2019-17824. VA Acquisition Regulation: Contracting by Negotiation; Service Contracting

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is amending and updating its VA Acquisition Regulation (VAAR) in phased increments to revise or remove any policy superseded by changes in the Federal Acquisition Regulation (FAR), to remove procedural guidance internal to VA into the VA Acquisition Manual (VAAM), and to incorporate any new agency specific regulations or policies. These changes seek to streamline and align the VAAR with the FAR and remove outdated and duplicative requirements and reduce burden on contractors. The VAAM incorporates portions of the removed VAAR as well as other internal agency acquisition policy. VA will rewrite certain parts of the VAAR and VAAM, and as VAAR parts are rewritten, VA will publish them in the Federal Register. In particular, this rulemaking revises VAAR concerning Contracting by Negotiation and Service Contracting, as well as affected parts covering the Department of Veterans Affairs Acquisition Regulation System, Types of Contracts, Termination of Contracts, Solicitation Provisions and Contract Clauses, and Loan Guaranty and Vocational Rehabilitation and Employment Programs.

DATES:

This rule is effective on October 4, 2019.

FOR FURTHER INFORMATION CONTACT:

Mr. Rafael N. Taylor, Senior Procurement Analyst, Procurement Policy and Warrant Management Services, 003A2A, 425 I Street NW, Washington, DC 20001, [phone]. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION:

On September 7, 2018, VA published a proposed rule in the Federal Register (83 FR 45384) which announced VA's intent to amend regulations for VAAR Case RIN 2900-AQ20—VA Acquisition Regulation: Contracting by Negotiation; Service Contracting. VA provided a 60-day comment period for the public to respond to the proposed rule and submit comments. The comment period for the proposed rule ended on November 6, 2018 and VA received three comments from one commenter. This rule adopts as a final rule, with changes, the proposed rule published in the Federal Register on September 7, 2018, with minor formatting and/or grammatical edits, as well as the non-substantive changes described below. VA reviewed and considered the comments raised by the one commenter in the development of this final rule. A discussion of the issues raised in the comments as well as the changes made to the rule as a result of those comments, and the technical non-substantive changes to the final rule are provided as follows:

In particular, this final rule revises the table at 801.106 to reflect the addition of new VAAR clause 852.237-73, Crime Control Act—Requirement for Background Checks and the corresponding new OMB control number 2900-0863. This final rule also removes 815.303, Responsibilities, and 815.304, Evaluation factors and significant subfactors, and moves them to the VAAM as they contain procedural guidance that is internal to the VA.

This rule adds a new section, 815.370, Only one offer. The inclusion of this policy gives the contracting officer the ability to re-solicit for an action if they only receive one offer and if the solicitation gave offerors less than 30 days to submit a proposal. This final rule removes subpart 815.4, Contract Pricing, as it contains procedural guidance that is internal to the VA and the content has been moved to the VAAM.

This final rule removes subpart 815.6, Unsolicited Proposals, as it contains procedural guidance. This rulemaking adds subpart 816.5 and section 816.506-70, Requirements—supplement for mortuary services, which prescribes clause 852.216-76, Requirements—Supplement for Mortuary Services, for all contracts for mortuary services.

Under part 837, this final rule removes section 837.103, Contracting officer responsibility, as this internal procedural guidance is more suitable for the VAAM. This rule also removes the title and text at section 837.110, Solicitation provisions and contract clauses, since FAR 52.237-2, Protection of Government Buildings, Equipment and Vegetation, and 852.228-71, Indemnification and Insurance, outline contractor liabilities and required insurance levels and provides sufficient coverage in this area.

This final rule amends section 837.110-70, Services provided to eligible beneficiaries, by retitling it “VA solicitation provisions and contract clauses,” by removing the prescription for the clause, 852.271-70, Non-Discrimination in Services Provided to Beneficiaries, and by adding the prescriptions for the new clauses 852.237-74, Non-Discrimination in Service Delivery, and 852.237-75, Key Personnel. This final rule removes subpart 837.2, Advisory and Assistance Services, since it duplicates coverage in FAR.

This rule amends section 837.403, Contract clause, to redesignate it as section 837.403-70, VA contract clauses, and adds prescriptions for three new clauses that address protection of children under contracts providing child care services as required by FAR 37.103(d): 852.237-71, Nonsmoking Policy for Children Services; 852.237-72, Crime Control Act—Reporting of Child Abuse; and 852.237-73, Crime Control Act—Requirement for Background Checks.

Under subpart 837.70, Mortuary Services, this rule adds section 837.7000, Scope, which cites the statutory basis for the mortuary service benefits covered. This final rule also removes sections 837.7002, List of qualified funeral directors; 837.7003, Funeral authorization; 837.7004, Administrative necessity; and 837.7005, Unclaimed remains—all other cases, because this material was based on internal VA guidance that has been rescinded.

This final rule adds subpart 849.5, Contract Termination Clauses, section 849.504, Termination of fixed-price contracts for default (no text), and section 849.504-70, Termination of mortuary services, to prescribe a new clause 852.249-70, Termination for Default—Supplement for Mortuary Services. Under subpart 852.2, this regulatory action amends clause 852.215-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors to add language to comply with the statute requiring any business concern determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status to be subject to debarment for a period of not less than five years.

This final rule amends 852.215-71, Evaluation Factor Commitments, by adding language requiring that any business concern determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status be subject to debarment for a period of not less than five years.

This final rule adds clause 852.215-72, Notice of Intent to Re-Solicit, which informs offerors that in the event that only one offer is received in response to a solicitation that allows offerors fewer than 30 days to submit their proposal, the Contracting Officer may cancel the solicitation and re-solicit for an additional period of at least 30 days in accordance with 815.370-2.

This rulemaking adds clause 852.216-76, Requirements—Supplement for Mortuary Services, for all requirements contracts for mortuary services. Under part 871, this rule revises section 871.212, to redesignate the first paragraph as (a); to remove the prescription of clause 852.271-70, Non-Discrimination in Services Provided to Beneficiaries; to renumber the remaining paragraphs as (1) through (4); and to add new paragraph (b) to refer the contracting officer to section 837.110-70(a) for the prescription of the new clause 852.237-74, Non-Discrimination in Service Delivery.

VA provided a 60-day comment period for the public to respond to the proposed rule. The comment period for the proposed rule ended on November 6, 2018 and VA received comments from one commenter. The issues raised in the comments as well as the changes made to the proposed rule on the basis of those comments are provided as follows:

The commenter believes VAAR 815.370-4(b) could be misread to suggest that, even when the exception applies, the contracting officer must still consider maximizing competition when only one offer has been received—which in many cases would mean considering whether to re-solicit the requirement. The commenter commends VA for its thoughtful development of this rule and of the agency's overarching goal of revising and streamlining the VAAR, stating that SDVOSBs and VOSBs, as well as VA contracting officers, will benefit from the clarity this rulemaking provides.

VA concurs with the commenter in that a set-aside or any of the other exemptions should not be subject to additional competition if the contracting officer determines the price is fair and reasonable. Therefore, we will retain the paragraph, but will modify the statement related to additional competition in the first part of the sentence. Paragraph (b) will read:

“(b) The applicability of an exception in paragraph (a) of this section does not eliminate the need for the contracting officer to ensure adequate time for competition is allotted or that the price is fair and reasonable.”

The commenter believes that the SDVOSB/VOSB evaluation preference at 15.304 should be applied in all instances a set-aside is not performed, even on a lowest price technically acceptable (LPTA) contract action. The commenter also recommends that when applying the full and partial credit for SDVOSBs and VOSBs under subsection (b) in a procurement where price is the only factor or that uses a lowest price technically acceptable source selection process as described in FAR 15.101-2, the contracting officer must deem the price offered by a verified SDVOSB to be 10% lower than its proposed price for evaluation purposes, and the price offered by a verified VOSB to be 5% lower than its proposed price for evaluation purposes.

VA appreciates the comment. However, the commenter recommends VA apply a price evaluation preference. VA does not possess statutory authority for a price evaluation preference. Therefore, no changes to the proposed rule will be made.

Beyond the contracting priority to be used when setting a contract or order aside, the commenter further believes that VA also must give an evaluation preference to SDVOSBs and VOSBs, with greater evaluation preference for SDVOSBs, then VOSBs, then all other small businesses consistent with Veterans First. In this regard, the commenter is recommending that VA should revise the proposed language at VAAR 815.304-71(a), which currently says that contracting officers shall insert VAAR 852.215-70, SDVOSB and VOSB Evaluation Factors, “in competitively negotiated solicitations that are not set aside for SDVOSBs or VOSBs.” 83 FR at 45379. The commenter recommends that this should be revised to exclude only SDVOSB set-asides.

VA appreciates the comment. It is VA policy that SDVOSBs have priority over VOSBs when contracting under the authority of 38 U.S.C. 8127(i). However, the intent of the evaluation preference is to provide additional preference to veteran-owned small businesses when a procurement is performed outside of the authority under 38 U.S.C. 8127. This is in recognition of the requirement in 38 U.S.C. 8128(a) that small business concerns “owned and controlled by veterans” have a priority over other small businesses. 38 U.S.C. 8128(a) does not make a distinction between SDVOSB or VOSB. Therefore, the proposed language will remain unchanged.

In addition, this final rule also includes two technical non-substantive changes to the proposed rule at section 815.370-4(a)(2) and (a)(3) which will be finalized in this final rule as described below. It updates language to comport with the FAR that was issued as FAR Class Deviations and does not significantly change the intent or meaning of the originally proposed language.

Technical Non-Substantive Changes to the Proposed Rule

Under section 815.370-4, Exceptions, in this final rule, two technical corrections are made to the proposed rule language—

1. At paragraph (a)(2), the exception is corrected to remove “humanitarian or peacekeeping” and to add the word “cyber” as one of the exceptions permitted for acquisitions to facilitate defense against or recovery from, and to add the phrase at the end of the sentence, “or to support response to an emergency or major disaster.” “Humanitarian or peacekeeping” is removed as VA supports emergencies or major disasters and recovery therefrom. This update comports with two FAR Class Deviations that adds new definitions for “Emergency,” and “Major Disaster,” as well as adds “cyber” to the list of actions to facilitate defense against or recovery from when referring to the updated “micro-purchase threshold” and “simplified acquisition threshold” amounts authorized by an existing FAR Class Deviation and for which a FAR case is in progress. Therefore, 815.370-4, Exceptions, paragraph (a)(2) would now read: “(2) Acquisitions in support of emergency operations, or to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; or to support response to an emergency or major disaster;”.

2. Under paragraph (a)(3), the reference to “VAAR 19” is updated to reflect a more accurate citation of “VAAR subpart 819.70.”

Under section 837.7001, Solicitations provisions and contract clauses, one technical change is made to the proposed rule language—

Under paragraph (b), the text is revised to remove a reference to ALT VI for the clause FAR 52.216-21, Requirements. Paragraph (b) now reads as follows: “The contracting officer shall insert in addition to FAR 52.216-21, Requirements, the following VA clauses in all mortuary service solicitations and contracts:” The rest of paragraph (b) and section 837.7001 remain unchanged as a result of this rulemaking.

Effect of Rulemaking

Title 48, Federal Acquisition Regulations System, Chapter 8, Department of Veterans Affairs, of the Code of Federal Regulations, as proposed to be revised by this rulemaking, would represent VA's implementation of its legal authority and publication of the Department of Veterans Affairs Acquisition Regulation (VAAR) for the cited applicable parts. Other than future amendments to this rule or governing statutes for the cited applicable parts, or as otherwise authorized by approved deviations or waivers in accordance with FAR subpart 1.4, Deviations from the FAR, and as implemented by VAAR subpart 801.4, Deviations from the FAR or VAAR, no contrary guidance or procedures would be authorized. All existing or subsequent VA guidance would be read to conform with the rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking as pertains to the cited applicable VAAR parts.

Executive Orders 12866, 13563 and 13771

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 12866, Regulatory Planning and Review defines “significant regulatory action” to mean any regulatory action that is likely to result in a rule that may: “(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal Governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866.

VA's impact analysis can be found as a supporting document at http://www.regulations.gov,, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/​orpm by following the link for VA Regulations Published from FY 2004 Through Fiscal Year to Date. This final rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi). This final rule amends one information collection requirement and imposes one new information collection requirement. Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for its review.

Under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), a current collection of information, OMB No. 2900-0590, that will now be contained in part 837 at section 837.403-70 and in part 852 at section 852.237-70, was revised as set forth in the SUPPLEMENTARY INFORMATION portion of this final rule. The clause number that appears in the table at 801.106 is also revised accordingly.

Summary of collection of information:

This final rule contains provisions constituting an existing information collection at 48 CFR 837.403 and 852.237-7, under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) and has been assigned OMB control number 2900-0590. This final rule revises 837.403 to renumber it as 837.403-70, to retitle it as “VA contract clauses,” and to renumber the clause as 852.237-70 while retaining the title, “Indemnification and Medical Liability Insurance.”

Clause 852.237-70 is used in lieu of FAR clause 52.237-7, Indemnification and Medical Liability Insurance, in solicitations and contracts for the acquisition of non-personal health care services. It requires the apparent successful bidder/offeror, upon the request of the contracting officer, prior to contract award, to furnish evidence of insurability of the offeror and/or all health-care providers who will perform under the contract. In addition, the clause requires the contractor, prior to commencement of services under the contract, to provide Certificates of Insurance or insurance policies evidencing that the firm possesses the types and amounts of insurance required by the solicitation. This final rule modifies the collection to require the contractor to notify the contracting officer within five days of becoming aware of a change in insurance providers during the performance period of this contract for all health-care providers performing under this contract, and to provide to the contracting officer evidence of such insurance for any subcontractor at least five days before commencement of work by that subcontractor.

Description of need for information and proposed use of information:

The information is required in order to protect VA by ensuring that the firm to which award may be made and the individuals who may provide health care services under the contract are insurable and that, following award, the contractor and its employees will continue to possess the types and amounts of insurance required by the solicitation. It helps ensure that VA will not be held liable for any negligent acts of the contractor or its employees and ensures that VA and VA beneficiaries will be protected by adequate insurance coverage. The clause number is changed to 852.237-70 to conform to the FAR guidance for numbering of clauses. The burden imposed by this collection remains unchanged as follows:

Estimated number of respondents annually: 1,500.

Estimated frequency of responses: One response for each contract to be awarded.

Estimated average burden per collection: 30 minutes.

Estimate of the total annual hour burden of the collection of information: 750 hours.

Annual cost to all respondents: $15,000 (at $20 per hour, based on our belief that the majority of the labor effort would be clerical similar to GS-5).

Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), a new collection of information is prescribed, under OMB No. 2900-0863, that is contained in Part 837 at section 837.403-70 (d) and Part 852 at clause 852.237-73, as set forth in the SUPPLEMENTARY INFORMATION portion of this final rule. The clause number and the OMB clearance number are added to the table at 801.106.

Summary of collection of information:

Under the Crime Control Act of 1990 (42 U.S.C. 13041), each agency of the Federal Government, and every facility operated by the Federal Government, or operated under contract with the Federal Government, that hires, or contracts for hire, individuals involved with the provision of child care services to children under the age of 18 shall assure that all existing and newly-hired employees undergo a criminal history background check.

New VAAR clause 852.237-73, Crime Control Act—Requirement for Background Checks, is required in all solicitations, contracts, and orders that involve providing child care services to children under the age of 18, including social services, health and mental health care, child-(day) care, education (whether or not directly involved in teaching), and rehabilitative programs covered under the statute.

Description of need for information and use of information:

The contract clause requires the contractor to perform the background checks on behalf of VA to assure the safety of children under the age of 18 that are recipients of services under a VA program. It is intended to assure their safety by avoiding hiring individuals with a history of criminal acts and especially acts of child abuse. The following estimated annual burden has been revised and reduced from that in the proposed rule based on contract data from the last three fiscal years which reflect a pool of awarded contracts which include child care services to arrive at a revised estimated annual burden amount. In the proposed rule, the estimated number of respondents annually were based on health service contracts awarded, whereas in this final rule, the estimated number of respondents was calculated based on contracts awarded under NAICS codes associated with child care services. An average of 10 responses per contract is a reasonable estimate for an awarded child care services contract.

Estimated number of respondents annually: 150.

Estimated frequency of responses: 10 per contract awarded.

Estimated average burden per collection: 1 hour.

Estimate of the total annual hour burden of the collection of information: 1,500 hours.

Annual cost to all respondents: $74,550 ($49.70 rate including fringe benefits and assuming Bureau of Labor Statistics wage code 11-3011, Administrative Services Managers.)

This clause enables the VA to be in compliance with the Crime Control Act of 1990 and to protect children that are within its health care systems.

Notice regarding this information collection requirement was posted to the Federal Register via the preamble of Proposed Rule RIN 2900-AQ20 on September 7, 2018 (83 FR 45374) with comment period closing date of November 6, 2018. VA didn't receive any public comments related to this information collection. As a result, OMB issued a tentative control number 2900-0863 to this new information collection to be used for final rule publication. After the publication of this final rule, VA will resubmit this information collection (2900-0863) to OMB for its final approval.

Regulatory Flexibility Act

This final rule does not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The overall impact of the rule is of benefit to small businesses owned by Veterans or service-disabled Veterans as the VAAR is being updated to remove extraneous procedural information that applies only to VA's internal operating processes or procedures. VA estimates no cost impact to individual business will result from these rule updates. On this basis, the final rule does not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, under 5 U.S.C. 605(b), this regulatory action is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal Governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal Governments or on the private sector.

Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects

48 CFR Part 801

• Administrative practice and procedure

48 CFR Parts 815, 816, 837, and 849

• Government procurement

48 CFR Part 852

• Government procurement
• Reporting and recordkeeping requirements

48 CFR Part 871

• Government procurement
• Loan programs—social programs
• Loan programs—veterans
• Reporting and recordkeeping requirements
• Vocational rehabilitation

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Wilkie, Secretary, Department of Veterans Affairs, approved this document on July 25, 2019, for publication.

Dated: August 14, 2019.

Consuela Benjamin,

Regulations Development Coordinator, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.

For the reasons set out in the preamble, VA revises 48 CFR parts 801, 815, 816, 837, 849, 852 and 871 as follows:

PART 801—DEPARTMENT OF VETERANS AFFAIRS ACQUISITION REGULATION SYSTEM

1. The authority citation for part 801 continues to read as follows:

Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121; 42 U.S.C. 1303; 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

Subpart 801.1—Purpose, Authority, Issuance

2. Revise the table in section 801.106 to read as follows:

801.106

OMB approval under the Paperwork Reduction Act.

* * * * *

48 CFR part or section where identified and described	Current OMB control No.	48 CFR part or section where identified and described	Current OMB No.
809.106-1	2900-0418	852.228-71	2900-0590
809.504(d)	2900-0418	852.232-70-852.232-71	2900-0422
813	2900-0393	852.236-72	2900-0422
832.202-4	2900-0688	852.236-79	2900-0208
836.606-71	2900-0208	852.236-80 (Alt. I)	2900-0422
852.207-70	2900-0590	852.236-88	2900-0422
852.209-70	2900-0418	852.237-70	2900-0590
852.211-70	2900-0587	852.237-73	2900-0863
852.211-72	2900-0586	852.246-76	2900-0589
		852.270-3	2900-0589

PART 815—CONTRACTING BY NEGOTIATION

3. The authority citation for part 815 is revised to read as follows:

Authority: 38 U.S.C. 8127 and 8128; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

Subpart 815.3—Source Selection

815.303

[Removed]

4. Section 815.303 is removed.

815.304

[Removed]

5. Section 815.304 is removed.

6. Section 815.304-70 is revised to read as follows:

815.304-70

Evaluation factor commitments.

Contracting officers shall—

(a) Include the clause at 852.215-70, Service-Disabled Veteran-Owned Small Business and Veteran-Owned Small Business Evaluation Factors, in negotiated solicitations and contracts giving preference to offers received from VOSBs and additional preference to offers received from SDVOSBs;

(b) Use past performance in meeting SDVOSB subcontracting goals as a non-price evaluation factor in making award determination; and

(c) Use the proposed inclusion of SDVOSBs or VOSBs as subcontractors as an evaluation factor when competitively negotiating the award of contracts or task or delivery orders.

7. Section 815.304-71 is revised to read as follows:

815.304-71

Solicitation provision and clause.

(a) The contracting officer shall insert the clause at 852.215-70, Service-Disabled Veteran-Owned Small Business and Veteran-Owned Small Business Evaluation Factors, in competitively negotiated solicitations and contracts that are not set aside for SDVOSBs or VOSBs.

(b) The contracting officer shall insert the clause at 852.215-71, Evaluation Factor Commitments, in solicitations and contracts that include VAAR clause 852.215-70, Service-Disabled Veteran-Owned Small Business and Veteran-Owned Small Business Evaluation Factors.

8. Section 815.370 is added to read as follows:

815.370

Only one offer.

9. Section 815.370-1 is added to read as follows:

815.370-1

Policy.

It is VA policy, if only one offer is received in response to a competitive solicitation, to—

(a) Take action to promote competition (see 815.370-2); and

(b) Ensure that the price is fair and reasonable (see 815.370-3) and comply with the statutory requirement for certified cost or pricing data (see FAR 15.403-4).

10. Section 815.370-2 is added to read as follows:

815.370-2

Promote competition.

Except as provided in 815.370-4, if only one offer is received when competitive procedures were used and the solicitation allowed fewer than 30 days for receipt of proposals, the contracting officer should—

(a) Consult with the requiring activity as to whether the requirements document should be revised in order to promote more competition (see FAR 6.502(b) and 11.002); and

(b) Consider re-soliciting, allowing an additional period of at least 30 days for receipt of proposals.

11. Section 815.370-3 is added to read as follows:

815.370-3

Fair and reasonable price.

(a) If there was “reasonable expectation that two or more offerors, competing independently, would submit priced offers” but only one offer is received, this circumstance does not constitute adequate price competition unless an official at a level above the contracting officer approves the determination that the price is reasonable (see FAR 15.403-1(c)(1)(ii)).

(b) Except as provided in 815.370-4(a), if only one offer is received when competitive procedures were used and the solicitation allowed at least 30 days for receipt of proposals (unless the 30-day requirement is not applicable in accordance with 815.370-4(a)(3)), the contracting officer shall—

(1) Determine through cost or price analysis that the offered price is fair and reasonable and that adequate price competition exists (with approval of the determination at a level above the contracting officer) or another exception to the requirement for certified cost or pricing data applies (see FAR 15.403-1(c) and 15.403-4). In these circumstances, no further cost or pricing data is required; or

(2)(i) Obtain from the offeror cost or pricing data necessary to determine a fair and reasonable price and comply with the requirement for certified cost or pricing data at FAR 15.403-4. For acquisitions that exceed the cost or pricing data threshold, if no exception at FAR 15.403-1(b) applies, the cost or pricing data shall be certified; and

(ii) Enter into negotiations with the offeror as necessary to establish a fair and reasonable price. The negotiated price should not exceed the offered price.

12. Section 815.370-4 is added to read as follows:

815.370-4

Exceptions.

(a) The requirements at 815.370-2 do not apply to—

(1) Acquisitions at or below the simplified acquisition threshold;

(2) Acquisitions in support of emergency, humanitarian or peacekeeping operations, or to facilitate defense against or recovery from cyber, nuclear, biological, chemical, or radiological attack; or to support response to an emergency or major disaster;

(3) Small business set-asides under FAR subpart 19.5, set-asides offered and accepted into the 8(a) Program under FAR subpart 19.8, or set-asides under the HUBZone Program (see FAR 19.1305(c)), the VA Small Business Program (see VAAR subpart 819.70), or the Women-Owned Small Business Program (see FAR 19.1505(d));

(4) Acquisitions of basic or applied research or development, as specified in FAR 35.016(a), that use a broad agency announcement; or

(5) Acquisitions of architect-engineer services (see FAR 36.601-2).

(b) The applicability of an exception in paragraph (a) of this section does not eliminate the need for the contracting officer to ensure adequate time for competition is allotted or that the price is fair and reasonable.

13. Section 815.370-5 is added to read as follows:

815.370-5

Solicitation provision.

Use the provision at 852.215-72, Notice of Intent to Re-solicit, in competitive solicitations, including solicitations using FAR part 12 procedures for the acquisition of commercial items that will be solicited for fewer than 30 days, unless an exception at 815.370-4 applies.

Subpart 815.4 [Removed and Reserved]

14. Subpart 815.4, consisting of sections 815.404, 815.404-1, and 815.404-2, is removed and reserved.

Subpart 815.6 [Removed and Reserved]

15. Subpart 815.6, consisting of sections 815.604, 815.606, and 815.606-1, is removed and reserved.

PART 816—TYPES OF CONTRACTS

16. The authority citation for part 816 is revised to read as follows:

Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

Subpart 816.5—Indefinite-Delivery Contracts

17. Section 816.506-70 is added to read as follows:

816.506-70

Requirements—supplement for mortuary services.

Insert the clause 852.216-76, Requirements—Supplement for Mortuary Services, in contracts for mortuary services containing FAR clause 52.216-21, Requirements. The contracting officer shall insert activities authorized to place orders in paragraph (e) of the clause.

PART 837—SERVICE CONTRACTING

18. The authority citation for part 837 is revised to read as follows:

Authority: Pub. L. 101-647; 20 U.S.C. 7181-7183; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

Subpart 837.1—Service Contracts—General

837.103

[Removed]

19. Section 837.103 is removed.

837.110

[Removed]

20. Section 837.110 is removed.

21. Section 837.110-70 is revised to read as follows:

837.110-70

VA solicitation provisions and contract clauses.

(a) Contracting officers shall include the clause at 852.237-74, Non-Discrimination in Service Delivery, in all solicitations and contracts covering services provided to eligible beneficiaries.

(b) The contracting officer shall insert the clause at 852.237-75, Key Personnel, in solicitations and contracts when the contracting officer will require the contractor to designate contractor key personnel.

Subpart 837.2 [Removed and Reserved]

22. Subpart 837.2, consisting of section 837.203, is removed and reserved.

Subpart 837.4—Nonpersonal Health Care Services

837.403

[Redesignated as 837.403-70 and Amended]

23. Section 837.403 is redesignated as 837.403-70 and the newly redesignated section is revised to read as follows:

837.403-70

VA contract clauses.

(a) The contracting officer shall insert the clause at 852.237-70, Indemnification and Medical Liability Insurance, in lieu of FAR clause 52.237-7, in solicitations and contracts for nonpersonal health care services, including contracts awarded under the authority of 38 U.S.C. 7409, 38 U.S.C. 8151-8153, and part 873. The contracting officer may include the clause in bilateral purchase orders for nonpersonal health care services awarded under the procedures in FAR part 13 and part 813.

(b) The contracting officer shall insert the clause at 852.237-71, Nonsmoking Policy for Children's Services, in solicitations, contracts, and orders that involve health or daycare services that are provided to children under the age of 18 on a routine or regular basis pursuant to the Nonsmoking Policy for Children's Services (20 U.S.C. 6081-6084).

(c) The contracting officer shall insert the clause at 852.237-72, Crime Control Act—Reporting of Child Abuse, in solicitations, contracts, and orders that require performance on Federal land or in a federally operated (or contracted) facility and involve the professions/activities performed by persons specified in the Crime Control Act of 1990 (42 U.S.C. 13031) including, but not limited to, teachers, social workers, physicians, nurses, dentists, health care practitioners, optometrists, psychologists, emergency medical technicians, alcohol or drug treatment personnel, child care workers and administrators, emergency medical technicians and ambulance drivers.

(d) The contracting officer shall insert the clause at 852.237-73, Crime Control Act—Requirement for Background Checks, in solicitations, contracts, and orders that involve providing child care services to children under the age of 18, including social services, health and mental health care, child- (day) care, education (whether or not directly involved in teaching), and rehabilitative programs covered under the Crime Control Act of 1990 (42 U.S.C. 13041).

Subpart 837.70—Mortuary Services

24. Section 837.7000 is added to read as follows:

837.7000

Scope.

This subpart applies to mortuary (funeral and burial) services for beneficiaries of VA as provided in 38 U.S.C. 2302, 2303, and 2308 when it is determined that a contract would be the most efficient and effective method. Contract payment terms for use of the purchase card as a method of payment should also be considered.

25. Section 837.7001 is revised to read as follows:

837.7001

Solicitation provisions and contract clauses.

(a) The contracting officer shall insert the basic or the alternate of the provision at 852.237-76, Award to Single Offeror, in solicitations and contracts for mortuary services as follows:

(1) Insert the provision in all sealed bid solicitations for mortuary services; and

(2) Insert the basic provision with its alternate I in all negotiated solicitations for mortuary services.

(b) The contracting officer shall insert in addition to FAR 52.216-21, Requirements, the following VA clauses in all mortuary service solicitations and contracts:

(1) 852.237-77, Area of Performance.

(2) 852.237-78, Performance and Delivery.

(3) 852.237-79, Subcontracting.

(4) 852.237-80, Health Department and Transport Permits.

(c) See also 816.506-70 and 849.504-70 for additional clauses for use in contracts for mortuary services.

837.7002

[Removed]

26. Section 837.7002 is removed.

837.7003

[Removed]

27. Section 837.7003 is removed.

837.7004

[Removed]

28. Section 837.7004 is removed.

837.7005

[Removed]

29. Section 837.7005 is removed.

PART 849—TERMINATION OF CONTRACTS

30. The authority citation for part 849 is revised to read as follows:

Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304.

31. Subpart 849.5 is added to read as follows:

Subpart 849.5—Contract Termination Clauses

849.504

Termination of fixed-price contracts for default.

849.504-70

Termination of mortuary services.

Use the clause at 852.249-70, Termination for Default—Supplement for Mortuary Services, in all solicitations and contracts for mortuary services. This clause is to be used with FAR clause 52.249-8, Default (Fixed-Price Supply and Service).

PART 852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

32. The authority citation for part 852 is revised to read as follows:

Authority: Pub. L.101-647; 20 U.S.C. 7181-7183; 38 U.S.C. 8127-8128, and 8151-8153; 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1303; 41 U.S.C 1702; and 48 CFR 1.301 through 1.304.

Subpart 852.2—Texts of Provisions and Clauses

33. Section 852.215-70 is revised to read as follows:

852.215-70

Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors.

As prescribed in 815.304-71(a), insert the following clause:

Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors (OCT 2019)

(a) In an effort to achieve socioeconomic small business goals, VA shall evaluate offerors based on their service-disabled veteran-owned or veteran-owned small business status and their proposed use of eligible service-disabled veteran-owned small businesses (SDVOSBs) and veteran-owned small businesses (VOSBs) as subcontractors.

(b) Eligible service-disabled veteran-owned small businesses offerors will receive full credit, and offerors qualifying as veteran-owned small businesses will receive partial credit for the Service-Disabled Veteran-Owned and Veteran-Owned Small Business Status evaluation factor. To receive credit, an offeror must be registered and verified in the Vendor Information Pages (VIP) database.

(c) Non-Veteran offerors proposing to use SDVOSBs or VOSBs as subcontractors will receive some consideration under this evaluation factor. Offerors must state in their proposals the names of the SDVOSBs and VOSBs with whom they intend to subcontract and provide a brief description of the proposed subcontracts and the approximate dollar values of the proposed subcontracts. In addition, the proposed subcontractors must be registered and verified in the VIP database.

(d) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. This includes the debarment of all principals in the business.

(End of clause)

34. Section 852.15-71 is revised to read as follows:

852.215-71

Evaluation Factor Commitments.

As prescribed in 815.304-71(b), insert the following clause:

Evaluation Factor Commitments (OCT 2019)

(a) The offeror agrees, if awarded a contract, to use the service-disabled veteran-owned small businesses (SDVOSBs) or veteran-owned small businesses (VOSBs) proposed as subcontractors in accordance with 852.215-70, Service-Disabled Veteran-Owned and Veteran-Owned Small Business Evaluation Factors, or to substitute one or more SDVOSBs or VOSBs for subcontract work of the same or similar value.

(b) Pursuant to 38 U.S.C. 8127(g), any business concern that is determined by VA to have willfully and intentionally misrepresented a company's SDVOSB/VOSB status is subject to debarment for a period of not less than five years. This includes the debarment of all principals in the business.

(End of clause)

35. Section 852.215-72 is added to read as follows:

852.215-72

Notice of Intent to Re-Solicit.

As prescribed at 815.370-5, use the following provision:

Notice of Intent to Re-Solicit (OCT 2019)

This solicitation provides offerors fewer than 30 days to submit proposals. In the event that only one offer is received in response to this solicitation, the Contracting Officer may cancel the solicitation and re-solicit for an additional period of at least 30 days in accordance with 815.370-2.

(End of provision)

36. Section 852.216-71 is amended by revising the section heading and clause heading to read as follows:

852.216-71

Economic Price Adjustment of Contract Price(s) Based on a Price Index.

* * * * *

Economic Price Adjustment of Contract Price(s) Based on a Price Index (MAR 2018)

* * * * *

37. Section 852.216-72 is amended by revising the section heading and clause heading to read as follows:

852.216-72

Proportional Economic Price Adjustment of Contract Price(s) Based on a Price Index.

* * * * *

Proportional Economic Price Adjustment of Contract Price(S) Based on a Price Index (MAR 2018)

* * * * *

38. Section 852.216-73 is amended by revising the section heading and clause heading to read as follows:

852.216-73

Economic Price Adjustment—State Nursing Home Care for Veterans.

* * * * *

Economic Price Adjustment—State Nursing Home Care for Veterans (Mar 2018)

* * * * *

39. Section 852.216-74 is amended by revising the section heading and clause heading to read as follows:

852.216-74

Economic Price Adjustment—Medicaid Labor Rates.

* * * * *

Economic Price Adjustment—Medicaid Labor Rates (Mar 2018)

* * * * *

40. Section 852.216-75 is amended by revising the section heading and clause heading to read as follows:

852.216-75

Economic Price Adjustment-Fuel Surcharge.

* * * * *

Economic Price Adjustment—Fuel Surcharge (Mar 2018)

* * * * *

41. Section 852.216-76 is added to read as follows:

852.216-76

Requirements—Supplement for Mortuary Services.

As prescribed in 816.506-70, insert the following clause:

Requirements—Supplement for Mortuary Services (Oct 2019)

(a) Except as provided in paragraphs (c) and (d) of this clause, the Government will order from the Contractor all of its requirements in the area of performance for the supplies and services listed in the schedule of this contract.

(b) Each order will be issued as a delivery order and will list—

(1) The supplies or services being ordered;

(2) The quantities to be furnished;

(3) Delivery or performance dates;

(4) Place of delivery or performance;

(5) Packing and shipping instructions;

(6) The address to send invoices; and

(7) The funds from which payment will be made.

(c) The Government may elect not to order supplies and services under this contract in instances where the body is removed from the area for medical, scientific, or other reason.

(d) In an epidemic or other emergency, the contracting activity may obtain services beyond the capacity of the Contractor's facilities from other sources.

(e) Contracting Officers of the following activities may order services and supplies under this contract:

(End of clause)

42. Section 852.228-71 is amended by revising the section heading and clause heading to read as follows:

852.228-71

Indemnification and Insurance.

* * * * *

Indemnification and Insurance (Mar 2018)

* * * * *

43. Section 852.228-73 is amended by revising the section heading and clause heading to read as follows:

852.228-73

Indemnification of Contractor—Hazardous Research Projects.l

* * * * *

Indemnification of Contractor—Hazardous Research Projects (Mar 2018)

* * * * *

852.237-70

[Removed]

44. Section 852.237-70 is removed.

852.237-7

[Redesignated as 852.237-70 and Amended]

45. Section 852.237-7 is redesignated as section 852.237-70 and the newly redesignated section is revised to read as follows:

852.237-70

Indemnification and Medical Liability Insurance.

As prescribed in 837.403-70(a), insert the following clause:

Indemnification and Medical Liability Insurance (Oct 2019)

(a) It is expressly agreed and understood that this is a non-personal services contract, as defined in Federal Acquisition Regulation (FAR) 37.101, under which the professional services rendered by the Contractor or its health-care providers are rendered in its capacity as an independent contractor. The Government may evaluate the quality of professional and administrative services provided but retains no control over professional aspects of the services rendered including, by example, the Contractor's or its health-care providers' professional medical judgment, diagnosis, or specific medical treatments. The Contractor and its health-care providers shall be liable for their liability-producing acts or omissions. The Contractor shall maintain or require all health-care providers performing under this contract to maintain, during the term of this contract, professional liability insurance issued by a responsible insurance carrier of not less than the following amount(s) per specialty per occurrence: [Contracting Officer's Note: Insert the dollar amount value(s) of standard coverage(s) prevailing within the local community as to the specific medical specialty, or specialties, concerned, or such higher amount as the Contracting Officer deems necessary to protect the Government's interests.] However, if the Contractor is an entity or a subdivision of a State that either provides for self-insurance or limits the liability or the amount of insurance purchased by State entities, then the insurance requirement of this contract shall be fulfilled by incorporating the provisions of the applicable State law.

(b) An apparently successful offeror, upon request of the Contracting Officer, shall, prior to contract award, furnish evidence of the insurability of the offeror and/or of all health-care providers who will perform under this contract. The submission shall provide evidence of insurability concerning the medical liability insurance required by paragraph (a) of this clause or the provisions of State law as to self-insurance, or limitations on liability or insurance.

(c) The Contractor shall, prior to commencement of services under the contract, provide to the Contracting Officer Certificates of Insurance or insurance policies evidencing the required insurance coverage and an endorsement stating that any cancellation or material change adversely affecting the Government's interest shall not be effective until 30 days after the insurer or the Contractor gives written notice to the Contracting Officer. Certificates or policies shall be provided for the Contractor and/or each health-care provider who will perform under this contract.

(d) The Contractor shall notify the Contracting Officer within 5 days of becoming aware of a change in insurance providers during the performance period of this contract for all health-care providers performing under this contract. The notification shall provide evidence that the Contractor and/or health-care providers will meet all the requirements of this clause, including those concerning liability insurance and endorsements. These requirements may be met either under the new policy, or a combination of old and new policies, if applicable.

(e) The Contractor shall insert the substance of this clause, including this paragraph (e), in all subcontracts for health-care services under this contract. The Contractor shall be responsible for compliance by any subcontractor or lower-tier subcontractor with the provisions set forth in paragraph (a) of this clause. At least 5 days before the commencement of work by any subcontractor, the Contractor shall furnish to the Contracting Officer evidence of such insurance.

(End of clause)

46. Section 852.237-71 is added to read as follows:

852.237-71

Nonsmoking Policy for Children's Services.

As prescribed in 837.403-70(b), insert the following clause:

Nonsmoking Policy for Children's Services (Oct 2019)

(a) Smoking in facilities where certain federally funded children's services are provided shall be prohibited. The Pro-Children Act of 2001 (20 U.S.C. 7181-7183) prohibits smoking within any indoor facility (or portion thereof), whether owned, leased, or contracted for, that is used for the routine or regular provision of health or day care services that are provided to children under the age of 18. The statutory prohibition also applies to indoor facilities that are constructed, operated, or maintained with Federal funds.

(b) By acceptance of this contract or order, the Contractor agrees to comply with the requirements of the Act. The Act also applies to all subcontracts awarded under this contract for the specified children's services. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act. Failure to comply with the Act may result in the imposition of a civil monetary penalty in an amount not to exceed $1,000 for each violation and/or the imposition of an administrative compliance order on the responsible entity. Each day a violation continues constitutes a separate violation.

(End of clause)

47. Section 852.237-72 is added to read as follows:

852.237-72

Crime Control Act—Reporting of Child Abuse.

As prescribed in 837.403-70(c), insert the following clause:

Crime Control Act—Reporting of Child Abuse (Oct 2019)

(a) Public Law 101-647, also known as the Crime Control Act of 1990 (Act), imposes responsibilities on certain individuals who, while engaged in a professional capacity or activity, as defined in the Act, on Federal land or in a federally-operated (or contracted) facility, learn of facts that give the individual reason to suspect that a child has suffered an incident of child abuse.

(b) The Contractor shall comply with the requirements of the Act. The Act also applies to all applicable subcontracts awarded under this contract. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act.

(End of clause)

48. Section 852.237-73 is added to read as follows:

852.237-73

Crime Control Act—Requirement for Background Checks.

As prescribed in 837.403-70(d), insert the following clause:

Crime Control Act—Requirement for Background Checks (Oct 2019)

(a) Public Law 101-647, also known as the Crime Control Act of 1990 (Act), requires that all individuals involved with the provision of child care services, as defined in the Act, to children under the age of 18 undergo a criminal background check.

(b) The Contracting Officer will provide the necessary information to the Contractor regarding the process for obtaining the background check. The Contractor may hire a staff person provisionally prior to the completion of a background check, if at all times prior to the receipt of the background check during which children are in the care of the newly-hired person, the person is within the sight and under the supervision of a previously investigated staff person.

(c) The Contractor shall comply with the requirements of the Act. The Act also applies to all applicable subcontracts awarded under the contract. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with the provisions of the Act.

(End of clause)

49. Section 852.237-74 is added to read as follows:

852.237-74

Non-Discrimination in Service Delivery.

As prescribed in 837.110-70(a), the Contracting Officer shall insert the following clause in solicitations and contracts:

Non-Discrimination in Service Delivery (Oct 2019)

It is the policy of the Department of Veterans Affairs that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of VA programs and services based on non-merit factors such as race, color, national origin, religion, sex, gender identity, sexual orientation, or disability (physical or mental). By acceptance of this contract, the Contractor agrees to comply with this policy in supporting the program and in performing the services called for under this contract. The Contractor shall include this clause in all subcontracts awarded under this contract for supporting or performing the specified program and services. Accordingly, the Contractor shall ensure that each of its employees, and any subcontractor staff, is made aware of, understands, and complies with this policy.

(End of clause)

50. Section 852.237-75 is added to read as follows:

852.237-75

Key Personnel.

As prescribed in 837.110-70(b), insert the following clause:

Key Personnel (Oct 2019)

The key personnel specified in this contract are considered to be essential to work performance. At least 30 days prior to the Contractor voluntarily diverting any of the specified individuals to other programs or contracts the Contractor shall notify the Contracting Officer and shall submit a justification for the diversion or replacement and a request to replace the individual. The request must identify the proposed replacement and provide an explanation of how the replacement's skills, experience, and credentials meet or exceed the requirements of the contract. If the employee of the Contractor is terminated for cause or separates from the contractor voluntarily with less than thirty days notice, the Contractor shall provide the maximum notice practicable under the circumstances. The Contractor shall not divert, replace, or announce any such change to key personnel without the written consent of the Contracting Officer. The contract will be modified to add or delete key personnel as necessary to reflect the agreement of the parties.

(End of clause)

51. Section 852.237-76 is added to read as follows:

852.237-76

Award to Single Offeror.

As prescribed in 837.7001(a)(1), insert the following provision:

Award to Single Offeror (Oct 2019)

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

(b) Offerors shall include unit prices for each item. Failure to include unit prices for each item will be cause for rejection of the entire offer.

(c) The Government will evaluate offers on the basis of the estimated quantities shown.

(d) Award will be made to that responsive, responsible offeror whose total aggregate offer is the lowest price to the Government.

(End of provision)

Alternate I (OCT 2019). As prescribed in 837.7001(a)(2), insert the following paragraph (d) in lieu of paragraph (d) of the basic provision:

(d) Award will be made to that responsive, responsible offeror whose total aggregate offer is in the best interest of the Government.

52. Section 852.237-77 is added to read as follows:

852.237-77

Area of Performance.

As prescribed in 837.7001(b)(1), insert the following clause:

Area of Performance (Oct 2019)

(a) The area of performance is as specified in the contract.

(b) The Contractor shall take possession of the remains at the place where they are located, transport them to the Contractor's place of preparation, and later transport them to a place designated by the Contracting Officer.

(c) The Contractor will not be reimbursed for transportation when both the place where the remains were located and the delivery point are within the area of performance.

(d) If remains are located outside the area of performance, the Contracting Officer may place an order with the Contractor under this contract or may obtain the services elsewhere. If the Contracting Officer requires the Contractor to transport the remains into the area of performance, the Contractor shall be paid the amount per mile in the schedule for the number of miles required to transport the remains by a reasonable route from the point where located to the boundary of the area of performance.

(e) The Contracting Officer may require the Contractor to deliver remains to any point within 100 miles of the area of performance. In this case, the Contractor shall be paid the amount per mile in the schedule for the number of miles required to transport the remains by a reasonable route from the boundary of the area of performance to the delivery point.

(End of clause)

53. Section 852.237-78 is added to read as follows:

852.237-78

Performance and Delivery.

As prescribed in 837.7001(b)(2), insert the following clause:

Performance and Delivery (Oct 2019)

(a) The Contractor shall furnish the material ordered and perform the services specified as promptly as possible, but not later than 36 hours after receiving notification to remove the remains, excluding the time necessary for the Government to inspect and check results of preparation.

(b) The Government may, at no additional charge, require the Contractor to hold the remains for an additional period not to exceed 72 hours from the time the remains are casketed and final inspection is completed.

(End of clause)

54. Section 852.237-79 is added to read as follows:

852.237-79

Subcontracting.

As prescribed in 837.7001(b)(3), insert the following clause:

Subcontracting (Oct 2019)

The Contractor shall not subcontract any work under this contract without the Contracting Officer's written approval. This clause does not apply to contracts of employment between the Contractor and its personnel.

(End of clause)

55. Section 852.237-80 is added to read as follows:

852.237-80

Health Department and Transport Permits.

As prescribed in 837.7001(b)(4), insert the following clause:

Health Department and Transport Permits (Oct 2019)

The Contractor shall meet all State and local licensing requirements and obtain and furnish all necessary health department and shipping permits at no additional cost to the Government. The Contractor shall ensure that all necessary health department permits are in order for disposition of the remains.

(End of clause)

56. Section 852.249-70 is added to read as follows:

852.249-70

Termination for Default—Supplement for Mortuary Services.

As prescribed in 849.504-70, insert the following clause:

Termination for Default—Supplement for Mortuary Services (Oct 2019)

The clause entitled “Default” in FAR 52.249-8, is supplemented as follows:

The Contracting Officer may terminate this contract for default by written notice without the ten-day notice required by paragraph (a)(2) of the Default clause if—

(a) The Contractor, through circumstances reasonably within its control or that of its employees, performs any act under or in connection with this contract, or fails in the performance of any service under this contract and the act or failures may reasonably be considered to reflect discredit upon the Department of Veteran Affairs in fulfilling its responsibility for proper care of remains;

(b) The Contractor, or its employees, solicits relatives or friends of the deceased to purchase supplies or services not under this contract. (The Contractor may furnish supplies or arrange for services not under this contract, only if representatives of the deceased voluntarily request, select, and pay for them.);

(c) The services or any part of the services are performed by anyone other than the Contractor or the Contractor's employees without the written authorization of the Contracting Officer;

(d) The Contractor refuses to perform the services required for any particular remains; or

(e) The Contractor mentions or otherwise uses this contract in its advertising in any way.

(End of clause)

852.271-70

[Removed and Reserved]

57. Section 852.271-70 is removed and reserved.

PART 871—LOAN GUARANTY AND VOCATIONAL REHABILITATION AND EMPLOYMENT PROGRAMS

58. The authority citation for part 871 continues to read as follows:

Authority: 40 U.S.C. 121(c); 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301-1.304.

Subpart 871.2—Vocational Rehabilitation and Employment Service

59. Section 871.212 is revised to read as follows:

871.212

Contract clauses.

(a) Contracting officers shall use the following clauses, as appropriate, in solicitations and contracts for vocational rehabilitation and employment services as they pertain to training and rehabilitation services and contracts for counseling services:

(1) 852.271-72, Time Spent by Counselee in Counseling Process.

(2) 852.271-73, Use and Publication of Counseling Results.

(3) 852.271-74, Inspection.

(4) 852.271-75, Extension of Contract Period.

(b) See 837.110-70(a) for clause 852.237-74, Non-Discrimination in Service Delivery.