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Federal Register / Vol. 86, No. 187 / Thursday, September 30, 2021 / Rules and Regulations
health-care resources has the same definition as that provided in VAAR
873.102.
This final rule adds subpart 806.1Full and Open Competition, and section 806.102, Use of competitive procedures, to address the application of 38 U.S.C. 8127 to competitive General Services Administration GSA and VA
Federal Supply Schedules.
This rule also adds subpart 806.2Full and Open Competition After Exclusion of Sources, which contains two sections: 806.203, Setasides for small business concerns, which directs attention to subparts 819.5 and 819.70 for VAs policies on set-asides for small business concerns, and 806.270, Set-asides for verified Veteran-owned small businesses. This rulemaking, in section 806.270, sets forth VAs authority under VAs supplement to FAR part 6VAAR part 806, and the requirement mandated by 38 U.S.C. 8127dreferred to as the VA
Rule of Two, to conduct set-asides for Veteran-owned small businesses whenever market research provides the contracting officer with a reasonable expectation of receiving two or more offers/quotes from eligible and verified service-disabled veteran-owned small businesses SDVOSBs or veteranowned small businesses VOSBs, and award can be made at a fair and reasonable price that offers best value to the Government. This section also states that the requirement to set aside procurements for Veteran-owned small businesses applies to all contracts under this regulation, including orders under interagency acquisition vehicles such as the Federal Supply Schedules FSS.
As a part of this rulemaking, subpart 806.3Other Than Full and Open Competition, is revised to add specific reference to VAs authority for noncompetitive procedures for verified Veteran-owned small businesses and to clarify existing authorities regarding such noncompetitive procedures. The revised subpart also clarifies existing statutory authority for other VA unique authorities and updates new Title 41
citations and other specific citation requirements.
This final rule amends section 806.302, Circumstances permitting other than full and open competition, to add several sections. This rule also revises section 806.3025, Authorized or required by statute, to remove its text and retain the title. The removed text has been revised and moved to section 806.302571.
Under section 806.3025, this final rule adds two sections: 806.302570 and 806.302571. Section 806.302570, Noncompetitive procedures for verified
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Veteran-owned small businesses, provides coverage of the authority to enter into contracts non-competitively, when specifically authorized under the VA Veterans First Contracting Program in accordance with VAAR 819.7007 or 819.7008.
Section 806.302571, Authorized or required by statuteVA unique authorities, contains the statutes previously listed in 806.3025 and provides policy under the statutes to make awards by other than full and open competition. Paragraph a provides the updated Title 41
authority41 U.S.C. 3304a5, updated from the moved coverage under 806.3025. Paragraph b1 provides that full and open competition is not required for the acquisition of prosthetic appliances and services based on the authority under 38 U.S.C. 8123.
Paragraph b2 provides the existing policy for the acquisition of commercial health-care resources, use of medical equipment or space, or research acquired from an institution affiliated with VA under the authority set forth in 38 U.S.C. 8153a3A. Paragraph b3
includes policy for the acquisition of commercial health-care resources, the use of medical equipment or space from other than an affiliated institution, but only when conducted in accordance with simplified procedures in VAAR
part 873, Simplified Acquisition Procedures for Health-Care Resources, under the authority set forth in 38
U.S.C. 8153a3B. Paragraph b4
provides the authority under 38 U.S.C.
8153a3C-D for the sole source acquisition of commercial health-care resources, the use of medical equipment or space, when not acquired from an affiliated institution in accordance with paragraph b2.
Section 806.302571, paragraph c, requires that contracts awarded using the authority set forth under paragraph a, with the exception of acquisitions authorized under paragraph b2 of this section, shall be supported by the written justifications and approvals described in FAR 6.303 and 6.304.
Section 806.302571, paragraph d, incorporates an updated Title 41
citation reference: 41 U.S.C. 3304a5;
defines specific authorities that permit VA to procure certain supplies and services as sole source awards; and requires contracting officers, pursuant to FAR 6.3025c2ii, to comply with written justification and approval requirements set forth in FAR 6.303 and 6.304, citing 41 U.S.C. 3304a5 and the applicable statute. Specifically, section 806.302571d contains authorities previously under section 806.3025 and continues existing policy
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to allow VA to enter into contracts for the cited types of supplies and services under this section.
This rulemaking removes section 806.3027, Public interest, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA see FAR 1.301b and moves the coverage to the VAAM.
This final rule also removes section 806.304, Approval of the justification, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA see FAR 1.301b and which will be moved to the VAAM.
The proposed rule revised subpart 806.5Competition Advocates to amend the title to Advocates for Competition to conform to the revised title in FAR part 6. The proposed rule also revised section 806.501, Requirement, to identify the Deputy Senior Procurement Executive as the VA
Advocate for Competition. However, subsequent to publication of the proposed rule, VA organizational changes resulted in the need to update the title of who in VA is assigned the role of the VA Advocate for Competition. This is now updated in this final rule as described in item six in the Technical Non-Substantive Changes section of the preamble.
This final rule removes section 806.570, Planning requirements, as it provides internal procedural guidance not having a significant effect beyond the internal operating procedures of the VA see FAR 1.301b and the coverage has been moved to the VAAM.
VA provided a 60-day comment period for the public to respond to the proposed rule. As stated previously, VA
received comments from six respondents.
A summary of the comments and the issues raised are provided as follows:
One commenter posted a general comment regarding advances in health care in what appears to be part of an academic exercise. VA appreciates the comment. As the comment does not specifically address issues with the proposed rule, VA is making no revisions as a result of the comment.
Another respondent suggests that moving items into the VAAM and eliminating Information Letters ILs and various procedural guidance is a positive move. They also note that the VAAM is a better alternative than continued reliance on sub-agency procurement manuals. VA appreciates the comment on the proposed rule. The VAAR/VAAM project objective is to remove procedural guidance that is internal to VA and move it into the VA

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