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LOTTER on DSK11XQN23PROD with RULES1

Federal Register / Vol. 86, No. 187 / Thursday, September 30, 2021 / Rules and Regulations 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with the FAR and remove outdated and duplicative requirements and reduce burden on contractors.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 comment does not require the VA to make any revisions to the proposed rule.
The third commenter submits that the Class Deviations and other guidance issued by VA in response to the Supreme Courts decision in Kingdomware Technologies, Inc. v.
United States, 136 S. Ct. 1969 2016, recognize that the Javits-Wagner-ODay Acts JWOD mandatory requirement to purchase from the Procurement List is capable of coexisting with the VA Rule of Two. The commenter states that the current guidance provides that the products and services on the AbilityOne Procurement List are mandatory sources but the VA Rule of Two is to be applied before adding new VA requirements to the Procurement List. To avoid any doubt that the February 9, 2018, class deviation is still in effect, the commenter urges the VA to clarify that VAAR 806.270 does not supersede VAAR 808.002 or the February 9, 2018, class deviation.
VA appreciates the comments. The respondents comments concerning mandatory sources are appropriately addressed in the proposed rule pertaining to VAAR part 808 and related clauses and provisions. Since the rule RIN 2900AQ21 was published for public comment, new legislation impacting AbilityOne was signed into law on August 8, 2020 see further description regarding this below and the class deviation to VAAR 808.002 issued on August 14, 2020, that addresses the priority of the AbilityOne program in relation to the Veterans First Contracting Program, with certain exceptions. As these comments do not pertain to the language and text in this rule for VAAR part 806, VA is making no changes based on these comments.
The fourth respondent also commented on this rule and its relation to AbilityOne, supporting the primacy of JWOD as a mandatory source and states that this section of the VAAR
should also recognize that nonmandatory source competition is not required where a mandatory source applies, and that the JWOD, and other statutes, direct agencies to purchase certain products and services from mandatory sources. The commenter also recommends revising the part to recognize that specified sources include the mandatory sources identified in FAR 8.002, 8.004, and subpart 8.7.

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While VA appreciates the feedback from the respondents on this proposed rule, the Veterans First Contracting Program was updated as a result of amendments to 38 U.S.C. 8127 by Public Law 116155, the Department of Veterans Affairs Contracting Preference Consistency Act of 2020, signed August 8, 2020, which requires the use of mandatory Government sources under the AbilityOne program for covered products and services except for certain previously awarded contracts to servicedisabled veteran-owned small businesses SDVOSBs and veteranowned small businesses VOSBs after December 22, 2006, and in effect August 7, 2020. This is implemented in VAAR
808.002a1iv and a2. VA
originally issued a Class Deviation on August 14, 2020, to make this change pending publication of a rule; this deviation was rescinded and replaced with Class Deviation from VA
Acquisition Regulation part 808, Required Sources of Supplies and Services, dated July 20, 2021. The priorities for use of mandatory Government sources are covered by FAR
part 8 and VAAR part 808, respectively.
The language as set forth in VAAR part 806 and specifically at VAAR 806.270
fully comports with VAs requirements under VAAR part 808. VA will not revise the final rule as a result of this comment. Note: VA is also planning an interim rule which would include a pointer at subpart 819.5 back to 808.002a1iv and a2 regarding the AbilityOne program to ensure contracting officers and the public are reminded of the priority use of the AbilityOne program as set forth in VAAR 808.002.
The next respondent had multiple comments and the VA will address each in order. After first commending VA for its thoughtful development of the proposed rule, the commenter recommends that VAAR 806.501 be revised to include the actual list of Advocates for Competition. The commenter also states that VAAR
806.501 could be further improved by including a requirement to identify the cognizant SBA Procurement Center Representative, the VA Ombudsman, and the VA Advocate for Competition in each solicitation above the simplified acquisition threshold.
VA has considered this suggestion but requiring each solicitation or contract to include a list is beyond the requirements of FAR 6.501 that VA is implementing at VAAR 806.501.
However, VA is making available a complete list of VA procuring activity Advocates for Competition on its website that will be available when the
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final rule is published. Therefore, VA is making no changes to the proposed rule as a result of this comment.
The next comment recommended revisions to VAAR 806.270; specifically, that VAAR 806.270 be modified to exclude references to Class Deviation provisions and that VA remove the reference to the VA Rule of Two see 802.101 from the final version of VAAR 806.270 as the definition of VA
Rule of Two was not added to VAAR
802.101 via the required notice and public comment rulemaking process.
VA appreciates the comment and responds that the VA Rule of Two is a term that is defined and incorporated into 802.101 under a Class Deviation and it will be incorporated into part 802
as a part of a future proposed rule.
Nevertheless, to avoid any confusion, section 806.270 has been revised to remove the reference, see 802.101.
The respondent also comments that the VAAR must fully implement the Vets Act Priority for SDVOSBs first, and then VOSBs. The commenter states VA
should further explain how contracting officers give full credit and partial credit for VOSBs and to address its use in Lowest Priced Technically Acceptable LPTA procurements that do not permit tradeoffs. They believe that a new provision should be added to VAAR
852.21570.
VA appreciates the comments. The respondents comments concerning 852.21570 were appropriately addressed in the rule RIN 2900AQ20
pertaining to VAAR part 815 and related clauses and provisions. Therefore, as these comments do not pertain to the language and text in this rule for VAAR
part 806, VA is making no changes based on these comments. However, VA
is clarifying section 806.270 to make clear that the statutes required set aside priorities are for SDVOSBs first, then VOSBs by adding the words first, then . . . after SDVOSBs, and removing the word and so that it now reads, . . . verified service-disabled Veteranowned small businesses SDVOSBs first, then Veteran-owned small businesses VOSBs. This clarification is consistent with 38 U.S.C. 8127.
The same respondent recommends the proposed rule should be revised as a reference in the preamble of the proposed rule to additional internal requirements is problematic in their opinion. When VA issues the final rule, it should explain in the preamble that the only requirements for a VA
contracting officer to issue a sole source contract under the Vets Act are as specified in the text of VAAR 806.302
570, and there are no unspecified agency procedures or class deviations
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