(5) The contractor's purchase order number, if known, and the delivery time requirement as stated in the invitation or proposal.

(6) The additional time the contractor claims will be necessary to effect delivery if he cannot get priority assistance.

(7) The extent of the emergency that will be generated at the station, e.g., (1) damage to the physical plant, (ii) impairment of the patient care program, (iii) creation of safety hazards and (iv) any other pertinent condition that will result because of failure to secure assistance in obtaining the critical materials.

(8) The item(s) required is for use in a construction contract which was authorized by the Assistant Administrator for Construction to be awarded and administered by the station contracting offi

cer.

[32 F.R. 7267, May 16, 1967, as amended at 33 F.R. 10931, Aug. 1, 1968]

§ 8-1.315 Use of liquidated damages provisions in procurement contracts. [34 F.R. 2309, Feb. 18, 1969] § 8-1.315-2 Policy.

Liquidated damages provisions will not be routinely included in supply or construction contracts, regardless of dollar amount. The decision to include liquidated damages provisions will conform to the criteria in FPR 1-1.315-2. In making this decision, consideration will be given as to whether the necessity for delivery or performance as stated in the contract schedule is so imperative that a probable increase in contract cost is justified. Liquidated damages provisions will not be included as insurance against selection of a nonresponsible bidder, as a substitute for efficient contract administration, nor as a penalty for failure to perform on time.

[34 F.R. 2309, Feb. 18, 1969]

§ 8-1.315-3 Contract provisions.

(a) Contracts for equipment, supplies, or services (other than construction). When a decision has been made to include liquidated damages provisions, the following clause will be inserted immediately following the clause required by FPR 1-1.315-3:

RATE OF LIQUIDATED DAMAGES

In the case of failure on the part of the Contractor to complete delivery or performance within the time fixed in the contract or any extension thereof, the Contractor will pay to the Government as liquidated dam

(b) Contracts for construction. The clause contained in FPR 1-18.110 (a) will be used when liquidated damages provisions are included in the invitation for bids.

(c) Partial performance and acceptance. When partial performance may be accepted and utilized to the advantage of the Government, a provision, substantially as follows, will be included in the invitation for bids:

If any unit of the work contracted for is accepted in advance of the whole, the rate of liquidated damages assessed will be in the ratio that the value of the unaccepted work bears to the total amount of the contract. If a separate price for unaccepted work has not been stated in the contractor's bid, determination of the value thereof will be made from a schedule of cost furnished by the Contractor and approved by the Contracting Officer, or as otherwise stated in the contract.

[34 F.R. 2309, Feb. 18, 1969]

§ 8-1.316 Time of delivery or performance.

[28 F.R. 2329, Mar. 12, 1963]

§ 8-1.316-5 Time of delivery clauses.

When delivery is required by or on a particular date, the following clause will be included in the appropriate time of delivery clause in FPR 1-1.316:

The delivery dates specified are the dates material is to be delivered to the ordering office-not the shipping dates.

[28 F.R. 2329, Mar. 12, 1963]

§ 8-1.317 Noncollusive bids and proposals.

(a) The head of a field station, Manager, Veterans Administration Supply Depot, and the Manager, Veterans Administration Marketing Center, Hines, Ill., are authorized to make the determinations set forth in paragraph (d) of the certification required by FPR 1-1.317(a).

(b) The Assistant Administrator for Construction, Manager, Administrative Services and the Director, Supply Service are authorized to make these determinations for the Central Office purchasing activities under their respective jurisdictions.

[32 F.R. 3772, Mar. 7, 1967, as amended at 35 F.R. 15756, Oct. 7, 1970]

1 Insert the daily rate of liquidated damages.

§ 8-1.318-1 Contracting officer's final decision under a Disputes clause.

(a) When a dispute cannot be settled by agreement and a final decision under the Disputes clause of the contract is necessary, the contracting officer shall furnish the contractor his final decision in the matter.

(b) The decision must be identified as a final decision, be in writing, and include a statement of facts in sufficient detail to enable the contractor to fully understand the decision and the basis on which it was made. It will normally be in the form of a statement of the claim or other description of the dispute with necessary references to the pertinent contract provisions. It will set forth those facts relevant to the dispute, with which the contractor and the contracting officer are in agreement and, as clearly as possible, the area of disagreement.

(c) The decision shall, in addition to the material required by FPR 1-1.318--1 (a), contain the following:

The Veterans Administration Contract Appeals Board (VACAB) is the authorized representative of the Administrator for hearing and determining such disputes. The rules of the VACAB are published in § 1.774, Title 38, Code of Federal Regulations.

(d) The contracting officer's final decision will be forwarded to the contractor by certified mail, return receipt requested.

[34 F.R. 852, Jan. 18, 1969]

use a product or service that is obtainable from a private source.

(b) "Private commercial source" is a private business concern which provides a commercial or industrial product or service required by the Government and which is located in the United States, its territories and possessions, the District of Columbia, or the Commonwealth of Puerto Rico.

(c) "New start" is a newly established Government commercial or industrial activity involving additional capital investment of $25,000 or more or additional annual costs of production of $50,000 or more. A reactivation, expansion, modernization or replacement of an activity involving additional capital investment of $50,000 or more or additional annual costs of production of $100,000 or more is, for the purpose of this § 8-1.350, also regarded as a "new start". Consolidation of two or more activities without increasing the overall total amount of products or services provided is not a "new start".

[33 F.R. 8486, June 8, 1968]

§ 8-1.350-3 Circumstances permitting use of a Government commercial or industrial activity.

A Government commercial or industrial activity may be authorized only when a determination has been made that one or more of the following conditions apply:

(a) Procurement of a product or service from a commercial source would disrupt or materially delay the Veterans Administration's program.

(b) A satisfactory commercial source is not available and cannot be developed in time to provide a product or service when it is needed.

(c) The product or service is available from another Federal agency.

(d) Procurement of the product or service from a commercial source will result in higher cost to the Government. [33 F.R. 8486, June 8, 1968]

industrial activities having an annual output of $50,000 or more or a capital investment of $25,000 or more will be accomplished by the Chief Medical Director to ascertain whether continued operation of Government commercial activities is justified. A report of each review will be prepared and a decision to continue an activity will be approved by the Administrator or his designee. Activities not so approved will be discontinued.

(b) Requests for approval of a new start will be submitted through channels to the appropriate department head. The submission will include a complete justification in which one or more of the conditions permitting the use of a Government commercial or industrial activity is applicable. If the request is based on cost comparison, the comparative cost analysis required by Bureau of the Budget Circular A-76, revised, will be submitted as part of the justification. The department head will review the request and submit it with recommendations to the Administrator for a determination. Approved requests will be returned to the station by the department head and a copy forwarded to the Controller.

(c) Requirements for commercial or industrial products or services involving a cost of less than $50,000 annually and an additional capital investment of less than $25,000 should be procured from private commercial sources. No cost comparison need be made unless there is reason to believe commercial prices are unreasonable. When it is considered to be to the advantage of the Government and the use of a Government commercial or industrial activity can be justified under one or more of the conditions cited in § 8-1.350-3, the services or products may be provided by the station or procured from another Government commercial or industrial activity.

(d) In no instance will contracts be entered into solely in order to reduce or hold down Veterans Administration employment.

[33 F.R. 8486, June 8, 1968]

Subpart 8-1.4-Procurement Responsibility and Authority

§ 8-1.402 Authority of contracting offi

cers.

(a) Contracting officers are designated in Subparts 8-75.1 and 8-75.2,

(b) Personnel, other than those designated in Subparts 8-75.1 and 8-75.2, 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. [34 F.R. 2309, Feb. 18, 1969]

Subpart 8-1.5-Contingent Fees

SOURCE: The provisions of this Subpart 81.5 appear at 28 F.R. 2329, Mar. 12, 1963, unless otherwise noted.

§ 8-1.508

§ 8-1.508-1

Enforcement.

Failure or refusal to furnish representation and agreement.

In all cases of negotiated procurement where the SF 119 is required, the contracting officer will determine whether negotiations will be suspended pending receipt of the executed SF 119.

§ 8-1.508-2 Failure or refusal to furnish Standard Form 119.

The contracting officer will make the determinations required by FPR 11.508-2 (a) and (b).

§ 8-1.508-3 Misrepresentations or violations of the covenant against contingent fees.

(a) The determinations required by FPR 1-1.508-3 (a), (b), and (c) will be made by the Contracting Officer after he has presented the facts to and consulted with the Chief Attorney of the VA installation within whose jurisdiction the misrepresentation or violation has occurred. Contracting Officers in Central Office will consult with the Office of the General Counsel.

(b) The determination required by FPR 1-1.508-3(d) will be made by the Office of the General Counsel. Subpart 8-1.6-Debarred, Suspended, and Ineligible Bidders

§ 8-1.600 Scope of subpart.

This subpart prescribes procedures for debarring or suspending bidders and the establishment, use and maintenance of the Veterans Administration debarred, suspended, or ineligible bidders list. [30 F.R. 4673, Apr. 10, 1965]

§ 8-1.602 Establishment and maintenance of a list of concerns or individuals debarred, suspended or declared ineligible.

The Director, Supply Service, is the debarring official for the Veterans Administration. The names of firms or individuals debarred will be included in an administrative issue entitled, "Debarred, Suspended, and Ineligible Bidders List," which will be maintained by the Director, Supply Service (134G). This list marked "for official use only" will be made available only to those Veterans Administration employees who require this information in the performance of their official duties.

[31 F.R. 12717, Sept. 29, 1966]

§ 8-1.602-1 Bases for entry on the debarred, suspended, and ineligible list. (a) The Director, Supply Service, may include on the debarred, suspended, or ineligible list those firms and individuals administratively debarred by another executive agency for the causes set forth in FPR 1-1.604(a) (1), (2), and (3) (i) and (iii) when it is known, or it is likely, that the firms or individuals will bid on Veterans Administration requirements.

(b) Any Contracting Officer having knowledge of a firm or individual(s) debarred by another agency may recommend that the firm or individual(s) be included on the Veterans Administration Debarred, Suspended and Ineligible List. Such recommendations will be supported by documentary evidence, other than the fact that the firm or individual(s) are included on another agency's list, to support their recommendations.

(c) Any contractor convicted of a criminal offense in connection with obtaining a Government contract, or in the performance of such contract, shall be debarred by the Veterans Administration and his name shall be entered on the debarred list. The General Counsel, upon receipt of a notice of conviction, shall transmit such information to the Director, Supply Service (134G) for necessary action.

[30 F.R. 4673, Apr. 10, 1965, as amended at 31 F.R. 12718, Sept. 29, 1966]

§ 8-1.603 Treatment to be accorded firms or individuals in debarred, suspended, or ineligible status.

(a) The Director, Supply Service, may authorize procurement from a firm or individual debarred or suspended by the Veterans Administration when requested

by a Contracting Officer and when considered essential in the public interest.

(b) Contracting Officers may, at their discretion, solicit bids or proposals from and award contracts to firms or individuals the otherwise ineligible under Walsh-Healey Act, as provided in FPR 1-1.603(d).

[30 F.R. 4673, Apr. 10, 1965, as amended at 31 F.R. 12718, Sept. 29, 1966] § 8-1.604-1 Procedural

requirements relating to the imposition of debar

ment.

(a) General. The reply to the notification of a proposed debarment as required by FPR 1-1.604-1(a) will determine the action to be taken by the debarring official.

(1) No reply received. When no reply is received from the firm or individual(s) to the notification of intent to debar within the time limit stated in the notification, the case will be decided on the information available.

(2) Reply received. Where written information is received, but no hearing requested, such information will be taken into consideration in the final determination of the case.

(3) Reply received and hearing requested. When a hearing is requested, it shall be conducted by the Director, Supply Service, or a person designated by him. Hearings will normally be conducted in Washington, D.C. However, when a firm or individual being considered for debarment pleads inability to attend a hearing in Washington, D.C., the Director, Supply Service, may direct that the hearing be held at a point more convenient to all parties concerned.

(4) Representation. The firm or individual being considered for debarment may appear in person in the case of an individual, a corporation may be represented by an officer thereof, a partnership or joint venture by a member thereof, or any of these by a duly authorized representative. The contracting officer recommending the debarment action will normally, at the discretion of the Director, Supply Service, be present at the hearing.

(5) Scope of debarment. The debarment will normally be Veterans Administration-wide and will cover all commodities or services supplied by the firm or individual(s). However, depending upon the circumstances, firms or individual(s) may be debarred for certain commodities or services, certain geo

graphical areas, etc., as determined by the debarring official, based upon the evidence submitted or developed.

(6) Period of debarment. The period of debarment will be based upon the circumstances involved but will not, except in unusual circumstances, exceed a period of 3 years. The Director, Supply Service, may for those firms or individuals debarred by the Veterans Administration remove the debarment, reduce the period of debarment or amend the scope of the debarment, if indicated, after review of documentary evidence submitted by or in behalf of the contractor setting forth the appropriate grounds for granting of such relief. Such grounds may be, but are not limited to, newly discovered material evidence, reversal of a conviction, bona fide change of ownership or management or the elimination of the cause for which debarment was imposed.

(7) Notice of debarment. (1) A written notice imposing debarment will be sent by certified mail, return receipt requested, to the firm or individuals by the Director, Supply Service. It will set forth the scope and period of debarment together with the circumstances upon which the debarment was based.

(ii) The imposition of debarment upon a firm or an individual by the Director, Supply Service, shall be final and conclusive except that the firm or individual so debarred may seek relief in a court of competent jurisdiction.

[30 F.R. 4673, Apr. 10, 1965, as amended at 31 F.R. 12718, Sept. 29, 1966; 31 F.R. 16199, Dec. 17, 1966; 32 F.R. 7912, June 1, 1967] § 8-1.605 Suspension of bidders.

The procedures in FPR 1-1.605 to 11.605-4, inclusive, will be used by the Veterans Administration in considering the suspension of a firm or individuals. [31 F.R. 16199, Dec. 17, 1966]

§ 8–1.605–1 Causes and conditions under which executive agencies may suspend contractors.

A firm or individuals may be suspended only under the causes and conditions in FPR 1-1.605-1. Only the Director, Supply Service, may suspend a firm or individual.

[31 F.R. 16199, Dec. 17, 1966]

§ 8-1.605-4 Notice of suspension.

The notice of suspension shall be sent by certified mail, return receipt requested, to the firm or individuals. A suspension may be imposed upon the

mailing of such notice. However, the firm or individuals may, at any time, submit information in opposition to such suspension and such information shall be considered.

[31 F.R. 16199, Dec. 17, 1966]

§ 8-1.606 Agency procedure.

Debarment or suspension action may be initiated by any Contracting Officer. The recommendation for debarment or suspension together with a statement of the cause or conditions (see FPR 1-1.604 and 1-1.605-1), suggested term of debarment or suspension and documentary evidence to support the recommendation will be submitted to the appropriate department head or staff office. Pending desposition of the recommendation, no awards will be made to the firm or individual recommended for debarment or suspension. The department head or staff officer concerned will review the adequacy of the debarment or suspension request and transmit it to the Director, Supply Service (134G), with

Subject to the provisions of FPR 1706, the purchase of construction estimated to cost more than $2,000 but less than $500,000, including alteration, maintenance and repair other than work on installed mechanical systems such as elevators, steam generating, air conditioning, communications, and power distribution, by field station contracting officers will be set aside for exclusive small business participation. An exception to this policy may be taken when the contracting officer determines, in writing, that there are not sufficient small business concerns available to furnish adequate competition. This determination will be made a part of the resultant contract file.

[33 F.R. 16113, Nov. 2, 1968] § 8-1.708 Certificate

program.

of competency

[35 F.R. 11470, July 17, 1970]

§ 8-1.708-2 Applicability and procedure.

The higher authority referred to in FPR 1-1.708–2(a) will be the following individuals in the Veterans

Administration: