VA Acquisition Regulation: Service Contracting

DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 837 and 852

RIN 2900-AG67

VA Acquisition Regulation: Service Contracting

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document, with a nonsubstantive change, adopts as a final

rule the provisions of a proposal to amend the Department of Veterans

Affairs (VA) Acquisition Regulation pertaining to ``SERVICE

CONTRACTING'' and ``SOLICITATION PROVISIONS AND CONTRACT CLAUSES.'' The

regulation is amended to implement a class deviation from the Federal

Acquisition Regulation by establishing a modified clause for

indemnification and medical liability insurance requirements applicable

to VA contracts. The use of this clause, instead of the Federal

Acquisition Regulation clause, is intended to ensure that contractors

providing nonpersonal health-care services to VA are able to comply

with State statutes and avoid excessive costs.

EFFECTIVE DATE: October 8, 1996.

FOR FURTHER INFORMATION CONTACT: Wanza Lewis, Acquisition Policy

Division (95A), Office of Acquisition and Materiel Management,

Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC

20420, (202) 273-8820.

SUPPLEMENTARY INFORMATION: On October 22, 1993, we published in the

Federal Register (58 FR 54548) a proposal to amend the Department of

Veterans Affairs Acquisition Regulation to implement a class deviation

from the Federal Acquisition Regulation Section 37.401 and clause at

Section 52.237-7. Comments were solicited concerning the proposal for

60 days, ending December 20, 1993. We did not receive any comments. The

information presented in the proposed rule document still provides a

basis for this final rule. Therefore, based on the rationale set forth

in the proposed rule document, we are adopting the provisions of the

proposed rule as a final rule without change, except for a

nonsubstantive change which removes the designation of the material in

Section 852.237-7 as a deviation.

The Secretary hereby certifies that this final rule will not have a

significant economic impact on a substantial number of small entities

as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C.

601-612. This final rule would not cause a significant effect on any

entities. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is

exempt from the initial and final regulatory flexibility analysis

requirements of sections 603 and 604.

List of Subjects

48 CFR Part 837

Government procurement.

48 CFR Part 852

Government procurement, Reporting and recordkeeping requirements.

Approved: September 25, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 48 CFR parts 837 and 852

are amended as set forth below:

PART 837--SERVICE CONTRACTING

1. The authority citation for part 837 is revised to read as

follows:

Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).

2. Subpart 837.4, section 837.403 is added to read as follows:

Subpart 837.4--Nonpersonal Health-Care Services

837.403 Contract clause.

The contracting officer shall insert the clause at 852.237-7,

Indemnification and Medical Liability Insurance, in lieu of FAR Clause

52.237-7, in solicitations

[[Page 52710]]

and contracts for nonpersonal health-care services. The contracting

officer may include the clause in bilateral purchase orders for

nonpersonal health-care services awarded under the procedures in FAR

part 13 and (VAAR) 48 CFR part 813.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. The authority citation for part 852 continues to read as

follows:

Authority: 38 U.S.C. 501 and 40 U.S.C. 486(c).

4. Section 852.237-7 is added to read as follows:

852.237-7 Indemnification and Medical Liability Insurance.

As prescribed in 837.403, insert the following clause:

Indemnification and Medical Liability Insurance (October 1996)

(a) It is expressly agreed and understood that this is a

nonpersonal services contract, as defined in Federal Acquisition

Regulation (FAR) 37.101, under which the professional services

rendered by the Contractor or its health-care providers are rendered

in its capacity as an independent contractor. The Government may

evaluate the quality of professional and administrative services

provided but retains no control over professional aspects of the

services rendered, including by example, the Contractor's or its

health-care providers' professional medical judgment, diagnosis, or

specific medical treatments. The Contractor and its health-care

providers shall be liable for their liability-producing acts or

omissions. The Contractor shall maintain or require all health-care

providers performing under this contract to maintain, during the

term of this contract, professional liability insurance issued by a

responsible insurance carrier of not less than the following

amount(s) per specialty per occurrence: [Contracting Officer insert

the dollar value(s) of standard coverage(s) prevailing within the

local community as to the specific medical specialty, or

specialties, concerned, or such higher amount as the Contracting

Officer deems necessary to protect the Government's interests].

However, if the Contractor is an entity or a subdivision of a State

that either provides for self-insurance or limits the liability or

the amount of insurance purchased by State entities, then the

insurance requirement of this contract shall be fulfilled by

incorporating the provisions of the applicable State law.

(b) An apparently successful offeror, upon request of the

Contracting Officer, shall, prior to contract award, furnish

evidence of the insurability of the offeror and/or of all health-

care providers who will perform under this contract. The submission

shall provide evidence of insurability concerning the medical

liability insurance required by paragraph (a) of this clause or the

provisions of State law as to self-insurance, or limitations on

liability or insurance.

(c) The Contractor shall, prior to commencement of services

under the contract, provide to the Contracting Officer Certificates

of Insurance or insurance policies evidencing the required insurance

coverage and an endorsement stating that any cancellation or

material change adversely affecting the Government's interest shall

not be effective until 30 days after the insurer or the Contractor

gives written notice to the Contracting Officer. Certificates or

policies shall be provided for the Contractor and/or each health-

care provider who will perform under this contract.

(d) The Contractor shall notify the Contracting Officer if it,

or any of the health- care providers performing under this contract,

change insurance providers during the performance period of this

contract. The notification shall provide evidence that the

Contractor and/or health-care providers will meet all the

requirements of this clause, including those concerning liability

insurance and endorsements. These requirements may be met either

under the new policy, or a combination of old and new policies, if

applicable.

(e) The Contractor shall insert the substance of this clause,

including this paragraph (e), in all subcontracts for health-care

services under this contract. The Contractor shall be responsible

for compliance by any subcontractor or lower-tier subcontractor with

the provisions set forth in paragraph (a) of this clause.

(End of Clause)

[FR Doc. 96-25568 Filed 10-7-96; 8:45 am]

BILLING CODE 8320-01-P