paragraph 812.301(f) to clarify that
VAAR clauses are not required for use in micro-purchases, but may be
used in micro-purchases at the option of the contracting officer when
use is determined by the contracting officer to be in the Government's
best interest.
This document proposes to add paragraph 812.302, in accordance with
FAR 12.302(c), to provide agency procedures for approval of waivers.
Waivers are required if contracting officers wish to tailor clauses or
otherwise include additional terms and conditions in a solicitation or
contract for commercial items in a manner that is inconsistent with
customary commercial practice for the item being acquired. The criteria
that must be used by the next higher level supervisor in approving the
waiver is set forth at FAR 12.302(c), which provides that the waiver
describe the customary commercial practice found in the marketplace,
support the need to include a term or condition that is inconsistent
with that practice, and include a determination that use of the
customary commercial practice is inconsistent with the needs of the
Government.
Regulatory Flexibility Act
The Secretary hereby certifies that 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 (RFA), 5
U.S.C. 601-612. The adoption of this proposed rule would not cause a
significant effect on any entities. Costs to comply with any of the
provisions of the proposed rule will be minimal. Therefore, pursuant to
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.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520),
collections of information are contained in a number of the clauses and
provisions set forth in the Supplementary Information portion of this
proposed rule. Although this document proposes to add provisions and
clauses for commercial item solicitations and contracts, this Paperwork
Reduction Act notice of this document seeks approval for collections of
information for both commercial and non-commercial item, service, and
construction solicitations and contracts. The provisions and clauses
are used in both commercial and non-commercial item, service, and
construction solicitations and contracts. As required under section
3507(d) of the Act, VA has submitted a copy of this proposed rulemaking
action to the Office of Management and Budget (OMB) for its review of
the collection of information.
OMB assigns control numbers to collections of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number.
Comments on the collection of information 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 to the Director, Office of
Regulations Management (02D), Department of Veterans Affairs, 810
Vermont Avenue, NW, Washington, DC 20420. Comments should indicate that
they are submitted in response to ``RIN 2900-AI05.''
Title: Commercial and Non-Commercial Items, Services and
Construction.
Title and Provision/Clause Number: 852.219-70, Veteran-Owned Small
Business.
Summary of collection of information: VAAR Provision 852.219-70,
Veteran-Owned Small Business, requests that a firm submitting a
quotation, bid, or offer furnish information regarding whether or not
the firm is a small business owned by a veteran, a Vietnam era veteran,
or a disabled veteran. The information required by this VAAR provision
will be used by VA to identify veteran-owned businesses to ensure
eligible veteran-owned firms are given an opportunity to participate in
VA solicitations for goods and services. Without this information,
there would be no way to properly monitor this program or conduct VA
outreach efforts.
Description of need for information and proposed use of
information: Public Law 93-237 amended the Small Business Act by
directing the U.S. Small Business Administration (SBA) to give
``special consideration'' to veterans of the U.S. Armed Forces in all
SBA programs. In September 1983, VA adopted the ``special
consideration'' philosophy and directed all VA contracting activities
to take affirmative action to solicit and assist Vietnam era and
disabled veteran-owned small businesses to participate in the VA
acquisition process. On April 5, 1990, the Secretary approved an
initiative to expand the Vietnam era and disabled veteran-owned small
business program to include all veteran-owned small businesses. Title
38 United States Code vests the Secretary with broad authority to
assist veterans. The information collected is a self-certification that
a firm is veteran-owned. It allows VA to ensure that eligible veteran-
owned firms are given an opportunity to participate in VA acquisitions
and to monitor our success in implementing these regulatory provisions.
The information requested will be solicited from respondents on a
voluntary basis.
Description of likely respondents: All firms submitting written or
electronic quotations, bids, or offers to VA.
Estimated number of respondents: 3,403,500 written quotations,
bids, or offers.
Estimated frequency of responses: One response for each written
quotation, bid, or offer submitted.
Estimated average burden per collection: 15 seconds.
Estimated total annual reporting and recordkeeping burden: 14,181
hours.
Title and Provision/Clause Number: Provision 852.210-74, Special
Notice.
Summary of collection of information: This provision is used only
in VA's telephone system acquisition solicitations and requires the
contractor, after award of the contract, to submit descriptive
literature on the equipment the contractor intends to furnish to show
how that equipment meets the specification requirements of the
solicitation.
Description of need for information and proposed use of
information: The information is needed to ensure that the equipment
proposed by the contractor meets the specification requirements.
Failure to require the information could result in the installation of
equipment that does not meet contract requirements, with significant
loss to the contractor if the contractor subsequently had to remove the
equipment and furnish equipment that did meet the specification
requirements.
Description of likely respondents: Firms awarded VA contracts for
telephone systems.
Estimated number of respondents: 30 per year.
Estimated frequency of responses: Once for each contract awarded.
Estimated average burden per collection: 5 hours.
[[Page 44940]]
Estimated total annual reporting and recordkeeping burden: 150
hours.
Title and Provision/Clause Number: Provision 852.210-75, Technical
Industry Standards.
Summary of collection of information: This provision requires that
items offered for sale to VA under the solicitation conform to certain
technical industry standards, such as Underwriters Laboratory (UL) or
the National Fire Protection Association, and that the contractor
furnish evidence to VA that the items meet that requirement. The
evidence is normally in the form of a tag or seal affixed to the item,
such as the UL tag on an electrical cord or a tag on a fire-rated door.
This requires no additional effort on the part of the contractor, as
the items come from the factory with the tags already in place, as part
of the manufacturer's standard manufacturing operation. Occasionally,
for items not already meeting standards or for items not previously
tested, a contractor will have to furnish a certificate from an
acceptable laboratory certifying that the items furnished have been
tested in accordance with, and conform to, the specified standards.
Only those firms required to submit a separate certificate are noted
below.
Description of need for information and proposed use of
information: To ensure that the items being furnished meet minimum
safety standards and to protect VA employees, VA beneficiaries, and the
public.
Description of likely respondents: Firms whose products have not
previously been tested to ensure the products meet the industry
standards required under the solicitation.
Estimated number of respondents: 100.
Estimated frequency of responses: Once for each contract awarded.
Estimated average burden per collection: 30 minutes.
Estimated total annual reporting and recordkeeping burden: 50
hours.
Title and Provision/Clause Number: Provision 852.214-70, Caution to
Bidders--Bid Envelopes.
Summary of collection of information: This provision advises
bidders/offerors that it is their responsibility to insure that their
bid price cannot be ascertained by anyone prior to bid opening. It also
advises bidders/offerors to identify their bids by showing the
invitation number and bid opening date on the outside of the bid
envelope. A bid envelope or a label is often furnished by the
Government for use by bidders/offers to identify their bids.
Description of need for information and proposed use of
information: The information is needed by the Government to identify
which parcels of mail are bids/offers and which are other routine mail
without having to open the envelopes to identify their intent and
possibly exposing bid/offer prices before bid opening. The information
will be used to identify which parcels of mail are bids and which are
other routine mail. The information is also needed to help ensure that
bids/offers are delivered to the proper bid opening room on time and
prior to bid opening.
Description of likely respondents: All firms submitted sealed bids.
Estimated number of respondents: 346,000.
Estimated frequency of responses: Once for each sealed bid/offer
submitted.
Estimated average burden per collection: 10 seconds.
Estimated total annual reporting and recordkeeping burden: 960
hours.
Title and Provision/Clause Number: Clause 852.237-71,
Indemnification and Insurance.
Summary of collection of information: This clause is used in
solicitations for vehicle or aircraft services. It requires the
apparent successful bidder/offeror, prior to contract award, to furnish
evidence that the firm possesses the types and amounts of insurance
required by the solicitation. This evidence is in the form of a
certificate from the firm's insurance company.
Description of need for information and proposed use of
information: The information is required to protect VA by ensuring that
the firm to which award will be made possesses 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 and ensures
that VA beneficiaries and the public are protected by adequate
insurance coverage.
Description of likely respondents: Apparent successful bidders/
offerors on solicitations for vehicle or aircraft services.
Estimated number of respondents: 500.
Estimated frequency of responses: Once for each contract awarded.
Estimated average burden per collection: 30 minutes.
Estimated total annual reporting and recordkeeping burden: 250
hours.
Title and Provision/Clause Number: Provision 852.270-3, Shellfish.
Summary of collection of information: This provision requires that
a firm furnishing shellfish to VA must ensure that the shellfish is
packaged in a container that is marked with the packer's State
certificate number and State abbreviation. In addition, the firm must
ensure that the container is tagged or labeled to show the name and
address of the approved producer or shipper, the name of the State of
origin, and the certificate number of the approved producer or shipper.
This information normally accompanies the shellfish from the packer and
is not information that must be separately obtained by the seller.
Description of need for information and proposed use of
information: The information is needed to ensure that shellfish
purchased by VA comes from a State- and Federal-approved and inspected
source. The information is used to help ensure that VA purchases
healthful shellfish.
Description of likely respondents: Any firm selling shellfish to
VA.
Estimated number of respondents: 1,000.
Estimated frequency of responses: Once for each shipment of
shellfish.
Estimated average burden per collection: 1 minute.
Estimated total annual reporting and recordkeeping burden: 17
hours.
Title and Provision/Clause Number: Clause 852.210-70, Service Data
Manual.
Summary of collection of information: When VA purchases technical
medical equipment and devices, or mechanical equipment, VA also
requires the contractor to furnish both operators manuals and
maintenance/repair manuals. This clause sets forth those requirements
and sets forth the minimum standards those manuals must meet to be
acceptable. Generally, this is the same operator's manual furnished
with each piece of equipment sold to the general public and the same
repair manual used by company technicians in repairing the company's
equipment. The cost of the manuals is included in the contract price or
listed as a separately priced line item on the purchase order.
Description of need for information and proposed use of
information: The operator's manual will be used by the individual
actually operating the equipment to ensure proper operation and
cleaning. The repair manual will be used by VA equipment repair staff
to repair the equipment.
Description of likely respondents: Firms selling technical medical
equipment or devices or mechanical equipment to VA.
Estimated number of respondents: 15,000.
Estimated frequency of responses: Once for each contract awarded.
Estimated average burden per collection: 10 minutes.
[[Page 44941]]
Estimated total annual reporting and recordkeeping burden: 2,500
hours.
Title and Provision/Clause Number: 852.210-77, Brand Name or Equal.
Summary of collection of information: This clause advises bidders
or offerors who are proposing to offer an item that is alleged to be
equal to the brand name item stated in the bid, that it is the bidder's
or offeror's responsibility to show that the item offered is in fact,
equal to the brand name item. This evidence may be in the form of
descriptive literature or material, such as cuts, illustrations,
drawings, or other information. While submission of the information is
voluntary, failure to provide the information may result in rejection
of the firm's bid or offer if the Government cannot otherwise determine
that the item offered is equal.
Description of need for information and proposed use of
information: The information will be used by the contracting officer to
evaluate whether or not the item offered meets the specification
requirements.
Description of likely respondents: Any firm offering an ``equal''
item on a solicitation requesting bids or offers on a ``brand name or
equal'' basis.
Estimated number of respondents: 10,000.
Estimated frequency of responses: Once for each solicitation on
which the firm is proposed an ``equal'' item.
Estimated average burden per collection: 5 minutes.
Estimated total annual reporting and recordkeeping burden: 833
hours.
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.
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.
List of Subjects
48 CFR Parts 810, 811, and 812
Government procurement.
48 CFR Parts 836 and 852
Government procurement, Reporting and recordkeeping requirements.
48 CFR Part 870
Asbestos, Frozen foods, Government procurement, Telecommunications.
Approved: August 8, 1997.
Hershel W. Gober,
Secretary-Designate of Veterans Affairs.
For the reasons set forth in the preamble, and consistent with the
authority in 38 U.S.C. 501 and 40 U.S.C. 486(c), 48 CFR Chapter 8 is
proposed to be amended as follows:
PART 801--VETERANS AFFAIRS ACQUISITION REGULATIONS SYSTEM
1. The authority citation for parts 812, 836, and 852 continues to
read as follows:
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
PART 810--[REMOVED]
2. Part 810 is removed.
3. Part 811 is added to read as follows:
PART 811--DESCRIBING AGENCY NEEDS
Sec.
811.001 Definitions.
Subpart 811.1--Selecting and Developing Requirements Documents
811.104 Items particular to one manufacturer.
811.104-70 Purchase descriptions.
811.104-71 Bid evaluation and award.
811.104-72 Procedure for negotiated procurements.
Subpart 811.2--Using and Maintaining Requirements Documents
811.202 Maintenance of standardization documents.
811.204 Solicitation provisions and contract clauses.
Subpart 811.4--Delivery or Performance Schedules
811.404 Contract clauses.
Subpart 811.5--Liquidated Damages
811.502 Policy.
811.504 Contract clauses.
Subpart 811.6--Priorities and Allocations
811.602 General.
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
811.001 Definitions.
(a) Brand name product means a commercial product described by
brand name and make or model number or other appropriate nomenclature
by which such product is offered for sale to the public by the
particular manufacturer, producer or distributor.
(b) Salient characteristics are those particular characteristics
that specifically describe the essential physical and functional
features of the material or service required. They are those essential
physical or functional features which are identified in the
specifications as a mandatory requirement which a proposed ``equal''
product or material must possess in order for the bid to be considered
responsive. Bidders must furnish all descriptive literature and bid
samples required by the solicitation to establish such ``equality''.
Subpart 811.1--Selecting and Developing Requirements Documents
811.104 Items particular to one manufacturer.
(a) Specifications shall be written in accordance with FAR 11.002
unless otherwise justified by the specification writer and approved by
the contracting officer as described in paragraph (b) of this section.
The contract file shall be documented accordingly.
(b) When it is determined that a particular physical or functional
characteristic of only one product will meet the minimum requirements
of the Department of Veterans Affairs (see FAR 11.104) or that a
``brand name or equal'' purchase description will be used, the
specification writer, whether agency personnel, architect-engineer, or
consultant with which the Department of Veterans Affairs has
contracted, shall separately identify the item(s) to the contracting
officer and provide a full written justification of the reason the
particular characteristic is essential to the Government's requirements
or why the ``brand name or equal'' purchase description is necessary.
The contracting officer shall make the final determination whether
restrictive specifications or ``brand name or equal'' purchase
descriptions will be included in the solicitation.
(c) Purchase descriptions that contain references to one or more
brand name products may be used only in accordance with 811.104-70,
811.104-71, and 811.104-72. In addition,
[[Page 44942]]
purchase descriptions that contain references to one or more brand name
products shall be followed by the words ``or equal,'' except when the
acquisition is fully justified under FAR 6.3 and (VAAR) 48 CFR 806.3.
Acceptable brand name products should be listed in the solicitation.
Where a ``brand name or equal'' purchase description is used,
prospective contractors must be given the opportunity to offer products
other than those specifically referenced by brand name if such other
products are determined by the Government to fully meet the salient
characteristics listed in the invitation. The contract file will be
documented in accordance with paragraph (b) of this section, justifying
the need for use of a brand name or equal description.
(d) ``Brand name or equal'' purchase descriptions shall set forth
those salient physical, functional, or other characteristics of the
referenced products which are essential to the minimum needs of the
Government. For example, when interchangeability of parts is required,
such requirement should be specified. Purchase descriptions shall
contain the following information to the extent available and include
such other information as is necessary to describe the item required:
(1) Complete common generic identification of the item required;
(2) Applicable model, make or catalog number for each brand name
product referenced, and identity of the commercial catalog in which it
appears; and
(3) Name of manufacturer, producer or distributor of each brand
name product referenced (and address if not well known).
(e) When necessary to describe adequately the item required, an
applicable commercial catalog description or pertinent extract may be
used if such description is identified in the solicitation as being
that of the particular named manufacturer, producer or distributor. The
contracting officer will insure that a copy of any catalogs referenced
(except parts catalogs) is available on request for review by bidders
at the purchasing office.
(f) Except as noted in paragraph (d) of this section, purchase
descriptions shall not include either minimum or maximum restrictive
dimensions, weights, materials or other salient characteristics which
are unique to a brand name product or which would tend to eliminate
competition or other products which are only marginally outside the
restrictions. However, purchase description may include restrictive
dimensions, weights, materials or other salient characteristic if such
restrictions are determined in writing by the user to be essential to
the Government's requirements, the brand name of the product is
included in the purchase description, and all other determinations
required by 811.104 are made.
811.104-70 Purchase descriptions.
(a) When any purchase description, including a ``brand name or
equal'' purchase description, is used in a solicitation for a supply
contract to describe required items of mechanical equipment, the
solicitation will include the clauses in 852.211-70 (Service Data
Manual) and in 852.211-71 (Guarantee).
(b) Solicitations using ``brand name or equal'' purchase
descriptions will contain the ``brand name or equal'' clause in
852.211-77, and the provision set forth at FAR 52.214-21, Descriptive
Literature. Contracting officers are cautioned to review the
requirements at FAR 14.202-5(d) when utilizing the descriptive
literature provision.
(c) Except as provided in 811.104-70(d), when a ``brand name or
equal'' purchase description is included in an invitation for bids, the
following shall be inserted after each item so described in the
solicitation, for completion by the bidder:
Bidding on:
Manufacturer name------------------------------------------------------
Brand------------------------------------------------------------------
No.--------------------------------------------------------------------
(d) (1) When component parts of an end item are described in the
solicitation by a ``brand name or equal'' purchase description and the
contracting officer determines that the clause in 811.104-70(b) is
inapplicable to such component parts, the requirements of 811.104-70(c)
shall not apply with respect to such component parts. In such cases, if
the clause is included in the solicitation for other reasons, a
statement substantially as follows also shall be included:
The clause entitled ``Brand Name or Equal'' does not apply to
the following component parts (list the component parts to which the
clause does not apply): and
(2) In the alternative, if the contracting officer determines that
the clause in 811.104-70(b) shall apply to only certain such component
parts, the requirements of 811.104-70(c) shall apply to such component
parts and a statement substantially as follows also shall be included:
The clause entitled ``Brand Name or Equal'' applies to the
following component parts (list the component parts to which the
clause applies):
(e) When a solicitation contains ``brand name or equal'' purchase
descriptions, bidders who offer brand name products, including
component parts, referenced in such descriptions shall not be required
to furnish bid samples of the referenced brand name products. However,
solicitations may require the submission of bid samples in the case of
bidders offering ``or equal'' products. If bid samples are required,
the solicitation shall include the provision set forth at FAR 52.214-
20, Bid Samples. The bidder must still furnish all descriptive
literature in accordance with and for the purpose set forth in the
``Brand Name or Equal'' clause, 852.211-77(c)(1) and (2), even though
bid samples may not be required.
811.104-71 Bid evaluation and award.
(a) Bids offering products that differ from brand name products
referenced in a ``brand name or equal'' purchase description shall be
considered for award when the contracting officer determines in
accordance with the terms of the clause at 852.211-77 that the offered
products are clearly identified in the bids and are equal in all
material respects to the products specified.
(b) Award documents shall identify, or incorporate by reference, an
identification of the specific products which the contractor is to
furnish. Such identification shall include any brand name and make or
model number, descriptive material, and any modifications of brand name
products specified in the bid. Included in this requirement are those
instances when the descriptions of the end items contain ``brand name
or equal'' purchase descriptions of component parts or of accessories
related to the end item, and the clause at 852.211-77 was applicable to
such component parts or accessories (see 811.104-70(d)(2)).
811.104-72 Procedure for negotiated procurements.
(a) The policies and procedures prescribed in 811.104-70 and
811.104-71 should be used as a guide in developing adequate purchase
descriptions for negotiated procurements.
(b) The clause at 852.211-77 may be adapted for use in negotiated
procurements. If use of the clause is not practicable (as may be the
case in unusual and compelling urgency purchases), suppliers shall be
suitably informed that proposals offering products different from the
products referenced by brand name will be considered if the contracting
officer
[[Page 44943]]
determines that such offered products are equal in all material
respects to the products referenced.
Subpart 811.2--Using and Maintaining Requirements Documents
811.202 Maintenance of standardization documents.
(a) Military and departmental specifications. Contracting officers
may, when they deem it to be advantageous to the Department of Veterans
Affairs, utilize these specifications when procuring supplies and
equipment costing less than the simplified acquisition threshold.
However, when purchasing items of perishable subsistence, contracting
officers shall observe only those exemptions set forth in paragraphs
(b)(3) and (b)(4) of this section.
(b) Nutrition and food service specifications. (1) The Department
of Veterans Affairs has adopted for use in the procurement of
packinghouse products, the purchase descriptions and specifications set
forth in the Institutional Meat Purchase Specifications (IMPS), and the
IMPS General Requirements, which have been developed by the U.S.
Department of Agriculture. Purchase descriptions and specifications for
dairy products, poultry, eggs, fresh and frozen fruits and vegetables,
as well as certain packinghouse products selected from the IMPS
especially for Department of Veterans Affairs use, are contained in the
Federal Hospital Subsistence Guide. A copy of this guide and the IMPS
may be obtained from any Department of Veterans Affairs contracting
officer.
(2) Contract terms and conditions governing the procurement of
subsistence items are listed in the Federal Hospital Subsistence Guide
and IMPS. These provisions shall be made a part of each solicitation
for such items when applicable.
(3) The military specifications for meat and meat products
contained in the Federal Hospital Subsistence Guide shall be used by
the Department of Veterans Affairs only when purchasing such items of
subsistence from the Defense Logistics Agency (DLA). Military
specifications for poultry, eggs, and egg products contained in the
Federal Hospital Subsistence Guide may be used when purchasing either
from DLA or from local dealers.
(4) Except as authorized in part 846 of this chapter, contracting
officers shall not deviate from the specifications contained in the
Federal Hospital Subsistence Guide and the IMPS without prior approval
of the Deputy Assistant Secretary for Acquisition and Materiel
Management.
(5) Items of meat, cured pork and poultry not listed in either the
Federal Hospital Subsistence Guide or the IMPS, will not be purchased
without prior approval of the Deputy Assistant Secretary for
Acquisition and Materiel Management.
(c) Department of Veterans Affairs specifications. (1) The
Director, Publications Service, is responsible for developing,
publishing, and distributing Department of Veterans Affairs
specifications covering printing and binding.
(2) Department of Veterans Affairs specifications, as they are
revised, are placed in stock in the VA Forms and Publications Depot.
Facility requirements for these specifications will be requisitioned
from that source.
(d) Government paper specification standards. (1) Invitations for
bids, requests for proposals, purchase orders, or other procurement
instruments covering the purchase of paper stocks to be used in
duplicating or printing, or which specify the paper stocks to be used
in buying printing, binding, or duplicating, will require that such
paper stocks be in accordance with the Government Paper Specification
Standards issued by the Joint Committee on Printing of Congress.
(2) All binding or rebinding of books, magazines, pamphlets,
newspapers, slip cases and boxes will be procured in accordance with
Government Printing Office (GPO) specifications and will be procured
from the servicing GPO Regional Printing Procurement Office or, when
appropriate, from commercial sources.
(3) There are three types of binding/rebinding:
(i) Class A (hard cover);
(ii) Perfect (glued); and
(iii) Lumbinding (sewn). The most suitable type of binding will be
procured to satisfy the requirements, based upon the intended use of
the bound material.
811.204 Solicitation provisions and contract clauses.
Specifications. When product specifications are cited in an
invitation for bids or requests for proposals, the citation shall
include desired options and shall conform to the following:
Shall be type__________, grade __________, in accordance with
(type of specification) No. __________, dated __________ and
amendment __________ dated __________ except paragraphs __________
and __________ which are amended as follows:
Subpart 811.4--Delivery or Performance Schedules
811.404 Contract clauses.
When delivery is required by or on a particular date, the time of
delivery clause set forth in FAR 52.211-8 as it relates to f.o.b.
destination contracts will state that the delivery date specified is
the date by which the shipment is to be delivered, not the shipping
date. In f.o.b. origin contracts, the clause will state that the date
specified is the date shipment is to be accepted by the carrier.
Subpart 811.5--Liquidated Damages
811.502 Policy.
Liquidated damages provisions will not be routinely included in
supply or construction contracts, regardless of dollar amount. The
decision to include liquidated damages provisions will conform to the
criteria in FAR 11.502. In making this decision, consideration will be
given to whether the necessity for timely delivery or performance as
required in the contract schedule is so critical that a probable
increase in contract price is justified. Liquidated damages provisions
will not be included as insurance against selection of a non-
responsible bidder, as a substitute for efficient contract
administration, or as a penalty for failure to perform on time.
811.504 Contract clauses.
When the liquidated damages clause prescribed in FAR 52.211-11 or
52.211-12 is to be used and where partial performance may be utilized
to the advantage of the Government, the clause in 852.211-78 will be
included in the contract.
Subpart 811.6--Priorities and Allocations
811.602 General.
(a) Priorities and allocations of critical materials are controlled
by the Department of Commerce. Essentially, such priorities and
allocations are restricted to projects having a direct connection with
supporting current defense needs. The Department of Veterans Affairs is
not authorized to assign a priority rating to its purchase orders or
contracts involving the acquisition or use of critical materials.
(b) In those instances where it has been technically established
that it is not feasible to use a substitute material, the Department of
Commerce has agreed to assist us in obtaining critical materials for
maintenance and repair projects. They will also, where possible, render
assistance in connection with the purchase of new items, which may be
in
[[Page 44944]]
short supply because of their use in connection with the defense
effort.
(c) Contracting officers having problems in acquiring critical
materials will ascertain all the facts necessary to enable the
Department of Commerce to render assistance to the Department of
Veterans Affairs in acquiring these materials. The contracting officer
will submit a request for assistance containing the following
information to the Deputy Assistant Secretary for Acquisition and
Materiel Management (90):
(1) A description of the maintenance and repair project or the new
item, whichever is applicable;
(2) The critical material and the amount required;
(3) The contractor's sources of supply, including any addresses. If
the source is other than the manufacturer or producer, also list the
name and address of the manufacturer or producer;
(4) The Department of Veterans Affairs contract or purchase order
number;
(5) The contractor's purchase order number, if known, and the
delivery time requirement as stated in the solicitation or offer;
(6) The additional time the contractor claims will be necessary to
effect delivery if priority assistance is not provided;
(7) The nature and extent of the emergency that will be generated
at the station, e.g.,
(i) Damage to the physical plant,
(ii) Impairment of the patient care program,
(iii) Creation of safety hazards, and
(iv) Any other pertinent condition that will result because of
failure to secure assistance in obtaining the critical materials; and
(8) If applicable, a statement that the item required is for use in
a construction contract which was authorized by the Chief Facilities
Management Officer, Office of Facilities Management, to be awarded and
administered by the facility contracting officer.
4. Part 812 is revised to read as follows:
PART 812--ACQUISITION OF COMMERCIAL ITEMS
Subpart 812.3--Solicitation Provisions and Contract Clauses for the
Acquisition of Commercial Items
812.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(a) Notwithstanding prescriptions contained elsewhere in this
chapter, when acquiring commercial items, contracting officers shall be
required to use only those provisions and clauses prescribed in this
part.
(b) The provision and clause in the following VAAR sections shall
be used, in accordance with the prescriptions contained therein or
elsewhere in this chapter, in requests for quotations, solicitations,
or contracts for the acquisition of commercial items:
(1) 852.219-70, Veteran-owned small business.
(2) 852.270-4, Commercial advertising.
(c) The provisions and clauses in the following VAAR sections shall
be used, when appropriate, in accordance with the prescriptions
contained therein or elsewhere in this chapter, in requests for
quotations, solicitations, or contracts for the acquisition of
commercial items:
(1) 852.211-71, Guarantee clause.
(2) 852.211-72, Inspection.
(3) 852.211-73, Frozen processed foods.
(4) 852.211-74, Telecommunications equipment.
(5) 852.211-75, Technical industry standards.
(6) 852.214-70, Caution to bidders-bid envelopes.
(7) 852.216-70, Estimated quantities for requirements contracts.
(8) 852.229-70, Purchases from patient's funds.
(9) 852.229-71, Purchases for patients using Government funds and/
or personal funds of patients.
(10) 852.233-70, Protest content.
(11) 852.237-70, Contractor responsibilities.
(12) 852.237-71, Indemnification and insurance (vehicle and
aircraft service contracts).
(13) 852.270-1, Representatives of contracting officers.
(14) 852.270-2, Bread and bakery products.
(15) 852.270-3, Purchase of shell fish.
(d) The clauses in the following VAAR sections shall be used, when
appropriate, in accordance with the prescriptions contained therein or
elsewhere in this chapter, in requests for quotations, solicitations,
or contracts for the acquisition of commercial items, provided the
contracting officer determines that use of the clauses is consistent
with customary commercial practices.
(1) 852.211-70, Requirements for operating and maintenance manuals.
(2) 852.211-77, Brand name or equal.
(e) The contracting officer shall insert the clause in 852.271-70,
Services provided eligible beneficiaries, by reference, in all requests
for quotations, solicitations, and contracts meeting the prescription
contained therein.
(f) Clauses are not required for micro-purchases using the
procedures of this part or part 813. However, this does not prohibit
the use of any clause prescribed in this part or elsewhere in this
chapter in micro-purchases when determined by the contracting officer
to be in the Government's best interest.
812.302 Tailoring of provisions and clauses for the acquisition of
commercial items.
Agency procedures for approval of waivers: Waivers to tailor
solicitations in a manner that is inconsistent with customary
commercial practice shall be prepared by contracting officers in
accordance with FAR 12.302(c). Waiver requests shall be submitted to
the contracting officer's next higher level supervisor for approval.
Approved requests shall be retained in the contract file.
PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
836.202 [Amended]
5. In part 836, Sec. 836.202(a) is amended by removing ``part 810''
and adding, in its place, ``part 811''.
836.206 [Amended]
6. In part 836, Sec. 836.206 is amended by removing ``812.202'' and
adding, in its place, ``811.502''; by removing ``852.212-70'' and
adding, in its place, ``852.211-78''; and by removing ``52.212-5'' and
adding, in its place, ``52.211-12''.
PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
7. Part 852 is amended by redesignating the following sections as
set forth below:
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
852.210-70................................................ 852.211-70
852.210-71................................................ 852.211-71
852.210-72................................................ 852.211-72
852.210-73................................................ 852.211-73
852.210-74................................................ 852.211-74
852.210-75................................................ 852.211-75
852.210-76................................................ 852.211-76
------------------------------------------------------------------------
852.210-77 [Redesignated as 852.211-77]
8. In part 852, Sec. 852.210-77 is redesignated as Sec. 852.211-77
and the introductory text is amended by removing ``810.004'' and
adding, in its place, ``811.104''.
852.212-70 [Redesignated as 852.211-78]
9. In part 852, Sec. 852.212-70 is redesignated as Sec. 852.211-78,
and the introductory text is amended by
[[Page 44945]]
removing ``812.204'' and adding, in its place, ``811.504''.
852.219-70 [Amended]
10. In part 852, Sec. 852.219-70 introductory text is amended by
removing ``819.7003(a)'' and adding, in its place, ``819.7003(b)''.
852.229-70 [Amended]
11. In part 852, Sec. 852.229-70 introductory text is amended by
adding ``or, if the contract is for commercial items, in lieu of
paragraph (k), Taxes, in FAR clause 52.212-4'' immediately after ``in
FAR 52.229-1''.
852.229-71 [Amended]
12. In part 852, Sec. 852.229-71 introductory text is amended by
adding ``or, if the contract is for commercial items, as an addendum to
FAR clause 52.212-4'' immediately after ``in FAR 52.229-1''.
852.271-70 [Amended]
13. In part 852, Sec. 852.271-70 is amended by removing ``Chief
Medical Director'' and adding, in its place, ``Under Secretary for
Health''.
PART 870--SPECIAL PROCUREMENT CONTROLS
14. The authority citation for part 870 is revised to read as
follows:
Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).
870.112 [Amended]
15. In part 870, Sec. 870.112, paragraph (a) is amended by removing
``852.210-74'' and adding, in its place, ``852.211-74'', Footnote 1 is
amended by removing ``Veterans Administration'' and adding, in its
place, ``Department of Veterans Affairs'', paragraph (b) is amended by
removing ``852.210-74'' and adding, in its place, ``852.211-74'', by
removing ``the Office of Information Resources Operations'' and adding,
in its place, ``Telecommunications Support Service''; by removing
``(93)'' each time it appears in paragraphs (b) and (c)(1) and adding,
in its place, ``, Acquisition Administration Team''.
[FR Doc. 97-21869 Filed 8-22-97; 8:45 am]
BILLING CODE 8320-01-P
