Subpart 801.1-Purpose, Authority, Issuance

801.101 Purpose.

(a) This subpart establishes Chapter 8, Veterans Affairs Acquisition Regulations, of Title 48-Federal Acquisition Regulation System, Code of Federal Regulations.

(b) The VAAR must be utilized in conjunction with the FAR. The VAAR cannot be utilized by itself.

801.102 Authority.

The VAAR and any amendments thereto are issued by the Secretary of Veterans Affairs as provided by 38 U.S.C. 210 and the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 486(c)).

[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31961, Aug. 3, 1989]

801.103 Applicability.

(a) The FAR and the VAAR apply to all acquisitions of the Department (including construction) made with appropriated funds and procurements made with Supply Fund monies (38 U.S.C. 5021).

(b) The FAR and VAAR will apply to the special procurement programs authorized by Title 38 U.S. Code (Viz., Veterans Canteen Service and the Loan Guaranty programs), to the extent indicated in the VAAR.

[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 40062, Sept. 29, 1989]

801.103-70 Exclusions.

The FAR and VAAR will not apply to purchases and contracts which utilize General Post Funds when such regulations would infringe upon a donor's prerogative to specify the exact item to be purchased and/or the source of supply.

801.104 Issuance.

801.104-1 Publication and code arrangement.

(a) Department of Veterans Affairs (VA) acquisition policies and procedures which directly affect the public will be published in the FEDERAL REGISTER as Chapter 8 of Title 48 CFR. Related material, not affecting the

suances will be the minimum necessary to provide a logical implementation of FAR and VAAR requirements and will be internal to the facility, i.e., it will not specify reporting/recordkeeping requirements for the public (see 801.301-70(b)).

(c) As required by the Small Business and Federal Procurement Competition Enhancement Act (Pub. L. 98577), any acquisition policy, form or procedure must be published in the FEDERAL REGISTER for public comment if it has:

(1) A significant effect beyond the internal procedures of the agency issuing the procurement policy, regulation, procedure or form, or

(2) A significant cost or administrative impact on contractors or offers. Any facility or Central Office element having or proposing to issue a policy, form or procedure requiring public comment shall arrange for the necessary FEDERAL REGISTER publication through the Deputy Assistant Secretary for Acquisition and Materiel Management (93).

[49 FR 12583, Mar. 29, 1984, as amended at 52 FF 28559, July 31, 1987; 54 FR 31962, Aug. 3, 1989]

801.301-70 Paperwork Reduction Act requirements.

(a) It is the policy of the Government to keep to the minimum the amount of recordkeeping and reporting required of the public. This objective applies to the Department of Veterans Affairs acquisition system.

(b)(1) Contractors will not be requested to maintain systems of records unless prescribed in FAR or this VAAR. A deviation to this prohibition may be processed in accordance with 801.403 in order to allow the contracting officer to require contractor reporting or recordkeeping beyond that prescribed in FAR and VAAR. The request for deviation will clearly specify what information or recordkeeping will be required and why it is required. The request will be signed by the head of the contracting activity.

(2) The Deputy Assistant Secretary for Acquisition and Materiel Management (93) will review the request and upon concurrence will likewise submit the request to Office of Management

Subpart 801.4-Deviations From the FAR or VAAR

801.403 Individual deviations.

(a) When contracting officers consider it necessary to deviate from the policies set forth in the FAR or VAAR, a request for authority to do so will be submitted to the Deputy Assistant Secretary for Acquisition and Materiel Management (93). The request will clearly set forth the circumstances warranting the deviation and nature of the deviation.

(b) When a deviation in an individual case is authorized by the Deputy Assistant Secretary for Acquisition and Materiel Management, the authorization will be filed in the purchase or contract file, whichever is appropriate. The Deputy Assistant Secretary for Acquisition and Materiel Management will review each deviation authorized and when considered necessary either prepare a change to the VAAR or recommend a change to the FAR through the CAA Council. [54 FR 31962, Aug. 3, 1989]

801.404 Class deviations.

The Deputy Assistant Secretary for Acquisition and Materiel Management is responsible for determining the need for class deviations. If determined necessary, the Deputy Assistant Secretary for Acquisition and Materiel Management will request deviation authority from the Deputy Secretary through the Senior Procurement Executive as well as complying with the provisions in FAR 1.404.4

[49 FR 12583, Mar. 29, 1984, as amended at 52 FR 49016, Dec. 29, 1987; 54 FR 31962, Aug. 3, 1989]

801.470 Rulemaking.

(a) VAAR amendments which implement FAR requirements, Office of Federal Procurement Policy (OFPP) directives and legislation or are related to Department management or personnel, will be issued as "Final Rules" in the FEDERAL REGISTER as provided in the Administrative Procedures Act, 5 U.S.C. 553.

(b) VAAR amendments which significantly affect the public and for which the Department of Veterans Af

fairs has discretion (as opposed to amendments required by FAR, OFPP or legislation) will be developed in accordance with the proposed rulemaking procedures of the Administrative Procedures Act. This procedure generally involves issuing a notice of proposed rulemaking in the FEDERAL REGISTER inviting public comment. Any comments received will be reviewed and when appropriate will be incorporated in the final rule. The final rule will also be published in the FEDERAL REGISTER and will include a discussion of the comments received and their disposition.

[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31962, Aug. 3, 1989; 54 FR 40062, Sept. 29, 1989]

(a) This subpart establishes general contracting officer authority and responsibility. However, other provisions in both the FAR and the VAAR contain some contracting officer limitations and it is incumbent upon each contracting officer to be aware of those limitations.

(b) Personnel, other than those designated in 801.602, may determine quality, quantity and delivery requirements for items or services to be purchased. However, under no circumstances will individuals who have not been delegated contracting authority commit the Government for purchases of supplies, equipment or services. Individuals making such commitments may be held financially liable for the amount of the obligation.

801.602 Contracting officers.

(a) Except as otherwise provided by law, VA regulations, VAAR and FAR, the authority vested in the Secretary to execute, award, and administer contracts, purchase orders, and other agreements (including interagency agreements) for the expenditure of funds involved in the acquisition of personal property, services (including architect-engineer services), construction, issuing Government bills of lading, and for the sale of personal

property, is hereby delegated to the Senior Procurement Executive. The Senior Procurement Executive further delegates the authority to the Deputy Assistant Secretary for Acquisition and Materiel Management.

(b) Further delegation of this authority will be made in accordance with the Contracting Officer Certification Program as prescribed in VAAR 801.690 and as otherwise provided in VAAR 801.670 and its subsections.

(c) The employee appointed as contracting officer will function within the limits prescribed by law, VA regulations, VAAR and FAR.

[52 FR 24010, June 26, 1987, as amended at 54 FR 31962, Aug. 3, 1989]

801.602-2 Responsibilities.

(a) In the administration of a contract, many problems can and do arise that make the advice and assistance of the General Counsel either desirable or necessary. The final decision as to the action to be taken, however, must be made by the contracting officer in each instance. To reduce to the absolute minimum the possibility of litigation resulting from his/her decision, the contracting officer shall, except as provided in paragraph (c) of this section, submit the problem through channels in sufficient detail to the General Counsel for advice or assistance.

(b) While legal review and concurrence of the General Counsel is required prior to a default termination, in some cases where a quick response is necessary, this review can be expedited by express mailing or telefaxing the default letter and related documents which are required to make an evaluation directly to the General Counsel (025). The default termination letter should contain, at a minimum, the following:

(1) The proposed termination (FAR 49.102);

(2) An explanation of what necessitated the default, including the reasons why the contracting officer considers the contractor to be in default;

(3) A statement that the factors set forth in FAR 49.402-3(f) have been fully considered; and

(4) Final decision language and appeal rights.

(c) Contracts containing a mutual termination clause may be terminated without reference to the General Counsel.

[49 FR 12583, Mar. 29, 1984, as amended at 54 FR 31962, Aug. 3, 1989]

801.602-3 Ratification of unauthorized

commitments.

(a) Contracting officers shall not ratify contractual commitments made by other VA personnel without prior approval as prescribed below. Such unauthorized commitments include commitments made by other contracting officers which exceed their respective contracting authority as well as unauthorized commitments made by individuals lacking contracting authority.

(1) At field stations, for supplies, services and construction, the approving authority is the director of the field facility concerned.

(2) For central office contracting officers, for supplies, and services and construction, the approving authorities are the heads of the administrations and directors of the staff offices concerned, and the Deputy Assistant Secretary for Acquisition and Materiel Management.

(3) For acquisitions of leasehold interest in real property the approving authority is:

(i) The Deputy Assistant Secretary for Facilities, for 1-5,000 square feet, and for 1-100 parking spaces costing less than $50,000 per annum.

(ii) The Assistant Secretary for Acquisition and Facilities for 5,00120,000 square feet, and for parking spaces exceeding 100 which cost less than $100,000 per annum.

(iii) The Deputy Secretary for 20,001 square feet and above, and for parking spaces exceeding 100 which cost more than $100,000 per annum.

(4) This approval authority shall not be redelegated.

(b) Requests received by contracting officers for ratification of commitments made by personnel lacking contracting authority shall be processed as follows:

(1) The individual who made the unauthorized contractual commitment shall furnish the contracting officer all records and documents concerning

30-185 0-90- -6

the commitment and a complete written statement of facts, including, but not limited to, a statement as to why the procurement office was not utilized, why the proposed contractor was selected and a list of other sources considered, description of work to be performed or products to be furnished, estimated or agreed contract price, citation of appropriation available, and a statement of whether the contractor has commenced performance.

(2) The contracting officer will review the file and forward it to the approving authority specified in paragraph (a) of this section with any comments or information which should be considered in evaluation of the request for ratification. If legal review is desirable, the approving authority will coordinate the request for ratification with the Office of General Counsel or the District Counsel, as appropriate.

(3) If ratification is authorized, the file will be returned to the contracting officer for issuance of a purchase order or contract, as appropriate.

(c) In the case of otherwise proper contract awards made by contracting officers in excess of the limits of their delegated authority, the need for ratification will be brought to the attention of the head of the contracting activity. That individual will take such action as may be indicated to preclude future instances of such awards.

[54 FR 31962, Aug. 3, 1989]

801.602-70 Legal/technical review requirements to be met prior to contract execution.

(a) The following categories of proposed contracts and agreements will be reviewed and concurred in by the Office of Acquisition and Materiel Management prior to contract execution. (Additionally, the Office of Acquisition and Materiel Management may, when considered necessary, request preaward technical review regardless of dollar value). Office of General Counsel legal reviews of such proposed contracts and agreements will be performed when requested and determined necessary by the Office of Acquisition and Materiel Management. (Excluded from this requirement is the Marketing Center which will perform its own technical reviews

at the thresholds herein prescribed. The Marketing Center will receive preaward legal review of solicitation from the General Counsel staff located in Hines, Illionis).

(1) All negotiated and sealed bid contracts (except as specified in (a)(2) and (a)(3)) exceeding $250,000 in either appropriated or nonappropriated funds. This includes indefinite quantity contracts when expenditures of $250,000 or more can reasonably be expected, and multiyear contracts in which $250,000 or more will be expended over the life of the contract. (Note also that multiyear contracts also require review any time the cancellation ceiling exceeds 20 percent of the contract amount (see 817.1)).

(2) All fixed price, sealed bid construction contracts involving $500,000 or more in either appropriated or unappropriated funds.

(3) All 8(a) contracts exceeding $500,000.

(4) All proposed agreements and contracts coming within the purview of one or more of the following:

(i) Contracts for insurance.

(ii) Utility service agreements involving $50,000 or more.

(iii) Contracts for consulting services (see Subpart 837.2) and management and professional services (see 837.271).

(iv) Contracts for research or research and development involving $50,000 or more.

(v) Automatic data processing equipment, when purchased from other than a Federal Supply Service contract, involving $50,000 or more.

(vi) Competitive contracts exceeding $50,000 and noncompetitive contracts exceeding $200,000, for scarce medical specialist services.

(vii) Competitive contracts exceeding $50,000 and noncompetitive contracts exceeding $200,000 for the mutual use, or exchange of use, of specialized medical resources.

(viii) Agreements with other Federal agencies involving the expenditures of Department of Veterans Affairs funds of $5,000 or more.

(ix) Contracts for ADP software exceeding $10,000.

(x) ADP software licensing agreements for ADP software exceeding