PART 806-COMPETITION REQUIREMENTS

Subpart 806.3-Other Than Full and Open Competition

Sec.

806.302-3 Industrial mobilization; or experimental development, or research work. 806.302-5 Authorized or required by statute.

806.302-7 Public interest.

806.303 Justifications.

806.303-1 Requirements.

806.304 Approval of the justification.

Subpart 806.4-Sealed Bidding and
Competitive Proposals

806.401 Sealed bidding and competitive proposals.

Subpart 806.5-Competition Advocates

806.501 Requirement.

806.502 Duties and responsibilities. 806.570 Planning and reporting requirements.

AUTHORITY: 38 U.S.C. 210 and 40 U.S.C.

486(c).

SOURCE: 51 FR 23066, June 25, 1986 (interim), and 52 FR 28559, July 31, 1987 (final), unless otherwise noted.

Subpart 806.3-Other Than Full and Open Competition

806.302-3 Industrial mobilization; or experimental, development, or research work.

Research authorized to be conducted by the Department of Veterans Affairs in accordance with the provisions of title 38, U.S. Code, will be negotiated under the authority of 41 U.S.C. 253(c)(3) (except prosthetics research authorized by 38 U.S.C. 4101, will be negotiated under the authority of 41 U.S.C. 253(c)(5), regardless of the dollar amount. Such acquisitions require justifications and approvals required by sections 806.303 and 806.304.

806.302-5 Authorized or required by statute.

(a) Scarce Medical Specialist contracts negotiated under the authority of 38 U.S.C. 4117 are approved for other than full and open competition only when such contracts are with institutions affiliated with the Depart

ment of Veterans Affairs pursuant to 38 U.S.C. 4101. The justification and approval requirements of 806.303 and 806.304 are still applicable.

(b) Sharing contracts negotiated under 38 U.S.C. 5053 are approved for other than full and open competition. The justification and approval requirements of 806.303 and 806.304 are still applicable.

(c) Various other sections of Title 38, United States Code, authorize the Secretary to enter into certain contracts, and certain types of contracts, without regard to any other provision of law. The justification and approval requirements specified in 806.303 and 806.304 are still applicable. VA contracting officers entering into contracts using other than competitive procedures for any of the following items or services, estimated to cost in excess of the small purchase limitation, will cite, in addition to 41 U.S.C. 253(c)(5), the appropriate section of Title 38, United States Code, as their authority to do

So.

(1) Contracts for orthopedic and prosthetic appliances and related services including research. 38 U.S.C. 5023.

(2) Contracts to purchase or sell merchandise, equipment, fixtures, supplies and services for the operation of 38 the Veterans Canteen Service. U.S.C. 4202.

(3) Contracts or leases for the operation of parking facilities established under authority of 38 U.S.C. 5009(b)(2), provides that

(i) The establishment, operation and maintenance of such facilities have been authorized by the Secretary or designee; and

(ii) The facility director determines in writing that operation by contract or lease is both desirable and warranted. 38 U.S.C. 5009(b)(2).

(4) Contracts for laundry and other common services such as the purchase of steam, may be noncompetitively negotiated with non-profit, tax-exempt, educational, medical, or community institutions, when specifically approved by the Secretary or designee and when such services are not reasonably available from private commercial sources. 38 U.S.C. 5022(c).

(5) Contracts or agreements with public or private agencies for services or translators. 38 U.S.C. 213.

(6) Contracts for nursing home care. 38 U.S.C. 620.

[51 FR 23066, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 52 FR 28560, July 31, 1987; 54 FR 40063, Sept. 29, 1989]

806.302-7 Public interest.

Use of 41 U.S.C. 253(c)(7) to support contract award using other than full and open competition will require a D&F prepared in accordance with FAR Subpart 1.7 and VAAR Subpart 801.7 and signed by the Secretary. The D&F will be prepared by the contracting officer and submitted by the head of contracting activity (Subpart 802.1) to the Agency Competition Advocate (806.501). The submission will include:

(a) The date of expected contract award (Note: Congress must be notified 30 days prior to award), and

(b) A justification prepared by the contracting officer in accordance with 806.303.

806.303 Jusifications.

806.303-1 Requirements.

Generally the requester of the goods or services will provide the necessary technical and support data justifying the use of other than full and open competition. Such requester, and as necessary the requester's technical personnel, will certify to the completeness and accuracy of the support data provided.

806.304 Approval of the justification.

(a) Approvals of justifications as specified in FAR 6.304, prepared in accordance with FAR 6.303 and 806.303 will be approved as follows:

(1) For a proposed contract not exceeding $100,000, one contracting level above the contracting officer (see Subpart 801.6). However, if the contracting officer is also the head of the contracting activity approval will be made by:

(i) The medical center director for acquisitions at Veterans Health Services and Research Administration (VHS&RA) medical centers, or

(ii) The Agency Competition Advocate (806.501(a)) in all other cases.

(2) For a proposed contract over $100,000 but not exceeding $1,000,000, by the Contracting Activity Competition Advocate (806.501(b)). However, if the Contracting Activity Competition Advocate is also the contracting officer, approval will be made by:

(i) The medical center director for acquisitions at VHS&RA medical centers, or

(ii) The Agency Competition Advocate in all other cases.

(3) For a proposed contract over $1,000,000 but not exceeding $10,000,000 by the Agency Competition Advocate (806.501(a)).

(4) For a proposed contract over $10,000,000 by the Senior Procurement Executive (See 802.100).

(b) Class justifications as specified in FAR 6.304(c), will be approved by the Agency Competition Advocate regardless of dollar amount.

[51 FR 23066, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 54 FR 40063, Sept. 29, 1989]

Subpart 806.4-Sealed Bidding and Competitive Proposals

806.401 Sealed bidding and competitive proposals.

Contracting officers shall solicit sealed bids if the contract is expected to exceed the small purchase limitation or expected to exceed $1,000 for contracts made for repairs to property acquired by VA under 38 U.S.C. Chapter 37 and the criteria in FAR 6.401(a) are met. The contract file shall include any findings by the contracting officer that sealed bidding is not appropriate.

[51 FR 23066, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 54 FR 40063, Sept. 29, 1989]

Subpart 806.5-Competition Advocates

806.501 Requirement.

(a) The Deputy Director, Acquisition and Materiel Management, is designated as the Agency Competition Advocate.

(b) The Director, VA Marketing Center, or designee, will serve as the Competition Advocate for the Center. Each head of the contracting activity (see Subpart 802.1) or designee will serve as the Contracting Activity Competition Advocate in all other cases.

[51 FR 23066, June 25, 1986, and 52 FR 28559, July 31, 1987, as amended at 54 FR 40063, Sept. 29, 1989]

806.502 Duties and responsibilities.

In addition to the responsibilities identified in FAR 6.502(a), the Agency Competition Advocate will coordinate the competition advocacy program as it is implemented at all VA contracting activities. The Agency Competition Advocate will:

(a) Establish program guidelines to be used by contracting activity competition advocates;

(b) Assist contracting activity competition advocates with obstacles to promoting competition;

(c) Utilize supply technical surveys, other facility reports, and the Federal Procurement Data System to monitor contracting activity compliance with the advocacy program;

(d) Prepare the annual report to Congress required by section 21 of the Office of Federal Procurement Policy Act as amended by the Competition in Contracting Act; and

(e) Consolidate the reporting data required by 806.570.

806.570 Planning and reporting requirements.

(a) General. In order to provide required data to the Senior Procurement Executive and to consolidate the annual report to Congress, each Contracting Activity Competition Advocate must report their respective actions and accomplishments. While the report must include narrative description of the individual competition plans and the obstacles encountered, it is important that the report be quantified to the maximum extent feasible.

(b) Competition Plan. Each Contracting Activity Competition Advocate shall develop an initial Competition Plan for their respective activities by August 15, 1985. The plan should be formally incorporated in the internal operating procedures of the facili

ty or organization in which the contracting activity is located. It is essential that the plan be endorsed and supported by top level management and be clearly understood by the services and offices that the contracting activity support. As a minimum, the plan shall include:

(1) The appoval requirements for other than full and open competition specified in FAR 6.304;

(2) A description of the synopsizing requirements contained in FAR Subpart 5.2 in order that the necessity for Advance Procurement Planning is fully understood;

(3) A description of how the Competition Plan should be integrated into Advance Procurement Planning;

(4) Identification of any known obstacles to competition and a proposal for overcoming them;

(5) A method for otherwise increasing competition for contracts on the basis of cost and other significant factors.

(c) Reporting requirements. (1) Each Competition Advocate will prepare a report on the actions taken to promote competition in the preceding fiscal year. The report will be transmitted to reach the Office of Information Management and Statistics (722) by December 15 of each year. The Office of Information Management and Statistics will compile and provide the entire report to the Agency Competition Advocate. The report will include the following:

(i) The number and dollar value of all contracts proposed to be awarded with other than full and open competition reviewed in accordance with 806.304(a)(1) (less than $100,000).

(ii) The number and dollar value of all contracts less than $100,000 approved for other than full and open

competition in accordance with

806.304(a)(1).

(iii) The number and dollar value of proposed contracts to be awarded with other than full and open competition reviewed by the Contracting Activity Competition Advocate (contracts between $100,000 and $1,000,000,

806.304(a)(2)).

(iv) The number and dollar value of approved contracts to be awarded with other than full and open competition

which were approved by the Contracting Activity Competition Advocate.

(v) Narrative description, and where possible statistics, describing the success in promoting full and open competition.

(vi) Identification of barriers to full and open competition and plans for overcoming those barriers, for the current fiscal year.

(2) By January 15 of each year the Agency Competition Advocate will prepare the annual report to Congress, based primarily upon the summary of individual competition advocate reports. The Congressional report will include, as a minimum:

(i) A specific description of all actions that the VA intends to take during the current fiscal year to increase competition and reduce the number and dollar value of noncompetitive contracts.

(ii) A summary of the activities and accomplishments of the agency competition advocates during the previous fiscal year. The Congressional report will be submitted for the signature of the Secretary through the Senior Procurement Executive.

(3) Annual Report on Competition, Reports Control Symbol 90-0658 has been established for this report.

(a) Pursuant to 38 U.S.C. 5010(c)(2), all A-76 cost comparisons of commercial and/or industrial activities performed by the VA Veterans Health Services and Research Administration (VHS&RA) at VA medical facilities will be based upon comparative cost of the first five years of contract performance. Consequently, such cost comparisons will specify contractual commitments for one year plus four oneyear renewal options (see FAR 17.2). (Other VA administrations and staff offices may use contractual commitments for a minimum of one year with two one-year renewal options or a maximum of one year with four oneyear renewal options.) Furthermore, 38 U.S.C. 5010(c)(4) prescribes a cost comparison methodology which differs from that contained in OMB Circular A-76. In order that bidders/offerors are made aware of the cost comparison methodology which will be applied, the provision in 852.207-72, Cost Comparison Criteria-VA Medical Facilities, will be included in solicitations for cost comparisons of VA VHS&RA activities which are currently performed at VA medical facilities by VA employees.

[53 FR 43210, Oct. 26, 1988, as amended at 54 FR 40063, Sept. 28, 1989]

807.304 Procedures.

807.304-72 Requirement for second commercial sources for A-76 solicitations. (a) Pub. L. 100-322 established a requirement that for A-76 cost comparisons conducted at health-care facilities, a contract can only be awarded if the A-76 solicitation results in responsive bids/offers from at least "two responsible, financially autonomous bidders (offerors)." Consequently, A-76 solicitations for functions at VA

health-care facilities will contain the provision specified in 852.207-71.

(b) The general policy of VA, except as identified in paragraph (a) of this section, is to proceed with A-76 cost comparison if one or more responsive and responsible bidder/offerors respond to an A-76 solicitation. However, if justified and approved in accordance with this section, an A-76 solicitation may require that two responsive and responsible bidders/offerors respond to the solicitation and will use the appropriate provision specified in 852.207-71. If the requirement for two bidders is approved and used, the cost comparison process will be terminated and the solicitation cancelled unless two bids/offers are received.

(c) The justification for use of a second commercial source requirement shall address each of the following criteria:

(1) Criticality of the activity under study to the mission of the facility and the degree of adverse impact on facility from disruption in services.

(2) Amount of resources needed (facility and capital investment, time frame, and costs attributed to obtaining adequate staff) to convert the service back to in-house operation.

(3) The availability and feasibility of obtaining the service from other VA facilities or other Government facilities.

(4) Evaluation of anticipated bidder's/offeror's essential qualification characteristics.

(5) Availability of other commercial sources in close geographic proximity to the facility.

(d) Requests to use the provisions specified in 852.207-71 will be prepared by the director (or head of the requesting element for activities consisting of less than 10 FTEE) of the facility in which the commercial activity presently exists. The request will, at a minimum, address the criteria in paragraph (b) of this section and will be forwarded for approval as follows:

(1) For A-76 solicitations comparing in-house activities consisting of less than 10 FTEE, approval is delegated to the facility director.

(2) For A-76 solicitations comparing in-house activities consisting of 10 FTEE or more, approval will be made

by the respective administration head or staff office director, or their desig

nee.

(e) A copy of each approval granted pursuant to paragraphs (c) and (d) of this section will be forwarded to Director, Office of Program Analysis and Evaluation (07), through the respective adminisration head or staff office director, within five working days of such approval.

[53 FR 43210, Oct. 26, 1988, as amended at 54 FR 40063, Sept. 29, 1989]

807.304-73 Bid opening/receipt of proposals.

The date established for bid opening or receipt of proposals will normally be 90 days after sending the request for publication to the Commerce Business Daily (CBD) (65 days after issuing the solicitation).

807.304-75 Bid acceptance.

Bid acceptance shall be 90 days from bid opening/receipt of proposals in order to accommodate the time necessary to evaluate bids/offers, finalize the cost comparison and process any appeals. Contracting officers will insert "90 days” in FAR clause 52.21415.

807.304-76 Contract effective date.

(a) A transition from in-house performance to contract requires a period of time from contract award to beginning of contract performance (contract effective date). This time is necessary to allow for personnel adjustments, e.g., right of first refusal process, and to allow a reasonable period for the contractor to make necessary resource reallocations. The contract effective date should be carefully considered in conjunction with the A-76 Task Group and must be specified in the solicitation.

(b) Although outplacement planning to minimize the effect of any necessary reduction in force should be initiated in advace of bid opening/receipt of proposals as prescribed by Office of Personnel and Labor Relations, there are also employee and labor organization reduction-in-force notice requirements which must be satisfied.