Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH
DATE: June 7, 2001
SUBJECT: Veterans Affairs Acquisition Regulation (VAAR); Simplified Acquisition Procedures for Health-Care Resources
SOURCE: Federal Register, June 7, 2001, Vol. 66, No. 110, page 30659
AGENCIES: Department of Veterans Affairs (VA)
ACTION: Proposed Rule
SYNOPSIS: VA is proposing to add VA Part 873, Simplified Acquisition Procedures for Health-Care Resources, to implement the Veterans' Health Care Eligibility Reform Act of 1996 (Public Law 104-262), which authorizes VA to adopt simplified acquisition procedures for health-care resources consisting of commercial services or the use of medical equipment or space.
EDITOR'S NOTE: The VAAR is Chapter 8 of Title 48 of the Code of Federal Regulations. It is available on the Internet at http://www.va.gov/oa&mm/vaar/.
DATES: Comments on this proposed rule should be submitted on or before August 6, 2001.
ADDRESSES: Send written comments to Director, Office of Regulations Management (02D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Room 1154, Washington, DC 20420; fax: 202-273-9289; e-mail: OGCRegulations@mail.va.gov. Comments should indicate that they are submitted in response to "RIN 2900-AI71."
FOR FURTHER INFORMATION CONTACT: Dennis Foley, Office of the General Counsel, Professional Staff Group V, 202-273-9225; or Don Kaliher, Acquisition Resources Service, Office of Acquisition and Materiel Management, 202-273-8819.
SUPPLEMENTAL INFORMATION: Public Law 104-262 specifically authorizes VA to establish simplified procedures for the competitive procurement of health-care resources. Procurements under the simplified procedures may be conducted "without regard to any law or regulation that would otherwise require the use of competitive procedures." Therefore, the competitive procedures of any laws and regulations (including the FAR and VAAR and their underlying laws, such as the Competition in Contracting Act) would be superseded by the simplified procedures.
However, the simplified procedures are required to "permit all responsible sources, as appropriate, to submit a bid, proposal, or quotation (as appropriate) for the resources to be procured and provide for the consideration by the Department of bids, proposals, or quotations so submitted." VA interprets this provision as allowing VA "to limit competition to the extent it determines reasonable for the circumstances of each particular acquisition."
VA is proposing to establish a new VAAR Part 873 to implement its interpretation of the provisions of Public Law 104-262. Since the proposed simplified procedures in Part 873 would apply only to acquisitions for health-care resources, it will apply only to the Veterans Health Administration (VHA), one of the three administrations that comprise VA.
VA had published a proposed implementation on November 9, 1998, but it is withdrawing that proposed rule and publishing this replacement proposed rule because comments (particularly by the Small Business Administration (SBA)) convinced it "that a revised proposed rule is necessary to more fully address the potential impact of the proposed rule on small business."
The following are the key provisions of the proposed VAAR Part 873:
- VAAR 873.101, Policy, would state that the VAAR Part 873 provisions would be used in conjunction with FAR, but that VAAR Part 873 would take precedence over FAR and other parts of VAAR.
- VAAR 873.104, Competition Requirements, would require the contracting officer to "seek competition to the maximum extent practicable." (EDITOR'S NOTE: This language is similar to that in FAR Part 13, Simplified Acquisition Procedures, but the pilot program in FAR Subpart 13.5, Test Program for Certain Commercial Items, which permits the use of simplified procedures to acquire commercial items up to $5 million to expire on January 1, 2002, unless extended by Congress. If FAR Subpart 13.5 expires, the FAR threshold for using full and open competition will revert to $100,000. This is the reason VA decided to add this language and not rely on the current FAR Subpart 13.5.)
- VAAR 873.107, Socioeconomic Programs, would permit the head of the contracting activity (HCA) to waive the requirement to set aside an acquisition for small businesses if there is reasonable expectation that reasonably priced bids, proposals, or quotations will be received from two or more responsible small businesses. The HCA must determine that the waiver is in the best interest of the government. However, "the procedures of FAR 19.8 [Contracting with the Small Business Administration (the 8(a) Program)] shall be followed where a responsible 8(a) contractor has been identified," and the certificate of competency procedures in FAR Subpart 19.6, Certificates of Competency and Determinations of Responsibility, are to be followed.
- VAAR 873.108, Publicizing Contract Actions, would require that acquisitions exceeding the $100,000 simplified acquisition threshold be publicly announced "utilizing a medium designed to obtain competition to the maximum extent practicable...The publication medium may include the Internet, including the Governmentwide point of entry (GPE), and local, regional or national publications or journals, as appropriate, at the discretion of the contracting officer, depending on the complexity of the acquisition." (EDITOR'S NOTE: Federal Acquisition Circular (FAC) 97-26 established "FedBizOpps" (http://www.FedBizOpps.gov) as the GPE. Acquisitions over $25,000 that are governed by the FAR (with a few exceptions) must be synopsized in the GPE as of October 1, 2001. See the May 16, 2001, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Circular (FAC) 97-26, Miscellaneous Amendments.")
- VAAR 873.109, General Requirements for Acquisition of Health-Care Resources, would permit late offers and late quotations to be considered if in the best interest of the government. Also, VAAR provision 852.273-70, Late Offers, would be added to reflect this.
- VAAR 873.111, Acquisition Strategies for Health-Care Resources, would permit the use of simplified acquisition procedures similar to those in FAR Part 13 regardless of the value of the acquisition. In addition, it would permit contracting officers to use alternative negotiating techniques, including but not limited to:
- Indicating to offerors a price, contract term or condition, commercially available feature, and/or requirement (beyond any requirement or target specified in the solicitation) that offerors will have to improve upon or meet, as appropriate, in order to remain competitive; and
- Posting offered prices electronically or otherwise (without disclosing the identity of the offerors) and permitting revisions of offers based on this information.
VAAR provision 852.273-71, Alternative Negotiation Techniques, would be added to reflect this, and VAAR provision 852.273-72, Alternative Evaluation, would explain how prices would be posted, provide guidance on submitting offers, and advise offerors how options would be evaluated.
- VAAR 873.113, Exchanges with Offerors, would permit the contracting officer to conduct exchanges with industry throughout the acquisition process. "The nature and extent of exchanges between the government and offerors is a matter of contracting officer judgment. Clarifications, communications, and discussions, as provided for in the FAR, are concepts not applicable to acquisitions under this Part 873." In addition, exchanges need not be conducted with all offerors. VAAR provision 852.273-74, Award Without Exchanges, would reflect this.
- VAAR 873.115, Proposal Revisions, would permit the contracting officer to request proposal revisions as often as needed during the proposal evaluation process.
In addition to the proposed provisions mentioned above, VAAR provision 852.273-73, Evaluation -- Health-Care Resources, would be added. It would permit the contracting officer to provide "evaluation information" instead of evaluation factors. Also, the contracting officer would not be required to state how the evaluation information is weighted, but he or she would be required to state the relative importance of the evaluation information.
FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.
Copyright 2001 by Panoptic Enterprises. All Rights Reserved.
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