VA Acquisition Regulations: Commercial Items

DEPARTMENT OF VETERANS AFFAIRS

48 CFR Parts 810, 811, 812, 836, 852 and 870

RIN 2900-AI05

VA Acquisition Regulations: Commercial Items

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: This document proposes to amend the Department of Veterans

Affairs Acquisition Regulations (VAAR) concerning the acquisition of

commercial items. It is proposed to amend VAAR provisions to conform to

[[Page 44933]]

the Federal Acquisition Regulation (FAR), to delete obsolete references

and titles, to update references and titles, to reorganize material and

to remove obsolete material. This document also proposes to set forth

VAAR provisions and clauses for use by contracting officers for

commercial item solicitations and contracts. These provisions and

clauses appear to be warranted for use in commercial item solicitations

and contracts. This document also requests Paperwork Reduction Act

comments concerning collection of information regarding clauses and

provisions for use in both commercial and non-commercial item, service,

and construction solicitations and contracts.

DATES: Comments must be received on or before October 24, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office

of Regulations Management (02D), Department of Veterans Affairs, 810

Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should

indicate that they are submitted in response to ``RIN 2900-AI05.'' All

written comments will be available for public inspection in the Office

of Regulations Management, Room 1158, between the hours of 8:00 a.m.

and 4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Don Kaliher, Acquisition Policy Team

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

Veterans Affairs, 810 Vermont Ave., NW, Washington DC 20420, (202) 273-

8819.

SUPPLEMENTARY INFORMATION:

Background

This document proposes to transfer to Part 811 the material

currently contained in Parts 810 and 812 to conform to the

corresponding numbering of the FAR, to renumber and rename other

provisions to conform to the FAR, to delete obsolete references and

titles, and to update references and titles.

Regulations in the FAR that required the use of Federal

specifications have been removed. Accordingly, implementing and

supplementing regulations contained in VAAR Part 810 regarding

mandatory use of Federal specifications are proposed to be removed to

correspond with the FAR.

The VAAR contains a number of provisions and clauses set forth in

Part 852. This document proposes to amend VAAR Part 812.301 to

incorporate certain of those provisions and clauses specifically for

use in VA commercial item solicitations and contracts. Contracting

officers would use these provisions and clauses where appropriate for

commercial item solicitations and contracts that exceed the micro-

purchase threshold. The provisions and clauses could be used by

contracting officers for commercial item procurements below the micro-

purchase threshold when determined by the contracting officer to be in

the Government's best interest. The FAR, at 48 CFR 12.301(f), states

that agencies may supplement the provisions and clauses prescribed in

Part 12 of the FAR as necessary to reflect agency unique statutes

applicable to the acquisition of commercial items or as may be approved

by the agency senior procurement executive. These provisions and

clauses have been approved by the VA Senior Procurement Executive

specifically for use in commercial item solicitations and contracts.

Accordingly, it is proposed that the following VAAR provisions and

clauses, which are set forth at 48 CFR Chapter 8, Part 852, would apply

to commercial item solicitations and contracts for the reasons stated.

Veteran-Owned Small Business

1. 852.219-70, Veteran-Owned Small Business (DEC 1990). The offeror

represents that the firm submitting this offer (----) is (----) is not,

a veteran-owned small business, (----) is (----) is not, a Vietnam era

veteran-owned small business, and (----) is (----) is not, a disabled

veteran-owned small business. A veteran-owned small business is defined

as a small business, at least 51 percent of which is owned by a veteran

who also controls and operates the business. Control in this context

means exercising the power to make policy decisions. Operate in this

context means actively involved in the day-to-day management. For the

purpose of this definition, eligible veterans include:

(a) A person who served in the U.S. Armed Forces and who was

discharged or released under conditions other than dishonorable.

(b) Vietnam era veterans who served for a period of more than 180

days, any part of which was between August 5, 1964, and May 7, 1975,

and were discharged under conditions other than dishonorable.

(c) Disabled veterans with a minimum compensable disability of 30

percent, or a veteran who was discharged for disability. Failure to

execute this representation will be deemed a minor informality and the

bidder or offeror shall be permitted to satisfy the requirement prior

to award (see FAR 14.405).

(End of Provision)

The above Veteran-Owned Small Business provision would help support

VA's policy to assist small businesses owned by veterans or by disabled

veterans. The information gathered would allow VA to ensure that such

firms are given an opportunity to participate in VA acquisitions.

Without such information, VA's outreach efforts would be hindered.

Commercial Advertising

2. 852.270-4, Commercial Advertising (NOV 1984).

The bidder or offeror agrees that if a contract is awarded to him/

her, as a result of this solicitation, he/she will not advertise the

award of the contract in his/her commercial advertising in such a

manner as to state or imply that the Department of Veterans Affairs

endorses a product, project or commercial line of endeavor.

(End of clause)

The above Commercial Advertising clause is required to ensure that

firms do not imply or claim in their advertising that VA endorses the

firms' products or services.

Guarantee

3. 852.210-71, Guarantee (NOV 1984).

The contractor guarantees the equipment against defective material,

workmanship and performance for a period of [ ],* said guarantee to

run from date of acceptance of the equipment by the Government. The

contractor agrees to furnish, without cost to the Government,

replacement of all parts and material which are found to be defective

during the guarantee period. Replacement of material and parts will be

furnished to the Government at the point of installation, if

installation is within the continental United States, or f.o.b. the

continental U.S. port to be designated by the contracting officer if

installation is outside of the continental United States. Cost of

installation of replacement material and parts shall be borne by the

contractor.**

(End of clause)

*Normally, insert one year. If industry policy covers a shorter

or longer period, i.e., 90 days or for the life of the equipment,

insert such period.

**The above clause will be modified to conform to standards of

the industry involved.

Regarding the above Guarantee clause, the FAR does not have a

guarantee clause. Rather, contracting officers are expected to draft

individual clauses for each acquisition. This clause is drafted to

conform to commercial practices,

[[Page 44934]]

would reduce VA administrative costs when drafting solicitations, and

would assist VA contracting officers by having a uniform guarantee

clause for use in all acquisitions.

Rejected Goods

Contracting officers may include the following clause in contracts

for property, except for contracts for packing house and dairy

products, bread and bakery products, and for fresh and frozen fruits

and vegetables.

4. 852.210-72, Rejected Goods (NOV 1984).

Rejected goods will be held subject to contractor's order for not

more than 15 days, after which the rejected merchandise will be

returned to the contractor's address at his/her risk and expense.

Expenses incident to the examination and testing of materials or

supplies which have been rejected will be charged to the contractor's

account.

(End of clause)

Contracts for packing house and dairy products, bread and bakery

products, and for fresh and frozen fruits and vegetables would contain

the following clause:

5. 852.210-72, Rejected Goods (NOV 1984).

The contractor shall remove rejected supplies within 48 hours after

notice of rejection. Supplies determined to be unfit for human

consumption will not be removed without permission of the local health

authorities. Supplies not removed within the allowed time may be

destroyed. The Department of Veterans Affairs will not be responsible

for nor pay for products rejected. The contractor will be liable for

costs incident to examination of rejected products.

(End of clause)

Regarding the two above Rejected Goods clauses, the FAR does not

include a clause on how to handle rejected goods. The Uniform

Commercial Code (UCC) provides that a buyer (VA) is under a duty to

hold rejected goods for a time sufficient to permit the seller to

remove them. The clause numbered as ``4'' sets forth a 15-day limit on

holding nonperishable goods and the clause numbered as ``5'' sets forth

a 48-hour limit on holding perishable goods. We believe that these

clauses do not conflict with commercial practices and that they set

forth reasonable time limits for holding rejected goods.

Frozen Processed Foods

6. 852.210-73, Frozen Processed Foods (NOV 1984).

The products delivered under this contract shall be in excellent

condition; shall not show evidence of defrosting, refreezing, or

freezer burn; and shall be transported and delivered to the consignee

at a temperature of 0 degrees Fahrenheit or lower.

(End of clause)

The above Frozen Processed Foods clause specifies the minimum

acceptable condition of frozen foods upon delivery. The FAR does not

contain similar requirements. VA purchases large quantities of frozen

foods and this clause is proposed for use in VA's commercial item

acquisitions to ensure receipt of acceptable products.

Special Notice

7. 852.210-74, Special Notice (APR 1984).

Descriptive literature. The submission of descriptive literature

with offers is not required and voluntarily submitted descriptive

literature which qualifies the offer will require rejection of the

offer.

However, within 5 days after award of contract, the contractor will

submit to the contracting officer literature describing the equipment

he/she intends to furnish and indicating strict compliance with the

specification requirements.

The contracting officer will, by written notice to the contractor

within 20 calendar days after receipt of the literature, approve,

conditionally approve, or disapprove the equipment proposed to be

furnished. The notice of approval or conditional approval will not

relieve the contractor from complying with all requirements of the

specifications and all other terms and conditions of this contract. A

notice of conditional approval will state any further action required

of the contractor. A notice of disapproval will cite reasons therefor.

If the equipment is disapproved by the Government, the contractor

will be subject to action under the Default provision of this contract.

However, prior to default action the contractor will be permitted a

period (at least 10 days) under that clause to submit additional

descriptive literature on equipment originally offered or descriptive

literature on other equipment.

The Government reserves the right to require an equitable

adjustment of the contract price for any extension of the delivery

schedule necessitated by additional descriptive literature evaluations.

(End of provision)

The above Special Notice provision concerns the submission of

descriptive literature and is used only in telephone system

acquisitions. There is no corresponding FAR coverage. This clause is

proposed for use in VA's telephone system commercial item acquisitions.

Because of the high installation costs for telephone equipment, the

added emphasis on ensuring the capability of the equipment to meet

specification requirements prior to installation appears to be

warranted.

Technical Industry Standards

8. 852.210-75, Technical Industry Standards (APR 1984).

The supplies or equipment required by this invitation for bid or

request for proposal must conform to the standards of the [ ]* and [

]* as to [ ]**. The successful bidder or offeror will be required to

submit proof that the item(s) he/she furnishes conforms to this

requirement. This proof may be in the form of a label or seal affixed

to the equipment or supplies, warranting that they have been tested in

accordance with and conform to the specified standards. The seal or

label of any nationally recognized laboratory such as those listed by

the National Fire Protection Association, Boston, Massachusetts, in the

current edition of their publication ``Research on Fire,'' is

acceptable. Proof may also be furnished in the form of a certificate

from one of these laboratories certifying that the item(s) furnished

have been tested in accordance with and conform to the specified

standards.

(End of provision)

* Insert name(s) of organization(s), the standards of which are

pertinent to the Government needs.

** Insert pertinent standards, i.e., fire and casualty, safety

and fire protection, etc.

The above Technical Industry Standards provision requires offerors

to furnish evidence that the supplies or equipment they intend to

provide meet the technical industry standards required by the

solicitation. It is in VA's best interest, and the clause would be

required, to ensure that the supplies or equipment VA procures meet

certain standards, such as Underwriters Laboratory, to protect the

safety of individuals coming in contact with or using those supplies or

equipment.

Caution to Bidders--Bid Envelopes

9. 852.214-70, Caution to Bidders--Bid Envelopes (APR 1984)

It is the responsibility of each bidder to take all necessary

precautions, including the use of proper mailing

[[Page 44935]]

cover, to insure that the bid price cannot be ascertained by anyone

prior to bid opening. If a bid envelope is furnished with this

invitation, the bidder is requested to use this envelope in submitting

the bid. The bidder may, however, when it suits a purpose, use any

suitable envelope, identified by the invitation number and bid opening

time and date. If a bid envelope is not furnished, the bidder will

complete and affix the enclosed Optional Form 17, Sealed Bid Label, to

the lower left corner of the envelope used in submitting the bid.

(End of provision)

FAR Part 12 and FAR commercial item provisions do not contain any

guidance to bidders regarding protection of their bid prices or on how

to clearly identify their bids. This VAAR provision provides such

guidance and may assist bidders in ensuring that their bid prices are

protected from exposure prior to bid opening and that their bids are

identified and received on time.

Estimated Quantity(ies)

The following clause would be used in estimated quantity contracts,

except contracts for coal, orthopedic, prosthetic and optical supplies,

or in National Cemetery Service contracts for monuments:

10. 852.216-70, Estimated Quantities (APR 1984).

As it is impossible to determine the exact quantities that will be

required during the contract term, each bidder whose bid is accepted

wholly or in part will be required to deliver all articles or services

that may be ordered during the contract term, except as he/she

otherwise indicates in his/her bid and except as otherwise provided

herein. Bids will be considered if made with the proviso that the total

quantities delivered shall not exceed a certain specified quantity.

Bids offering less than 75 percent of the estimated requirement or

which provide that the Government shall guarantee any definite

quantity, will not be considered. The fact that quantities are

estimated shall not relieve the contractor from filling all orders

placed under this contract to the extent of his/her obligation. Also,

the Department of Veterans Affairs shall not be relieved of its

obligation to order from the contractor all articles or services that

may, in the judgment of the ordering officer, be needed except that in

the public exigency procurement may be made without regard to this

contract.

(End of clause)

The following clause would be used in local coal-hauling contracts:

11. 852.216-70, Estimated Quantity (APR 1984).

The estimated requirement shown in this invitation for bids cover

the requirements for the entire contract period. It is understood and

agreed that during the period of this contract the Government may order

and the contractor will haul such coal as may, in the opinion of the

Government, be required, except that in the public exigency procurement

may be made without regard to this contract.

(End of clause)

The following clause would be used for orthopedic, prosthetic, and

optical supplies.

12. 852.216-70, Quantities (APR 1984).

The supplies and/or services listed in the attached schedule will

be furnished at such time and in such quantities as they are required.

(End of clause)

The following clause would be used for National Cemetery Service

contracts for monuments:

13. 852.216-70, Estimated Quantities (JUL 1989).

As it is impossible to determine the exact quantities that will be

required during the contract term, each bidder whose bid is accepted

wholly or in part will be required to deliver all articles that may be

ordered during the contract term, except as he or she otherwise

indicates in his or her bid and except as otherwise provided herein.

Bids will be considered if made with the proviso that the total

quantities delivered shall not exceed a certain specified quantity. The

fact that quantities are estimated shall not relieve the contractor

from filling all orders placed under this contract to the extent of his

or her obligation. Also, the Department of Veterans Affairs shall not

be relieved of its obligation to order from the contractor all articles

that may, in the judgment of the ordering officer, be needed except

that in the public exigency procurement may be made without regard to

this contract.

(End of clause)

The above clauses regarding quantities would be for use in

solicitations where definite quantities cannot be determined. They

would require contractors to provide all quantities ordered under the

contract, even if those quantities exceed the original estimate. These

clauses appear to be necessary to ensure that VA is able to obtain the

quantities that are ultimately needed.

Sales or Use Taxes

14. 852.229-70, Sales or Use Taxes (APR 1984).

The articles listed in this bid invitation will be purchased from

personal funds of patients and prices bid herein include any sales or

use tax heretofore imposed by any State, or by any duly constituted

taxing authority therein, having jurisdiction to levy such a tax,

applicable to the material in this bid.

(End of provision)

15. 852.229-71, Sales or Use Taxes (APR 1984).

Any article purchased from this contract, payable from personal

funds of patients, will be subject to any applicable sales or use tax

levied thereon by any State, or by duly constituted taxing authority

therein having jurisdiction to levy such a tax; the total amount of the

tax applicable to such purchase payable from personal funds of patients

will be computed on the total amount of the order and will be shown as

a separate item on the purchase order and invoice. The bidder shall

identify the applicable taxes and rates in his/her bid.

(End of provision)

Regarding the two above provisions on taxes, VA contracting

officers occasionally issue solicitations for goods or services that

would be purchased from patient funds. Under such circumstances, the

purchase is not exempt from state and local taxes. The standard FAR

clause 52.212-4, paragraph (k), provides that the contract price shall

include all applicable taxes but, if used in a solicitation for

purchase from patient funds, does not advise bidders that the Federal

Government is not the purchaser. Since the Federal Government is exempt

from most taxes, this could result in a bidder failing to include taxes

in such bids. These provisions appear to be necessary for use in

solicitations for commercial items to be purchased from patient funds

to protect the seller from possible losses.

Protest Content

16. 852.233-70, Protest Content (JUN 1987)

(a) Any protest filed by an interested party shall:

(1) Include the name, address, and telephone number of the

protester;

(2) Identify the solicitation and/or contract number;

(3) Include an original signed by the protester or his/her

representative and at least one copy;

(4) Set forth a detailed statement of the legal and factual ground

of the protest including copies of relevant documents;

[[Page 44936]]

(5) Specifically request a ruling of the individual upon whom the

protest is served; and

(6) State the form of relief requested.

(b) Failure to comply with the above may result in dismissal of the

protest without further consideration.

(End of provision)

FAR 12.301(d) does not require contracting officers to include FAR

provision 52.233-2, Service of Protest, in commercial item

solicitations, but FAR 12.301(e) does allow optional use. If FAR

provision 52.233-2 is used by contracting officers, this corresponding

VAAR provision 852.233-70 should also be included in the solicitation.

This provision advises interested parties of the information the FAR,

at 33.103(d)(2), requires interested parties to include in a protest.

This assists bidders/offerors by having the information readily

available in the solicitation, without their having to refer back to

the FAR.

Contractor Responsibilities

17. 852.237-70, Contractor Responsibilities (APR 1984) The

contractor shall obtain all necessary licenses and/or permits required

to perform this work. He/she shall take all reasonable precautions

necessary to protect persons and property from injury or damage during

the performance of this contract. He/she shall be responsible for any

injury to himself/herself, his/her employees, as well as for any damage

to personal or public property that occurs during the performance of

this contract that is caused by his/her employee's fault or negligence,

and shall maintain personal liability and property damage insurance

having coverage for a limit as required by the laws of the State of [

]. Further, it is agreed that any negligence of the Government, its

officers, agents, servants and employees, shall not be the

responsibility of the contractor hereunder with the regard to any

claims, loss, damage, injury, and liability resulting therefrom.

(End of clause)

The above Contractor Responsibilities clause is used in service and

construction contracts. This clause makes it the contractor's

responsibility to obtain all necessary licenses and permits to perform

the work covered by the contract and emphasizes that the contractor is

responsible for safety.

Indemnification and Insurance

18. 852.237-71, Indemnification and Insurance (APR 1984)

(a) Indemnification. The contractor expressly agrees to indemnify

and save harmless the Government, its officers, agents, servants, and

employees from and against any and all claims, loss, damage, injury,

and liability, however caused, resulting from, arising out of, or in

any way connected with the performance of work under this agreement.

Further, it is agreed that any negligence or alleged negligence of the

Government, its officers, agents, servants, and employees, shall not be

a bar to a claim for indemnification unless the act or omission of the

Government, its officers, agents, servants, and employees is the sole,

competent, and producing cause of such claims, loss, damage, injury,

and liability. At the option of the contractor, and subject to the

approval by the contracting officer of the sources, insurance coverage

may be employed as guaranty of indemnification.

(b) Insurance. Satisfactory insurance coverage is a condition

precedent to award of a contract. In general, a successful bidder must

present satisfactory evidence of full compliance with State and local

requirements, or those below stipulated, whichever are the greater.

More specifically, workmen's compensation and employer's liability

coverage will conform to applicable State law requirements for the

service contemplated, whereas general liability and automobile

liability of comprehensive type, shall in the absence of higher

statutory minimums, be required in the amounts per vehicle used of not

less than $200,000 per person and $500,000 per occurrence for bodily

injury and $20,000 per occurrence for property damage. State-approved

sources of insurance coverage ordinarily will be deemed acceptable to

the Department of Veterans Affairs installation, subject to timely

certifications by such sources of the types and limits of the coverages

afforded by the sources to the bidder. (In those instances where

airplane service is to be used, substitute the word ``aircraft'' for

``automobile'' and ``vehicle'' and modify coverage to require aircraft

public and passenger liability insurance of at least $200,000 per

passenger and $500,000 per occurrence for bodily injury, other than

passenger liability, and $200,000 per occurrence for property damage.

Coverage for passenger liability bodily injury shall be at least

$200,000 multiplied by the number of seats or passengers, whichever is

greater.)

(End of clause)

The above Indemnification and Insurance clause would be for use on

vehicle and aircraft service contracts. It is critical that VA

contractors carry appropriate insurance. The insurance protects both VA

and VA beneficiaries using VA services.

Representatives of Contracting Officers

19. 852.270-1, Representatives of Contracting Officers (APR 1984)

The contracting officer reserves the right to designate representatives

to act for him/her in furnishing technical guidance and advice or

generally supervise the work to be performed under this contract. Such

designation will be in writing and will define the scope and limitation

of the designee's authority. A copy of the designation shall be

furnished the contractor.

(End of provision)

The above Representatives of Contracting Officers provision would

be used whenever it may be necessary to designate another individual to

act as the contracting officer's technical representative.

Quantities

20. 852.270-2, Quantities (APR 1984).

The bidder agrees to furnish up to 25 percent more or 25 percent

less than the quantities awarded when ordered by the Department of

Veterans Affairs.

(End of clause)

The above Quantities clause is similar to the clauses under

852.216-70 and would be used in bread and bakery products

solicitations. It requires contractors to provide up to 25 percent

more, or allows VA to order up to 25 percent less, than the estimated

quantities shown in the solicitation. It is proposed for use in

commercial item contracts for bread and bakery products to allow VA

leeway in ordering such products, where exact usage is difficult to

predict.

Shellfish

21. 852.270-3, Shellfish (APR 1984).

The bidder certifies that oysters, clams, and mussels will be

furnished only from plants approved by and operated under the

supervision of shellfish authorities of States whose certifications are

endorsed currently by the U.S. Public Health Service, and the names and

certificate numbers of those shellfish dealers must appear on current

lists published by the U.S. Public Health Service. These items shall be

packed and delivered in approved containers, sealed in such manner that

tampering is easily discernible, and marked with packer's certificate

number impressed or embossed on the side of such containers and

preceded by the State abbreviation. Containers shall be tagged or

labeled to show the name and address of the

[[Page 44937]]

approved producer or shipper, the name of the State of origin, and the

certificate number of the approved producer or shipper.

(End of clause)

The above Shellfish clause specifies minimum standards that

contractors must meet when furnishing shellfish to VA. There are no

similar provisions in the FAR and the clause is proposed for use in

commercial item solicitations for shellfish to ensure that such items

meet minimum Federal standards.

Service Data Manual

The following Service Data Manual clause may be used, in accordance

with the prescriptions contained in the VAAR, in requests for

quotations, solicitations, or contracts for the acquisition of

commercial items of technical medical equipment and devices, provided

the contracting officer determines that use of the clause is consistent

with customary commercial practice. Such use is permitted by FAR

12.301(a)(2).

22. 852.210-70, Service Data Manual (NOV 1984).

(a) The successful bidder will supply operation/service

(maintenance) manuals with each piece of equipment in the quantity

specified in the solicitation and resulting purchase order. As a

minimum, the manual(s) shall be bound and equivalent to the manual(s)

provided the manufacturer's designated field service representative as

well as comply with all the requirements in paragraphs (b) through (i)

of this clause. Sections, headings and section sequence identified in

(b) through (i) of this clause are typical and may vary between

manufacturers. Variances in the sections, headings and section

sequence, however, do not relieve the manufacturer of his/her

responsibility in supplying the technical data called for therein.

(b) Title Page and Front Matter--The title page shall include the

equipment nomenclature, model number, effective date of the manual and

the manufacturer's name and address. If the manual applies to a

particular version of the equipment only, the title page shall also

list that equipment's serial number. Front matter shall consist of the

Table of Contents, List of Tables, List of Illustrations and a

frontispiece (photograph or line drawing) depicting the equipment.

(c) Section I, General Description--This section shall provide a

generalized description of the equipment or devices and shall describe

its purpose or intended use. Included in this section will be a table

listing all pertinent equipment specifications, power requirements,

environmental limitations and physical dimensions.

(d) Section II, Installation--Section II shall provide pertinent

installation information. It shall list all input and output connectors

using applicable reference designators and functional names as they

appear on the equipment. Included in this listing will be a brief

description of the function of each connector along with the connector

type. Instructions shall be provided as to the recommended method of

repacking the equipment for shipment (packing material, labeling, etc.)

(e) Section III, Operation--Section III will fully describe the

operation of the equipment and shall include a listing of each control

with a brief description of its function and step-by-step procedures

for each operating mode. Procedures will use the control(s)

nomenclature as it appears on the equipment and will be keyed to one or

more illustrations of the equipment. Operating procedures will include

any preoperational checks, calibration adjustments and operation tests.

Notes, cautions and warnings shall be set off from the text body so

they may easily be recognizable and will draw the attention of the

reader. Illustrations should be used wherever possible depicting

equipment connections for test, calibration, patient monitoring and

measurements. For large, complex and/or highly versatile equipment

capable of many operating modes and in other instances where the

Operation Section is quite large, operational information may be bound

separately in the form of an Operators Manual. The providing of a

separate Operators manual does not relieve the supplier of his

responsibility for providing the minimum acceptable maintenance data

specified herein.

Where applicable, flow charts and narrative descriptions of

software shall be provided. If programming is either built-in and/or

user modifiable, a complete software listing shall be supplied.

Equipment items with software packages shall also include diagnostic

routines and sample outputs. Submission information shall be given in

the Maintenance Section to identify equipment malfunctions which are

software related.

(f) Section IV, Principles of Operation--This section shall

describe in narrative form the principles of operation of the

equipment. Circuitry shall be discussed in sufficient detail to be

understood by technicians and engineers who possess a working knowledge

of electronics and a general familiarity with the overall application

of the devices. The circuit descriptions should start at the overall

equipment level and proceed to more detailed circuit descriptions. The

overall description shall be keyed to a functional block diagram of the

equipment. Circuit descriptions shall be keyed to schematic diagrams

discussed in paragraph (i) below. It is recommended that for complex or

special circuits, simplified schematics should be included in this

section.

(g) Section V, Maintenance--The maintenance section shall contain a

list of recommended test equipment, special tools, preventive

maintenance instructions and corrective information. The list of test

equipment shall be that recommended by the manufacturer and shall be

designated by manufacturer and model number. Special tools are those

items not commercially available or those that are designed

specifically for the equipment being supplied. Sufficient data will be

provided to enable their purchase by the Department of Veterans

Affairs. Preventive maintenance instructions shall consist of those

recommended by the manufacturer to preclude unnecessary failures.

Procedures and the recommended frequency of performance shall be

included for visual inspection, cleaning, lubricating, mechanical

adjustments and circuit calibration. Corrective maintenance shall

consist of the data necessary to troubleshoot and rectify a problem and

shall include procedures for realigning and testing the equipment.

Troubleshooting shall include either a list of test points with the

applicable voltage levels or waveforms that would be present under a

certain prescribed set of conditions, a troubleshooting chart listing

the symptom, probable cause and remedy, or a narrative containing

sufficient data to enable a test technician or electronics engineer to

determine and locate the probable cause of malfunction. Data shall also

be provided describing the preferred method of repairing or replacing

discrete components mounted on printed circuit boards or located in

areas where special steps must be followed to disassemble the

equipment. Procedures shall be included to realign and test the

equipment at the completion of repairs and to restore it to its

original operating condition. These procedures shall be supported by

the necessary waveforms and voltage levels, and data for selecting

matched components. Diagrams, either photographic or line, shall show

the location of printed circuit board mounted components.

(h) Section VI, Replacement Parts List--The replacement parts list

shall list, in alphanumeric order, all electrical/electronic,

mechanical and

[[Page 44938]]

pneumatic components, their description, value and tolerance, true

manufacturer and manufacturers' part number.

(i) Section VII, Drawings--Wiring and schematic diagrams shall be

included. The drawings will depict the circuitry using standard symbols

and shall include the reference designations and component values or

type designators. Drawings shall be clear and legible and shall not be

engineering or production sketches.

(End of clause)

The following Service Data Manual clause may be used, in accordance

with the prescriptions contained in the VAAR, in requests for

quotations, solicitations, or contracts for the acquisition of

commercial items of mechanical equipment (other than technical medical

equipment and devices), provided the contracting officer determines

that use of the clause is consistent with customary commercial

practice. Such use is permitted by FAR 12.301(a)(2).

23. 852.210-70, Service Data Manual (NOV 1984).

The contractor agrees to furnish two copies of a manual, handbook

or brochure containing operating, installation, and maintenance

instructions (including pictures or illustrations, schematics, and

complete repair/test guides as necessary). Where applicable, it will

include electrical data and connection diagrams for all utilities. The

instructions shall also contain a complete list of all replaceable

parts showing part number, name, and quantity required.

(End of clause)

When the bid or proposal will result in the initial purchase

(including each make and model) of a centrally procured item, the

following clause would be used:

24. 852.210-70, Service Data Manual (NOV 1984).

The contractor agrees, when requested by the contracting officer,

to furnish not more than three copies of the technical documentation

required by paragraph 852.210-70(a) to the Service and Reclamation

Division, VA Supply Depot, Hines, Ill. In addition, the contractor

agrees to furnish two additional copies of the technical documentation

required by 852.210-70(a) with each piece of equipment sold as a result

of the invitation for bid or request for proposal.

(End of clause)

The above clauses concerning service data manuals would be required

in support of VA's equipment acquisitions and equipment repair program.

End-use operators of equipment need operator's manuals to ensure that

the equipment is operated properly and safely and that the equipment is

properly cleaned. VA biomedical engineers repair many of the items of

equipment at VA medical centers and must have the vendor's repair

manuals to accomplish those repairs.

Brand Name or Equal

25. 852.210-77, Brand Name or Equal (NOV 1984).

(Note: as used in this clause, the term brand name includes

identification of products by make and model.)

(a) If items called for by this invitation for bids have been

identified in the schedule by a ``brand name or equal'' description,

such identification is intended to be descriptive, but not restrictive,

and is to indicate the quality and characteristics of products that

will be satisfactory. Bids offering ``equal'' products (including

products of the brand name manufacturer other than the one described by

brand name) will be considered for award if such products are clearly

identified in the bids and are determined by the Government to meet

fully the salient characteristics requirements listed in the

invitation.

(b) Unless the bidder clearly indicates in his bid that he is

offering an ``equal'' product, his bid shall be considered as offering

a brand name product referenced in the invitation for bids.

(c) (1) If the bidder proposes to furnish an ``equal'' product, the

brand name, if any, of the product to be furnished shall be inserted in

the space provided in the Invitation or Bids, or such product shall be

otherwise clearly identified in the bid. The evaluation of bids and the

determination as to equality or the product offered shall be the

responsibility of the Government and will be based on information

furnished by the bidder or identified in his/her bid as well as other

information reasonably available to the purchasing activity.

Caution To Bidders. The purchasing activity is not responsible for

locating or securing any information which is not identified in the bid

and reasonably available to the purchasing activity. Accordingly, to

insure that sufficient information is available, the bidder must

furnish as a part of his/her bid all descriptive material (such as

cuts, illustrations, drawings or other information) necessary for the

purchasing activity to: (i) Determine whether the product offered meets

the salient characteristics requirement of the Invitation for Bids, and

(ii) Establish exactly what the bidder proposes to furnish and what the

Government would be binding itself to purchase by making an award. The

information furnished may include specific references to information

previously furnished or to information otherwise available to the

purchasing activity.

(2) If the bidder proposes to modify a product so as to make it

conform to the requirements of the Invitation for Bids, he/she shall:

(i) Include in his/her bid a clear description of such proposed

modifications, and

(ii) Clearly mark any descriptive material to show the proposed

modifications.

(3) Modifications proposed after bid opening to make a product

conform to a brand name product referenced in the Invitation for Bids

will not be considered.

(End of clause)

Although the FAR expresses a preference for use of performance

specifications on Federal Government solicitations, the use of ``brand

name or equal'' purchase descriptions is often necessary to simplify

and expedite the acquisition process. The General Services

Administration uses a similar clause and the Civilian Agency

Acquisition Council is considering reinstating ``brand name or equal''

provisions in the FAR. Use of ``brand name or equal'' purchase

descriptions is a commercial practice in many industries. If use of a

``brand name or equal'' purchase description is found by the

contracting officer to be a commercial practice for a specific

solicitation, a standard clause should be used to advise bidders/

offerors that such descriptions are not intended to restrict the

acquisition to brand name items. A standard clause would ensure

uniformity and reduce the administrative costs of solicitation

preparation.

Nondiscrimination in Services Provided Beneficiaries

The following clause would be used in all VA requests for

quotations, solicitations and contracts for providing services to

eligible beneficiaries:

26. 852.271-70, Nondiscrimination in Services Provided

Beneficiaries (APR 1984)

The contractor agrees to provide all services specified in this

contract for any person determined eligible by the Under Secretary for

Health, or designee, regardless of the race, color, religion, sex, or

national origin of the person for whom such services are ordered. The

contractor further warrants that he/she will not resort to

subcontracting as a means of circumventing this provision.

[[Page 44939]]

(End of clause)

The above nondiscrimination clause is proposed for use in

commercial item contracts providing services to eligible beneficiaries

to ensure that vendors do not discriminate against VA beneficiaries

based on a veteran's race, color, religion, sex, or national origin.

Miscellaneous

This document proposes to add paragraph 812.301(f) to clarify that

VAAR clauses are not required for use in micro-purchases, but may be

used in micro-purchases at the option of the contracting officer when

use is determined by the contracting officer to be in the Government's

best interest.

This document proposes to add paragraph 812.302, in accordance with

FAR 12.302(c), to provide agency procedures for approval of waivers.

Waivers are required if contracting officers wish to tailor clauses or

otherwise include additional terms and conditions in a solicitation or

contract for commercial items in a manner that is inconsistent with

customary commercial practice for the item being acquired. The criteria

that must be used by the next higher level supervisor in approving the

waiver is set forth at FAR 12.302(c), which provides that the waiver

describe the customary commercial practice found in the marketplace,

support the need to include a term or condition that is inconsistent

with that practice, and include a determination that use of the

customary commercial practice is inconsistent with the needs of the

Government.

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed 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. The adoption of this proposed rule would not cause a

significant effect on any entities. Costs to comply with any of the

provisions of the proposed rule will be minimal. Therefore, pursuant to

5 U.S.C. 605(b), this proposed rule is exempt from the initial and

final regulatory flexibility analysis requirements of sections 603 and

604.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520),

collections of information are contained in a number of the clauses and

provisions set forth in the Supplementary Information portion of this

proposed rule. Although this document proposes to add provisions and

clauses for commercial item solicitations and contracts, this Paperwork

Reduction Act notice of this document seeks approval for collections of

information for both commercial and non-commercial item, service, and

construction solicitations and contracts. The provisions and clauses

are used in both commercial and non-commercial item, service, and

construction solicitations and contracts. As required under section

3507(d) of the Act, VA has submitted a copy of this proposed rulemaking

action to the Office of Management and Budget (OMB) for its review of

the collection of information.

OMB assigns control numbers to collections of information it

approves. VA may not conduct or sponsor, and a person is not required

to respond to, a collection of information unless it displays a

currently valid OMB control number.

Comments on the collection of information should be submitted to

the Office of Management and Budget, Attention: Desk Officer for the

Department of Veterans Affairs, Office of Information and Regulatory

Affairs, Washington, DC 20503, with copies to the Director, Office of

Regulations Management (02D), Department of Veterans Affairs, 810

Vermont Avenue, NW, Washington, DC 20420. Comments should indicate that

they are submitted in response to ``RIN 2900-AI05.''

Title: Commercial and Non-Commercial Items, Services and

Construction.

Title and Provision/Clause Number: 852.219-70, Veteran-Owned Small

Business.

Summary of collection of information: VAAR Provision 852.219-70,

Veteran-Owned Small Business, requests that a firm submitting a

quotation, bid, or offer furnish information regarding whether or not

the firm is a small business owned by a veteran, a Vietnam era veteran,

or a disabled veteran. The information required by this VAAR provision

will be used by VA to identify veteran-owned businesses to ensure

eligible veteran-owned firms are given an opportunity to participate in

VA solicitations for goods and services. Without this information,

there would be no way to properly monitor this program or conduct VA

outreach efforts.

Description of need for information and proposed use of

information: Public Law 93-237 amended the Small Business Act by

directing the U.S. Small Business Administration (SBA) to give

``special consideration'' to veterans of the U.S. Armed Forces in all

SBA programs. In September 1983, VA adopted the ``special

consideration'' philosophy and directed all VA contracting activities

to take affirmative action to solicit and assist Vietnam era and

disabled veteran-owned small businesses to participate in the VA

acquisition process. On April 5, 1990, the Secretary approved an

initiative to expand the Vietnam era and disabled veteran-owned small

business program to include all veteran-owned small businesses. Title

38 United States Code vests the Secretary with broad authority to

assist veterans. The information collected is a self-certification that

a firm is veteran-owned. It allows VA to ensure that eligible veteran-

owned firms are given an opportunity to participate in VA acquisitions

and to monitor our success in implementing these regulatory provisions.

The information requested will be solicited from respondents on a

voluntary basis.

Description of likely respondents: All firms submitting written or

electronic quotations, bids, or offers to VA.

Estimated number of respondents: 3,403,500 written quotations,

bids, or offers.

Estimated frequency of responses: One response for each written

quotation, bid, or offer submitted.

Estimated average burden per collection: 15 seconds.

Estimated total annual reporting and recordkeeping burden: 14,181

hours.

Title and Provision/Clause Number: Provision 852.210-74, Special

Notice.

Summary of collection of information: This provision is used only

in VA's telephone system acquisition solicitations and requires the

contractor, after award of the contract, to submit descriptive

literature on the equipment the contractor intends to furnish to show

how that equipment meets the specification requirements of the

solicitation.

Description of need for information and proposed use of

information: The information is needed to ensure that the equipment

proposed by the contractor meets the specification requirements.

Failure to require the information could result in the installation of

equipment that does not meet contract requirements, with significant

loss to the contractor if the contractor subsequently had to remove the

equipment and furnish equipment that did meet the specification

requirements.

Description of likely respondents: Firms awarded VA contracts for

telephone systems.

Estimated number of respondents: 30 per year.

Estimated frequency of responses: Once for each contract awarded.

Estimated average burden per collection: 5 hours.

[[Page 44940]]

Estimated total annual reporting and recordkeeping burden: 150

hours.

Title and Provision/Clause Number: Provision 852.210-75, Technical

Industry Standards.

Summary of collection of information: This provision requires that

items offered for sale to VA under the solicitation conform to certain

technical industry standards, such as Underwriters Laboratory (UL) or

the National Fire Protection Association, and that the contractor

furnish evidence to VA that the items meet that requirement. The

evidence is normally in the form of a tag or seal affixed to the item,

such as the UL tag on an electrical cord or a tag on a fire-rated door.

This requires no additional effort on the part of the contractor, as

the items come from the factory with the tags already in place, as part

of the manufacturer's standard manufacturing operation. Occasionally,

for items not already meeting standards or for items not previously

tested, a contractor will have to furnish a certificate from an

acceptable laboratory certifying that the items furnished have been

tested in accordance with, and conform to, the specified standards.

Only those firms required to submit a separate certificate are noted

below.

Description of need for information and proposed use of

information: To ensure that the items being furnished meet minimum

safety standards and to protect VA employees, VA beneficiaries, and the

public.

Description of likely respondents: Firms whose products have not

previously been tested to ensure the products meet the industry

standards required under the solicitation.

Estimated number of respondents: 100.

Estimated frequency of responses: Once for each contract awarded.

Estimated average burden per collection: 30 minutes.

Estimated total annual reporting and recordkeeping burden: 50

hours.

Title and Provision/Clause Number: Provision 852.214-70, Caution to

Bidders--Bid Envelopes.

Summary of collection of information: This provision advises

bidders/offerors that it is their responsibility to insure that their

bid price cannot be ascertained by anyone prior to bid opening. It also

advises bidders/offerors to identify their bids by showing the

invitation number and bid opening date on the outside of the bid

envelope. A bid envelope or a label is often furnished by the

Government for use by bidders/offers to identify their bids.

Description of need for information and proposed use of

information: The information is needed by the Government to identify

which parcels of mail are bids/offers and which are other routine mail

without having to open the envelopes to identify their intent and

possibly exposing bid/offer prices before bid opening. The information

will be used to identify which parcels of mail are bids and which are

other routine mail. The information is also needed to help ensure that

bids/offers are delivered to the proper bid opening room on time and

prior to bid opening.

Description of likely respondents: All firms submitted sealed bids.

Estimated number of respondents: 346,000.

Estimated frequency of responses: Once for each sealed bid/offer

submitted.

Estimated average burden per collection: 10 seconds.

Estimated total annual reporting and recordkeeping burden: 960

hours.

Title and Provision/Clause Number: Clause 852.237-71,

Indemnification and Insurance.

Summary of collection of information: This clause is used in

solicitations for vehicle or aircraft services. It requires the

apparent successful bidder/offeror, prior to contract award, to furnish

evidence that the firm possesses the types and amounts of insurance

required by the solicitation. This evidence is in the form of a

certificate from the firm's insurance company.

Description of need for information and proposed use of

information: The information is required to protect VA by ensuring that

the firm to which award will be made possesses the types and amounts of

insurance required by the solicitation. It helps ensure that VA will

not be held liable for any negligent acts of the contractor and ensures

that VA beneficiaries and the public are protected by adequate

insurance coverage.

Description of likely respondents: Apparent successful bidders/

offerors on solicitations for vehicle or aircraft services.

Estimated number of respondents: 500.

Estimated frequency of responses: Once for each contract awarded.

Estimated average burden per collection: 30 minutes.

Estimated total annual reporting and recordkeeping burden: 250

hours.

Title and Provision/Clause Number: Provision 852.270-3, Shellfish.

Summary of collection of information: This provision requires that

a firm furnishing shellfish to VA must ensure that the shellfish is

packaged in a container that is marked with the packer's State

certificate number and State abbreviation. In addition, the firm must

ensure that the container is tagged or labeled to show the name and

address of the approved producer or shipper, the name of the State of

origin, and the certificate number of the approved producer or shipper.

This information normally accompanies the shellfish from the packer and

is not information that must be separately obtained by the seller.

Description of need for information and proposed use of

information: The information is needed to ensure that shellfish

purchased by VA comes from a State- and Federal-approved and inspected

source. The information is used to help ensure that VA purchases

healthful shellfish.

Description of likely respondents: Any firm selling shellfish to

VA.

Estimated number of respondents: 1,000.

Estimated frequency of responses: Once for each shipment of

shellfish.

Estimated average burden per collection: 1 minute.

Estimated total annual reporting and recordkeeping burden: 17

hours.

Title and Provision/Clause Number: Clause 852.210-70, Service Data

Manual.

Summary of collection of information: When VA purchases technical

medical equipment and devices, or mechanical equipment, VA also

requires the contractor to furnish both operators manuals and

maintenance/repair manuals. This clause sets forth those requirements

and sets forth the minimum standards those manuals must meet to be

acceptable. Generally, this is the same operator's manual furnished

with each piece of equipment sold to the general public and the same

repair manual used by company technicians in repairing the company's

equipment. The cost of the manuals is included in the contract price or

listed as a separately priced line item on the purchase order.

Description of need for information and proposed use of

information: The operator's manual will be used by the individual

actually operating the equipment to ensure proper operation and

cleaning. The repair manual will be used by VA equipment repair staff

to repair the equipment.

Description of likely respondents: Firms selling technical medical

equipment or devices or mechanical equipment to VA.

Estimated number of respondents: 15,000.

Estimated frequency of responses: Once for each contract awarded.

Estimated average burden per collection: 10 minutes.

[[Page 44941]]

Estimated total annual reporting and recordkeeping burden: 2,500

hours.

Title and Provision/Clause Number: 852.210-77, Brand Name or Equal.

Summary of collection of information: This clause advises bidders

or offerors who are proposing to offer an item that is alleged to be

equal to the brand name item stated in the bid, that it is the bidder's

or offeror's responsibility to show that the item offered is in fact,

equal to the brand name item. This evidence may be in the form of

descriptive literature or material, such as cuts, illustrations,

drawings, or other information. While submission of the information is

voluntary, failure to provide the information may result in rejection

of the firm's bid or offer if the Government cannot otherwise determine

that the item offered is equal.

Description of need for information and proposed use of

information: The information will be used by the contracting officer to

evaluate whether or not the item offered meets the specification

requirements.

Description of likely respondents: Any firm offering an ``equal''

item on a solicitation requesting bids or offers on a ``brand name or

equal'' basis.

Estimated number of respondents: 10,000.

Estimated frequency of responses: Once for each solicitation on

which the firm is proposed an ``equal'' item.

Estimated average burden per collection: 5 minutes.

Estimated total annual reporting and recordkeeping burden: 833

hours.

The Department considers comments by the public on proposed

collections of information in--

Evaluating whether the proposed collections of information

are necessary for the proper performance of the functions of the

Department, including whether the information will have practical

utility;

Evaluating the accuracy of the Department's estimate of

the burden of the proposed collections of information, including the

validity of the methodology and assumptions used;

Enhancing the quality, usefulness, and clarity of the

information to be collected; and

Minimizing the burden of the collections of information on

those who are to respond, including through the use of appropriate

automated, electronic, mechanical, or other technological collection

techniques or other forms of information technology, e.g., permitting

electronic submission of responses.

OMB is required to make a decision concerning the proposed

collection of information contained in this proposed rule between 30

and 60 days after publication of this document in the Federal Register.

Therefore, a comment to OMB is best assured of having its full effect

if OMB receives it within 30 days of publication. This does not affect

the deadline for the public to comment on the proposed regulation.

List of Subjects

48 CFR Parts 810, 811, and 812

Government procurement.

48 CFR Parts 836 and 852

Government procurement, Reporting and recordkeeping requirements.

48 CFR Part 870

Asbestos, Frozen foods, Government procurement, Telecommunications.

Approved: August 8, 1997.

Hershel W. Gober,

Secretary-Designate of Veterans Affairs.

For the reasons set forth in the preamble, and consistent with the

authority in 38 U.S.C. 501 and 40 U.S.C. 486(c), 48 CFR Chapter 8 is

proposed to be amended as follows:

PART 801--VETERANS AFFAIRS ACQUISITION REGULATIONS SYSTEM

1. The authority citation for parts 812, 836, and 852 continues to

read as follows:

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

PART 810--[REMOVED]

2. Part 810 is removed.

3. Part 811 is added to read as follows:

PART 811--DESCRIBING AGENCY NEEDS

Sec.

811.001 Definitions.

Subpart 811.1--Selecting and Developing Requirements Documents

811.104 Items particular to one manufacturer.

811.104-70 Purchase descriptions.

811.104-71 Bid evaluation and award.

811.104-72 Procedure for negotiated procurements.

Subpart 811.2--Using and Maintaining Requirements Documents

811.202 Maintenance of standardization documents.

811.204 Solicitation provisions and contract clauses.

Subpart 811.4--Delivery or Performance Schedules

811.404 Contract clauses.

Subpart 811.5--Liquidated Damages

811.502 Policy.

811.504 Contract clauses.

Subpart 811.6--Priorities and Allocations

811.602 General.

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

811.001 Definitions.

(a) Brand name product means a commercial product described by

brand name and make or model number or other appropriate nomenclature

by which such product is offered for sale to the public by the

particular manufacturer, producer or distributor.

(b) Salient characteristics are those particular characteristics

that specifically describe the essential physical and functional

features of the material or service required. They are those essential

physical or functional features which are identified in the

specifications as a mandatory requirement which a proposed ``equal''

product or material must possess in order for the bid to be considered

responsive. Bidders must furnish all descriptive literature and bid

samples required by the solicitation to establish such ``equality''.

Subpart 811.1--Selecting and Developing Requirements Documents

811.104 Items particular to one manufacturer.

(a) Specifications shall be written in accordance with FAR 11.002

unless otherwise justified by the specification writer and approved by

the contracting officer as described in paragraph (b) of this section.

The contract file shall be documented accordingly.

(b) When it is determined that a particular physical or functional

characteristic of only one product will meet the minimum requirements

of the Department of Veterans Affairs (see FAR 11.104) or that a

``brand name or equal'' purchase description will be used, the

specification writer, whether agency personnel, architect-engineer, or

consultant with which the Department of Veterans Affairs has

contracted, shall separately identify the item(s) to the contracting

officer and provide a full written justification of the reason the

particular characteristic is essential to the Government's requirements

or why the ``brand name or equal'' purchase description is necessary.

The contracting officer shall make the final determination whether

restrictive specifications or ``brand name or equal'' purchase

descriptions will be included in the solicitation.

(c) Purchase descriptions that contain references to one or more

brand name products may be used only in accordance with 811.104-70,

811.104-71, and 811.104-72. In addition,

[[Page 44942]]

purchase descriptions that contain references to one or more brand name

products shall be followed by the words ``or equal,'' except when the

acquisition is fully justified under FAR 6.3 and (VAAR) 48 CFR 806.3.

Acceptable brand name products should be listed in the solicitation.

Where a ``brand name or equal'' purchase description is used,

prospective contractors must be given the opportunity to offer products

other than those specifically referenced by brand name if such other

products are determined by the Government to fully meet the salient

characteristics listed in the invitation. The contract file will be

documented in accordance with paragraph (b) of this section, justifying

the need for use of a brand name or equal description.

(d) ``Brand name or equal'' purchase descriptions shall set forth

those salient physical, functional, or other characteristics of the

referenced products which are essential to the minimum needs of the

Government. For example, when interchangeability of parts is required,

such requirement should be specified. Purchase descriptions shall

contain the following information to the extent available and include

such other information as is necessary to describe the item required:

(1) Complete common generic identification of the item required;

(2) Applicable model, make or catalog number for each brand name

product referenced, and identity of the commercial catalog in which it

appears; and

(3) Name of manufacturer, producer or distributor of each brand

name product referenced (and address if not well known).

(e) When necessary to describe adequately the item required, an

applicable commercial catalog description or pertinent extract may be

used if such description is identified in the solicitation as being

that of the particular named manufacturer, producer or distributor. The

contracting officer will insure that a copy of any catalogs referenced

(except parts catalogs) is available on request for review by bidders

at the purchasing office.

(f) Except as noted in paragraph (d) of this section, purchase

descriptions shall not include either minimum or maximum restrictive

dimensions, weights, materials or other salient characteristics which

are unique to a brand name product or which would tend to eliminate

competition or other products which are only marginally outside the

restrictions. However, purchase description may include restrictive

dimensions, weights, materials or other salient characteristic if such

restrictions are determined in writing by the user to be essential to

the Government's requirements, the brand name of the product is

included in the purchase description, and all other determinations

required by 811.104 are made.

811.104-70 Purchase descriptions.

(a) When any purchase description, including a ``brand name or

equal'' purchase description, is used in a solicitation for a supply

contract to describe required items of mechanical equipment, the

solicitation will include the clauses in 852.211-70 (Service Data

Manual) and in 852.211-71 (Guarantee).

(b) Solicitations using ``brand name or equal'' purchase

descriptions will contain the ``brand name or equal'' clause in

852.211-77, and the provision set forth at FAR 52.214-21, Descriptive

Literature. Contracting officers are cautioned to review the

requirements at FAR 14.202-5(d) when utilizing the descriptive

literature provision.

(c) Except as provided in 811.104-70(d), when a ``brand name or

equal'' purchase description is included in an invitation for bids, the

following shall be inserted after each item so described in the

solicitation, for completion by the bidder:

Bidding on:

Manufacturer name------------------------------------------------------

Brand------------------------------------------------------------------

No.--------------------------------------------------------------------

(d) (1) When component parts of an end item are described in the

solicitation by a ``brand name or equal'' purchase description and the

contracting officer determines that the clause in 811.104-70(b) is

inapplicable to such component parts, the requirements of 811.104-70(c)

shall not apply with respect to such component parts. In such cases, if

the clause is included in the solicitation for other reasons, a

statement substantially as follows also shall be included:

The clause entitled ``Brand Name or Equal'' does not apply to

the following component parts (list the component parts to which the

clause does not apply): and

(2) In the alternative, if the contracting officer determines that

the clause in 811.104-70(b) shall apply to only certain such component

parts, the requirements of 811.104-70(c) shall apply to such component

parts and a statement substantially as follows also shall be included:

The clause entitled ``Brand Name or Equal'' applies to the

following component parts (list the component parts to which the

clause applies):

(e) When a solicitation contains ``brand name or equal'' purchase

descriptions, bidders who offer brand name products, including

component parts, referenced in such descriptions shall not be required

to furnish bid samples of the referenced brand name products. However,

solicitations may require the submission of bid samples in the case of

bidders offering ``or equal'' products. If bid samples are required,

the solicitation shall include the provision set forth at FAR 52.214-

20, Bid Samples. The bidder must still furnish all descriptive

literature in accordance with and for the purpose set forth in the

``Brand Name or Equal'' clause, 852.211-77(c)(1) and (2), even though

bid samples may not be required.

811.104-71 Bid evaluation and award.

(a) Bids offering products that differ from brand name products

referenced in a ``brand name or equal'' purchase description shall be

considered for award when the contracting officer determines in

accordance with the terms of the clause at 852.211-77 that the offered

products are clearly identified in the bids and are equal in all

material respects to the products specified.

(b) Award documents shall identify, or incorporate by reference, an

identification of the specific products which the contractor is to

furnish. Such identification shall include any brand name and make or

model number, descriptive material, and any modifications of brand name

products specified in the bid. Included in this requirement are those

instances when the descriptions of the end items contain ``brand name

or equal'' purchase descriptions of component parts or of accessories

related to the end item, and the clause at 852.211-77 was applicable to

such component parts or accessories (see 811.104-70(d)(2)).

811.104-72 Procedure for negotiated procurements.

(a) The policies and procedures prescribed in 811.104-70 and

811.104-71 should be used as a guide in developing adequate purchase

descriptions for negotiated procurements.

(b) The clause at 852.211-77 may be adapted for use in negotiated

procurements. If use of the clause is not practicable (as may be the

case in unusual and compelling urgency purchases), suppliers shall be

suitably informed that proposals offering products different from the

products referenced by brand name will be considered if the contracting

officer

[[Page 44943]]

determines that such offered products are equal in all material

respects to the products referenced.

Subpart 811.2--Using and Maintaining Requirements Documents

811.202 Maintenance of standardization documents.

(a) Military and departmental specifications. Contracting officers

may, when they deem it to be advantageous to the Department of Veterans

Affairs, utilize these specifications when procuring supplies and

equipment costing less than the simplified acquisition threshold.

However, when purchasing items of perishable subsistence, contracting

officers shall observe only those exemptions set forth in paragraphs

(b)(3) and (b)(4) of this section.

(b) Nutrition and food service specifications. (1) The Department

of Veterans Affairs has adopted for use in the procurement of

packinghouse products, the purchase descriptions and specifications set

forth in the Institutional Meat Purchase Specifications (IMPS), and the

IMPS General Requirements, which have been developed by the U.S.

Department of Agriculture. Purchase descriptions and specifications for

dairy products, poultry, eggs, fresh and frozen fruits and vegetables,

as well as certain packinghouse products selected from the IMPS

especially for Department of Veterans Affairs use, are contained in the

Federal Hospital Subsistence Guide. A copy of this guide and the IMPS

may be obtained from any Department of Veterans Affairs contracting

officer.

(2) Contract terms and conditions governing the procurement of

subsistence items are listed in the Federal Hospital Subsistence Guide

and IMPS. These provisions shall be made a part of each solicitation

for such items when applicable.

(3) The military specifications for meat and meat products

contained in the Federal Hospital Subsistence Guide shall be used by

the Department of Veterans Affairs only when purchasing such items of

subsistence from the Defense Logistics Agency (DLA). Military

specifications for poultry, eggs, and egg products contained in the

Federal Hospital Subsistence Guide may be used when purchasing either

from DLA or from local dealers.

(4) Except as authorized in part 846 of this chapter, contracting

officers shall not deviate from the specifications contained in the

Federal Hospital Subsistence Guide and the IMPS without prior approval

of the Deputy Assistant Secretary for Acquisition and Materiel

Management.

(5) Items of meat, cured pork and poultry not listed in either the

Federal Hospital Subsistence Guide or the IMPS, will not be purchased

without prior approval of the Deputy Assistant Secretary for

Acquisition and Materiel Management.

(c) Department of Veterans Affairs specifications. (1) The

Director, Publications Service, is responsible for developing,

publishing, and distributing Department of Veterans Affairs

specifications covering printing and binding.

(2) Department of Veterans Affairs specifications, as they are

revised, are placed in stock in the VA Forms and Publications Depot.

Facility requirements for these specifications will be requisitioned

from that source.

(d) Government paper specification standards. (1) Invitations for

bids, requests for proposals, purchase orders, or other procurement

instruments covering the purchase of paper stocks to be used in

duplicating or printing, or which specify the paper stocks to be used

in buying printing, binding, or duplicating, will require that such

paper stocks be in accordance with the Government Paper Specification

Standards issued by the Joint Committee on Printing of Congress.

(2) All binding or rebinding of books, magazines, pamphlets,

newspapers, slip cases and boxes will be procured in accordance with

Government Printing Office (GPO) specifications and will be procured

from the servicing GPO Regional Printing Procurement Office or, when

appropriate, from commercial sources.

(3) There are three types of binding/rebinding:

(i) Class A (hard cover);

(ii) Perfect (glued); and

(iii) Lumbinding (sewn). The most suitable type of binding will be

procured to satisfy the requirements, based upon the intended use of

the bound material.

811.204 Solicitation provisions and contract clauses.

Specifications. When product specifications are cited in an

invitation for bids or requests for proposals, the citation shall

include desired options and shall conform to the following:

Shall be type__________, grade __________, in accordance with

(type of specification) No. __________, dated __________ and

amendment __________ dated __________ except paragraphs __________

and __________ which are amended as follows:

Subpart 811.4--Delivery or Performance Schedules

811.404 Contract clauses.

When delivery is required by or on a particular date, the time of

delivery clause set forth in FAR 52.211-8 as it relates to f.o.b.

destination contracts will state that the delivery date specified is

the date by which the shipment is to be delivered, not the shipping

date. In f.o.b. origin contracts, the clause will state that the date

specified is the date shipment is to be accepted by the carrier.

Subpart 811.5--Liquidated Damages

811.502 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 FAR 11.502. In making this decision, consideration will be

given to whether the necessity for timely delivery or performance as

required in the contract schedule is so critical that a probable

increase in contract price is justified. Liquidated damages provisions

will not be included as insurance against selection of a non-

responsible bidder, as a substitute for efficient contract

administration, or as a penalty for failure to perform on time.

811.504 Contract clauses.

When the liquidated damages clause prescribed in FAR 52.211-11 or

52.211-12 is to be used and where partial performance may be utilized

to the advantage of the Government, the clause in 852.211-78 will be

included in the contract.

Subpart 811.6--Priorities and Allocations

811.602 General.

(a) Priorities and allocations of critical materials are controlled

by the Department of Commerce. Essentially, such priorities and

allocations are restricted to projects having a direct connection with

supporting current defense needs. The Department of Veterans Affairs is

not authorized to assign a priority rating to its purchase orders or

contracts involving the acquisition or use of critical materials.

(b) In those instances where it has been technically established

that it is not feasible to use a substitute material, the Department of

Commerce has agreed to assist us in obtaining critical materials for

maintenance and repair projects. They will also, where possible, render

assistance in connection with the purchase of new items, which may be

in

[[Page 44944]]

short supply because of their use in connection with the defense

effort.

(c) Contracting officers having problems in acquiring critical

materials will ascertain all the facts necessary to enable the

Department of Commerce to render assistance to the Department of

Veterans Affairs in acquiring these materials. The contracting officer

will submit a request for assistance containing the following

information to the Deputy Assistant Secretary for Acquisition and

Materiel Management (90):

(1) A description of the maintenance and repair project or the new

item, whichever is applicable;

(2) The critical material and the amount required;

(3) The contractor's sources of supply, including any addresses. If

the source is other than the manufacturer or producer, also list the

name and address of the manufacturer or producer;

(4) The Department of Veterans Affairs contract or purchase order

number;

(5) The contractor's purchase order number, if known, and the

delivery time requirement as stated in the solicitation or offer;

(6) The additional time the contractor claims will be necessary to

effect delivery if priority assistance is not provided;

(7) The nature and extent of the emergency that will be generated

at the station, e.g.,

(i) 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; and

(8) If applicable, a statement that the item required is for use in

a construction contract which was authorized by the Chief Facilities

Management Officer, Office of Facilities Management, to be awarded and

administered by the facility contracting officer.

4. Part 812 is revised to read as follows:

PART 812--ACQUISITION OF COMMERCIAL ITEMS

Subpart 812.3--Solicitation Provisions and Contract Clauses for the

Acquisition of Commercial Items

812.301 Solicitation provisions and contract clauses for the

acquisition of commercial items.

(a) Notwithstanding prescriptions contained elsewhere in this

chapter, when acquiring commercial items, contracting officers shall be

required to use only those provisions and clauses prescribed in this

part.

(b) The provision and clause in the following VAAR sections shall

be used, in accordance with the prescriptions contained therein or

elsewhere in this chapter, in requests for quotations, solicitations,

or contracts for the acquisition of commercial items:

(1) 852.219-70, Veteran-owned small business.

(2) 852.270-4, Commercial advertising.

(c) The provisions and clauses in the following VAAR sections shall

be used, when appropriate, in accordance with the prescriptions

contained therein or elsewhere in this chapter, in requests for

quotations, solicitations, or contracts for the acquisition of

commercial items:

(1) 852.211-71, Guarantee clause.

(2) 852.211-72, Inspection.

(3) 852.211-73, Frozen processed foods.

(4) 852.211-74, Telecommunications equipment.

(5) 852.211-75, Technical industry standards.

(6) 852.214-70, Caution to bidders-bid envelopes.

(7) 852.216-70, Estimated quantities for requirements contracts.

(8) 852.229-70, Purchases from patient's funds.

(9) 852.229-71, Purchases for patients using Government funds and/

or personal funds of patients.

(10) 852.233-70, Protest content.

(11) 852.237-70, Contractor responsibilities.

(12) 852.237-71, Indemnification and insurance (vehicle and

aircraft service contracts).

(13) 852.270-1, Representatives of contracting officers.

(14) 852.270-2, Bread and bakery products.

(15) 852.270-3, Purchase of shell fish.

(d) The clauses in the following VAAR sections shall be used, when

appropriate, in accordance with the prescriptions contained therein or

elsewhere in this chapter, in requests for quotations, solicitations,

or contracts for the acquisition of commercial items, provided the

contracting officer determines that use of the clauses is consistent

with customary commercial practices.

(1) 852.211-70, Requirements for operating and maintenance manuals.

(2) 852.211-77, Brand name or equal.

(e) The contracting officer shall insert the clause in 852.271-70,

Services provided eligible beneficiaries, by reference, in all requests

for quotations, solicitations, and contracts meeting the prescription

contained therein.

(f) Clauses are not required for micro-purchases using the

procedures of this part or part 813. However, this does not prohibit

the use of any clause prescribed in this part or elsewhere in this

chapter in micro-purchases when determined by the contracting officer

to be in the Government's best interest.

812.302 Tailoring of provisions and clauses for the acquisition of

commercial items.

Agency procedures for approval of waivers: Waivers to tailor

solicitations in a manner that is inconsistent with customary

commercial practice shall be prepared by contracting officers in

accordance with FAR 12.302(c). Waiver requests shall be submitted to

the contracting officer's next higher level supervisor for approval.

Approved requests shall be retained in the contract file.

PART 836--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

836.202 [Amended]

5. In part 836, Sec. 836.202(a) is amended by removing ``part 810''

and adding, in its place, ``part 811''.

836.206 [Amended]

6. In part 836, Sec. 836.206 is amended by removing ``812.202'' and

adding, in its place, ``811.502''; by removing ``852.212-70'' and

adding, in its place, ``852.211-78''; and by removing ``52.212-5'' and

adding, in its place, ``52.211-12''.

PART 852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

7. Part 852 is amended by redesignating the following sections as

set forth below:

------------------------------------------------------------------------

Old section New section

------------------------------------------------------------------------

852.210-70................................................ 852.211-70

852.210-71................................................ 852.211-71

852.210-72................................................ 852.211-72

852.210-73................................................ 852.211-73

852.210-74................................................ 852.211-74

852.210-75................................................ 852.211-75

852.210-76................................................ 852.211-76

------------------------------------------------------------------------

852.210-77 [Redesignated as 852.211-77]

8. In part 852, Sec. 852.210-77 is redesignated as Sec. 852.211-77

and the introductory text is amended by removing ``810.004'' and

adding, in its place, ``811.104''.

852.212-70 [Redesignated as 852.211-78]

9. In part 852, Sec. 852.212-70 is redesignated as Sec. 852.211-78,

and the introductory text is amended by

[[Page 44945]]

removing ``812.204'' and adding, in its place, ``811.504''.

852.219-70 [Amended]

10. In part 852, Sec. 852.219-70 introductory text is amended by

removing ``819.7003(a)'' and adding, in its place, ``819.7003(b)''.

852.229-70 [Amended]

11. In part 852, Sec. 852.229-70 introductory text is amended by

adding ``or, if the contract is for commercial items, in lieu of

paragraph (k), Taxes, in FAR clause 52.212-4'' immediately after ``in

FAR 52.229-1''.

852.229-71 [Amended]

12. In part 852, Sec. 852.229-71 introductory text is amended by

adding ``or, if the contract is for commercial items, as an addendum to

FAR clause 52.212-4'' immediately after ``in FAR 52.229-1''.

852.271-70 [Amended]

13. In part 852, Sec. 852.271-70 is amended by removing ``Chief

Medical Director'' and adding, in its place, ``Under Secretary for

Health''.

PART 870--SPECIAL PROCUREMENT CONTROLS

14. The authority citation for part 870 is revised to read as

follows:

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

870.112 [Amended]

15. In part 870, Sec. 870.112, paragraph (a) is amended by removing

``852.210-74'' and adding, in its place, ``852.211-74'', Footnote 1 is

amended by removing ``Veterans Administration'' and adding, in its

place, ``Department of Veterans Affairs'', paragraph (b) is amended by

removing ``852.210-74'' and adding, in its place, ``852.211-74'', by

removing ``the Office of Information Resources Operations'' and adding,

in its place, ``Telecommunications Support Service''; by removing

``(93)'' each time it appears in paragraphs (b) and (c)(1) and adding,

in its place, ``, Acquisition Administration Team''.

[FR Doc. 97-21869 Filed 8-22-97; 8:45 am]

BILLING CODE 8320-01-P