3 - 2020-07799 AQ38(P) 85 FR 21811 FRN April 20, 2020

Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules
health or environmental effects, using
practicable and legally permissible
methods, under Executive Order 12898
(59 FR 7629, February 16, 1994).
In addition, the SIP is not approved
to apply on any Indian reservation land
or in any other area where EPA or an
Indian tribe has demonstrated that a
tribe has jurisdiction. In those areas of
Indian country, this rule does not have
tribal implications as specified by
Executive Order 13175 (65 FR 67249,
November 9, 2000), because
redesignation is an action that affects
the status of a geographical area and
does not impose any new regulatory
requirements on tribes, impact any
existing sources of air pollution on
tribal lands, nor impair the maintenance
of ozone national ambient air quality
standards in tribal lands.
List of Subjects
40 CFR Part 52
Environmental protection, Air
pollution control, Incorporation by
reference, Intergovernmental relations,
Oxides of nitrogen, Ozone, Volatile
organic compounds.
40 CFR Part 81
Environmental protection, Air
pollution control, National parks,
Wilderness areas.
Dated: April 13, 2020.
Kurt Thiede,
Regional Administrator, Region 5.
[FR Doc. 2020–08031 Filed 4–17–20; 8:45 am]
BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Medicare & Medicaid
Services
42 CFR Parts 431, 433, 435, 441, and
483
[CMS–2418–N]
RIN 0938–AT95

Medicaid Program; Preadmission
Screening and Resident Review;
Extension of Comment Period
Centers for Medicare &
Medicaid Services (CMS), HHS.
ACTION: Proposed rule; Extension of
comment period.

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AGENCY:

This document extends the
comment period for the proposed rule
entitled ‘‘Medicaid Program;
Preadmission Screening and Resident
Review’’ that appeared in the February
20, 2020 Federal Register. The comment

SUMMARY:

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period for the proposed rule, which
would end on April 20, 2020, is
extended 30 days to May 20, 2020.
DATES: The comment period for the
proposed rule (85 FR 9990) is extended
to 5 p.m., eastern daylight time, on May
20, 2020.
ADDRESSES: You may submit comments
as outlined in the February 20, 2020
proposed rule (85 FR 9990). Please
choose only one method listed.
FOR FURTHER INFORMATION CONTACT:
Anne Blackfield, (410) 786–8518.
SUPPLEMENTARY INFORMATION: In the
‘‘Medicaid Program; Preadmission
Screening and Resident Review’’
proposed rule that appeared in the
February 20, 2020 Federal Register (85
FR 9990), we solicited public comments
on proposed policies that aim to
modernize the requirements for
Preadmission Screening and Resident
Review (PASRR), currently referred to
in regulation as Preadmission Screening
and Annual Resident Review, by
including statutory changes, reflecting
updates to diagnostic criteria for mental
illness and intellectual disability,
reducing duplicative requirements and
other administrative burdens on State
PASRR programs, and making the
process more streamlined and personcentered.
Since the issuance of the proposed
rule, the United States and its citizens
have endured a dramatic upheaval to
our way of life as a result of the COVID–
19 global pandemic. The federal and
state governments, as well as private
businesses, have made drastic but
necessary decisions to restrict access to
buildings, businesses, and
transportation to slow the spread of the
disease. As a result, many workplaces
are dealing with changed priorities, new
work procedures, and a limited
workforce. We acknowledge the
difficulties the current situation
presents, including the limited ability of
states and stakeholders to analyze and
respond to our proposed rule. To
maximize the opportunity for the public
to provide meaningful input to CMS, we
believe that it is important to allow
additional time for the public to prepare
comments on the proposed rule. In
addition, we believe that granting an
extension to the public comment period
in this instance would further our
overall objective to obtain public input
on the proposed provisions to
modernize PASRR requirements.
Therefore, we are extending the
comment period for the proposed rule
for an additional 30 days.
The Administrator of the Centers for
Medicare & Medicaid Services (CMS),
Seema Verma, having reviewed and

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approved this document, authorizes
Evell J. Barco Holland, who is the
Federal Register Liaison, to
electronically sign this document for
purposes of publication in the Federal
Register.
Evell J. Barco Holland,
Federal Register Liaison, Department of
Health and Human Services.
[FR Doc. 2020–08329 Filed 4–17–20; 8:45 am]
BILLING CODE 4120–01–P

DEPARTMENT OF VETERANS
AFFAIRS
48 CFR Parts 802, 809, 841, 842, and
852
RIN 2900–AQ38

VA Acquisition Regulation: Contractor
Qualifications; Acquisition of Utility
Services; and Contract Administration
and Audit Services
Department of Veterans Affairs.
Proposed rule.

AGENCY:
ACTION:

The Department of Veterans
Affairs (VA) is proposing to amend and
update its VA Acquisition Regulation
(VAAR) in phased increments to revise
or remove any policy superseded by
changes in the Federal Acquisition
Regulation (FAR), to remove any
procedural guidance internal to VA into
the VA Acquisition Manual (VAAM),
and to incorporate any new agency
specific regulations or policies. These
changes seek to streamline and align the
VAAR with the FAR and remove
outdated and duplicative requirements
and reduce burden on contractors. The
VAAM incorporates portions of the
removed VAAR as well as other internal
agency acquisition policy. VA will
rewrite certain parts of the VAAR and
VAAM, and as VAAR parts are
rewritten, will publish them in the
Federal Register. VA will combine
related topics, as appropriate. This
rulemaking revises VAAR coverage
concerning Contractor Qualifications,
Acquisition of Utility Services, and
Contract Administration and Audit
Services, as well as affected parts
concerning Definitions of Words and
Terms and Solicitation Provisions and
Contract Clauses.
DATES: Comments must be received on
or before June 19, 2020 to be considered
in the formulation of the final rule.
ADDRESSES: Written comments may be
submitted through
www.Regulations.gov; by mail or handdelivery to Director, Office of Regulation
Policy and Management (00REG),
Department of Veterans Affairs, 810
SUMMARY:

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Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules

Vermont Avenue NW, Room 1064,
Washington, DC 20420; or by fax to
(202) 273–9026. Comments should
indicate that they are submitted in
response to ‘‘RIN 2900–AQ38—VA
Acquisition Regulation: Contractor
Qualifications; Acquisition of Utility
Services; and Contract Administration
and Audit Services.’’ Copies of
comments received will be available for
public inspection in the Office of
Regulation Policy and Management,
Room 1064, between the hours of 8:00
a.m. and 4:30 p.m., Monday through
Friday (except holidays). Please call
(202) 461–4902 for an appointment.
(This is not a toll-free number.) In
addition, during the comment period,
comments may be viewed online
through the Federal Docket Management
System (FDMS) at www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Mr.
Rafael Taylor, Senior Procurement
Analyst, Procurement Policy and
Warrant Management Services, 003A2A,
425 I Street NW, Washington, DC 20001,
(202) 382–2787. (This is not a toll-free
number.)
SUPPLEMENTARY INFORMATION:

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Background
This rulemaking is issued under the
authority of the Office of Federal
Procurement Policy (OFPP) Act which
provides the authority for an agency
head to issue agency acquisition
regulations that implement or
supplement the FAR.
VA is proposing to revise the VAAR
to add new policy or regulatory
requirements and to remove any
redundant guidance and guidance that
is applicable only to VA’s internal
operating processes or procedures.
Codified acquisition regulations may be
amended and revised only through
rulemaking. All amendments, revisions
and removals have been reviewed and
concurred with by VA’s Integrated
Product Team of agency stakeholders.
The VAAR uses the regulatory
structure and arrangement of the FAR
and headings and subject areas are
consistent with FAR content. The VAAR
is divided into subchapters, parts (each
of which covers a separate aspect of
acquisition), subparts, and sections.
The Office of Federal Procurement
Policy Act, as codified in 41 U.S.C.
1707, provides the authority for the
Federal Acquisition Regulation and for
the issuance of agency acquisition
regulations consistent with the FAR.
When Federal agencies acquire
supplies and services using
appropriated funds, the purchase is
governed by the FAR, set forth at Title
48 Code of Federal Regulations (CFR),

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chapter 1, parts 1 through 53, and the
agency regulations that implement and
supplement the FAR. The VAAR is set
forth at Title 48 CFR, chapter 8, parts
801 to 873.
Discussion and Analysis
VA proposes to make the following
changes to the VAAR in this phase of its
revision and streamlining initiative. For
procedural guidance cited below that is
proposed to be deleted from the VAAR,
each section cited for removal has been
considered for inclusion in VA’s
internal agency operating procedures in
accordance with FAR 1.301(a)(2).
Similarly, delegations of authority that
are removed from the VAAR will be
included in the VAAM as internal
departmental guidance. The VAAM is
being created in parallel with these
revisions to the VAAR and is not subject
to the rulemaking process as they are
internal VA procedures and guidance.
The VAAM will not be finalized until
corresponding VAAR parts are finalized,
and therefore the VAAM is not yet
available online.
VAAR Part 802—Definitions of Words
and Terms
Under part 802, we propose to amend
Section 802.101 to remove definitions of
‘‘Suspending and Debarring Official
(SDO)’’ and ‘‘Suspension and
Debarment Committee (S&D
Committee).’’
VAAR Part 809—Contractor
Qualifications
Under part 809, Contractor
Qualifications, we propose to add the
authority citation for 41 U.S.C. 1702
which addresses the acquisition
planning and management
responsibilities of Chief Acquisition
Officers and Senior Procurement
Executives, to include implementation
of unique procurement policies,
regulations and standards of the
executive agency.
We propose to revise the authority
citation of 40 U.S.C. 121 to remove the
reference to paragraph (d), as paragraph
(c) which will be retained comports
with FAR and VAAR standard usage
and reference to paragraph (d) is
unnecessary. The authorities cited for
this part are 38 U.S.C. 8127 and 8128;
40 U.S.C. 121(c); 41 U.S.C. 1702; and 48
CFR 1.301–1.304.
In subpart 809.1, Responsible
Prospective Contractors, we propose to
delete 809.104, Standards (no text), and
809.104–2, Special standards, as it
includes internal VA procedural
guidance and will be moved to the
VAAM.

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We propose to delete subpart 809.2,
Qualifications Requirements, as the
policy and procedures relating to the
establishment of qualification
requirements are no longer being used
by VA and have been deemed
unnecessary. As a result of this change,
809.202, Policy, which designated the
HCA as the authority for establishing a
qualification requirement in accordance
with FAR 9.202(a)(1) is also being
removed.
This rulemaking also proposes to
remove 809.206, Acquisitions subject to
qualification requirements, which
contained no text. We also propose to
remove 809.206–1, General, consisting
of one sentence that provided that HCAs
may determine that an emergency exists
as provided by FAR 9.206–1(b); and
809.270, Qualified products for
convenience/labor-saving foods, which
provided internal guidance to Veterans
Integrated Service Networks. All of the
sections are being deleted as the
Department is no longer using Qualified
Product Lists.
We propose to revise subpart 809.4,
Debarment, Suspension, and
Ineligibility. In section 809.400, Scope
of subpart, we propose to clarify that the
policy supplements the FAR coverage
under FAR subpart 9.4 and prescribes
VA’s procedures for the suspension and
debarment of contractors. We propose to
revise 809.402, Policy, which would
establish that when VA is considering a
debarment or suspension action, the
Suspension and Debarment (S&D)
Committee shall coordinate the action
with the Interagency Committee on
Debarment and Suspension in order to
identify other agencies with an interest
in the action, and to identify the agency
that will take the lead on the action.
We propose to add 809.403,
Definitions. This section would define
the terms that are used through subpart
809.4, Debarment, Suspension, and
Ineligibility, including the S&D
Committee and the Suspending and
Debarring Official (SDO).
We propose to remove 809.404,
Excluded Parties List System, as this
system has been replaced by the System
for Award Management (SAM) and the
FAR has sufficient coverage in this area.
We propose to revise 809.405, Effect
of listing, to state that the authority to
determine whether to solicit from,
evaluate bids or proposals from, or
award contracts to contractors with
active exclusions in SAM is delegated to
the Suspending and Debarring Official
(SDO). The revised section also
establishes that this authority is further
delegated to the head of the contracting
activity (HCA) or their designee. We
propose to revise 809.405–1,

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Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules
Continuation of current contracts, and
809.405–2, Restrictions on
subcontracting, to delegate the authority
to the SDO, who further delegates the
authority to the HCA or designee to
make the determinations described
under these sections.
Under 809.406, Debarment, we
propose to revise 809.406–1, General, to
delegate to the SDO the authority to
determine whether to continue business
dealings between VA and a contractor
suspended, proposed for debarment, or
debarred.
In 809.406–2, Causes for debarment,
we propose to revise the title to comport
with the FAR and to remove the existing
language and reflect no text. The
coverage would be moved to a new
section that follows. We propose to add
new section 809.406–270, Additional
causes for debarment, to reflect VA’s
program that would conform with the
governing statute 38 U.S.C. 8127(g),
Enforcement Penalties for
Misrepresentation, to state that any
business concern that has willfully and
intentionally misrepresented the status
of that concern as a small business
concern owned and controlled by
veterans or as a small business concern
owned and controlled by servicedisabled veterans pursuant to this
section shall be debarred for no less
than 5 years. It would also provide a
definition for ‘‘willful and intentional’’
misrepresentations for the purposes of
debarment actions taken pursuant to 38
U.S.C. 8127(g).
We propose to revise 809.406–3,
Procedures, to provide to the public the
updated procedures for debarments and
to provide the responsibilities of the
SDO and Suspension and Debarment
(S&D) Committee. This section apprises
contractors of their rights when they
have been notified of their proposed
debarment.
We propose to revise 809.406–4,
Period of debarment, to inform
prospective vendors that the period of
debarment for willful and intentional
misrepresentations of SDVOSB or VOSB
status pursuant to 809.406–270(b) shall
not be less than 5 years.
Under 809.407, Suspension, we
propose to revise 809.407–1, General, to
reflect that the authority to determine
whether to continue to contract with a
suspended contractor has been
delegated to the HCAs. We propose to
revise 809.407–3, Procedures, to apprise
contractors of their rights when they
have been notified of their proposed
suspension. It has been revised to reflect
the updated procedures. We propose to
revise section 809.470, Fact-finding
procedures, to inform the contractor or
individual that they may submit

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documentary evidence, present
witnesses, and confront any person the
agency presents in the case of a
suspension or debarment.
We propose to delete 809.503, Waiver,
and move it to the VAAM as it provides
internal procedural guidance. We
propose to delete 809.504, Contracting
officer responsibilities, and move it to
the VAAM as it provides procedural
guidance to VA’s contracting officers.
We propose to revise section 809.507–
1, Solicitation provision, to correctly
identify 852.209–70 as a provision that
must be included in any solicitation for
the contracts outlined in FAR 9.502
which might have the potential for
conflicts of interest. It was previously
incorrectly referred to as a clause.
VAAR Part 841—Acquisition of Utility
Services
Under part 841, Acquisition of Utility
Services, we propose to add the
authority citation for 41 U.S.C. 1702
which addresses the acquisition
planning and management
responsibilities of Chief Acquisition
Officers and Senior Procurement
Executives, to include implementation
of unique procurement policies,
regulations and standards of the
executive agency.
We propose to revise the authority
citation of 40 U.S.C. 121, to remove the
reference to paragraph (d), as paragraph
(c) which will be retained comports
with FAR and VAAR standard usage
and reference to paragraph (d) is
unnecessary. The authorities cited for
this part are 40 U.S.C. 121(c); 41 U.S.C.
1702; and 48 CFR 1.301–1.304.
We propose to revise subpart 841.1,
General, by deleting 841.100, Scope of
part, as the section limited the scope of
the part to connection charges and since
the revised part 841 would cover the
full breadth of utility services, and
841.103, Statutory and delegated
authority, and to move it to the VAAM
as it represents internal guidance to
contracting officers.
We propose to add section 841.102,
Applicability, to clarify that the part
applies to acquisitions of utility services
from both regulated and nonregulated
utility suppliers and that when energy
is acquired as a commodity it is
considered to be purchase of supplies
rather than utility services.
We propose to delete subpart 841.2,
Acquiring Utility Services, as its
requirements for technical and legal
review are redundant with Part 801.
We propose to add subpart 841.5,
Solicitation Provision and Contract
Clauses, and sections 841.501,
Solicitation provision and contract
clauses (no text), and 841.501–70,

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Disputes—Utility contracts, which
prescribes the use of new clause
852.841–70, Disputes—Utility
Contracts, in solicitations and contracts
for utility services subject to the
jurisdiction and regulation of a utility
rate commission.
VAAR Part 842—Contract
Administration and Audit Services
We propose to revise section 842.000,
Scope of part, to clarify that the part
prescribes policies and procedures for
contract administration and audit
services for Department of Veteran
Affairs (VA) contracts. We propose to
revise 842.070, Definitions, to revise the
definition of ‘‘Contract Administration’’
to provide more detail. We also propose
to add a definition for ‘‘Administrative
Contracting Officer Letter of Delegation’’
to the section.
We propose to delete subpart 842.1,
Contract Audit Services. Under the
subpart, we propose to delete 842.101,
Contract audit responsibilities, because
the FAR guidance is sufficient in terms
of policy, and the procedural guidance
was moved to the VAAM. We also
propose to remove 842.102, Assignment
of contract audit services, from the
VAAR as it provides internal guidance
to VA’s contracting officers on how to
obtain contract audit services and move
coverage to the VAAM.
We propose to revise subpart 842.2,
Contract Administration Services, to
add section 842.270, Contracting
Officer’s Representatives’ role in
contract administration, to provide
policy on the appointment of the
Contracting Officer’s Representative in
contract administration. We propose to
redesignate 842.271, Contract clause for
Government construction contract
administration, to 842.272 as we
propose to add a new section, title and
content at 842.271. The new section
842.271, Administrative Contracting
Officer’s role in contract administration
and delegated functions, describes the
requisite ACO Letter of Delegation and
the limitations of ACO authority, and in
paragraph (d) would prescribe clause
852.242–71, Administrative Contracting
Officer. Under the revision to subpart
842.2, the newly added 842.272,
Contract clause for Government
construction contract administration,
prescribes clause 852.242–70,
Government Construction Contract
Administration, and revises the
prescription for use in solicitations and
contracts for construction expected to
exceed the micro-purchase threshold by
adding the words ‘‘,when contract
administration is delegated’’ at the end
of the prescription to reflect that the
clause would only be inserted by the

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contracting officer when contract
administration is delegated to another
contracting activity or contracting
officer.
We propose to revise section 842.705,
Final indirect cost rates, to require
contracting officers to request audits on
proposed final indirect cost rates and
billing rates for use in cost
reimbursement and fixed-price
incentive contracts except when quick
closeout procedures are used. We
propose to remove paragraph (b) of the
existing text as internal procedural
guidance and move it to the VAAM.
We propose to delete subpart 842.8,
Disallowance of Costs. We propose to
delete 842.801–70, Audit assistance
prior to disallowing costs, as it
references an office that no longer
exists. We propose to delete 842.803,
Disallowing costs after incurrence,
which emphasizes that COs cannot
exceed their contracting authority
which is redundant to the FAR.
We propose to revise subpart 842.12,
Novation and Change-of-Name
Agreements, to add 842.1202,
Responsibility for executing agreements,
which provides detailed policy
requirements regarding responsibilities
for executing agreements related to a
successor in interest to, or a change of
name of a contractor. This is
information that is relevant to the public
at large as to how such modifications
will be processed. We propose to
remove 842.1203, Processing
agreements, as the VAAR coverage
provided is redundant to FAR 42.1203.
Internal requirements for OGC legal
counsel review have been moved to the
VAAM.
VAAR Part 852—Solicitation Provisions
and Contract Clauses
In subpart 852.2, Text of Provisions
and Clauses, we propose to revise
provision 852.209–70, Organizational
Conflicts of Interest, to remove an
outdated citation and to correct
capitalization. The remaining language
in the provision is unchanged.
We propose to add clause 852.241–70,
Disputes—Utility Contracts, to provide
that matters involving the interpretation
of tariffed retail rates, tariff rate
schedules, and tariffed terms provided
under this contract are subject to any
determinations by the independent
regulatory body having jurisdiction.
We propose to revise clause 852.242–
70, Government Construction Contract
Administration, for use in all
construction solicitations and contracts
expected to exceed the micro-purchase
threshold, when contract administration
is delegated. The text of the clause
remains the same, but the first sentence

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‘‘As prescribed in 842.271, . . .’’ is
revised to ‘‘As prescribed in 842.272,
. . .’’ to reflect the new designation as
this rule has added different content at
842.271. The clause authorizes the
contracting officer to delegate contract
administration authority to another
contracting officer, and to designate
another VA employee to act as resident
engineer at the construction site with
limited and specific authority.
We propose to add clause 852.242–71,
Administrative Contracting Officer, for
use in all construction solicitations and
contracts expected to exceed the micropurchase threshold, which states that
the contracting officer reserves the right
to designate an Administrative
Contracting Officer (ACO) for the
purpose of performing certain tasks/
duties in the administration of the
contract and that the designation will be
in writing through an ACO Letter of
Delegation.
Executive Orders 12866, 13563 and
13771
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, when regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, and other advantages;
distributive impacts; and equity). E.O.
13563 (Improving Regulation and
Regulatory Review) emphasizes the
importance of quantifying both costs
and benefits, reducing costs,
harmonizing rules, and promoting
flexibility. The Office of Information
and Regulatory Affairs has determined
that this rule is not a significant
regulatory action under Executive Order
12866.
VA’s impact analysis can be found as
a supporting document at http://
www.regulations.gov, usually within 48
hours after the rulemaking document is
published. Additionally, a copy of the
rulemaking and its impact analysis are
available on VA’s website at http://
www.va.gov/orpm/, by following the
link for ‘‘VA Regulations Published
From FY 2004 Through Fiscal Year to
Date.’’
This proposed rule is not expected to
be an E.O. 13771 regulatory action
because this proposed rule is not
significant under E.O. 12866.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(at 44 U.S.C. 3507) requires that VA
consider the impact of paperwork and
other information collection burdens
imposed on the public. Under 44 U.S.C.

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3507(a), an agency may not collect or
sponsor the collection of information,
nor may it impose an information
collection requirement unless it
displays a currently valid OMB control
number. See also 5 CFR 1320.8(b)(3)(vi).
This proposed rule contains one
provision constituting a collection of
information at 48 CFR 809.507–1 and 48
CFR 852.209–70 which require offerors
on solicitations for management support
and consulting services to advise, as
part of the firm’s offer, whether or not
award of the contract to the firm might
involve a conflict of interest and, if so,
to disclose all relevant facts regarding
the conflict. The information is used by
the contracting officer to determine
whether or not to award a contract to
the firm or, if a contract is to be awarded
despite a potential conflict, whether or
not additional contract terms and
conditions are necessary to mitigate the
conflict. No new collection of
information is associated with this
provision as a part of this proposed rule.
The information collection requirement
for 809.507–1 and 852.209–70 is
currently approved by OMB and has
been assigned OMB control number
2900–0418. This rule amends this
information collection requirement to
revise 809.507–1 to designate 852.209–
70 as a provision instead of a clause. For
the requested administrative
amendments to VAAR 852.209–70, as
required by the Paperwork Reduction
Act of 1995 (at 44 U.S.C. 3507(d)), VA
will submit this information collection
amendment to OMB for its review.
Regulatory Flexibility Act
The Secretary hereby certifies that
this proposed rule would not have a
significant economic impact on a
substantial number of small entities as
they are defined in the Regulatory
Flexibility Act (5 U.S.C. 601–612).
This rulemaking does not change
VA’s policy regarding small businesses,
does not have an economic impact to
individual businesses, and there are no
increased or decreased costs to small
business entities. On this basis, the
proposed rule would not have an
economic impact on a substantial
number of small entities as they are
defined in the Regulatory Flexibility
Act, 5 U.S.C. 601–612. Therefore,
pursuant to 5 U.S.C. 605(b), the initial
and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do
not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act
of 1995 requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of
anticipated costs and benefits before

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issuing any rule that may result in the
expenditure by State, local, and tribal
Governments, in the aggregate, or by the
private sector, of $100 million or more
(adjusted annually for inflation) in any
one year. This proposed rule will have
no such effect on State, local, and tribal
Governments or on the private sector.
48 CFR Part 802
Government procurement.

This subpart implements FAR subpart
9.4 and prescribes VA’s procedures and
related actions for the suspension and
debarment of contractors.

(a) Notwithstanding the suspension,
proposed debarment, or debarment of a
contractor, VA may continue contracts
or subcontracts in existence at the time
the contractor was suspended, proposed
for debarment, or debarred, unless the
cognizant head of the contracting
activity (HCA) directs otherwise.
Examples of factors to be considered
include, but are not limited to, potential
costs associated with a termination,
possible disruption to VA program
objectives, and integrity of VA
acquisition programs.
(b) Authority to make the
determinations under FAR 9.405–1(b) is
delegated to the SDO and is further
delegated to the HCA, who may delegate
this authority, in writing, to a designee.
The HCA or their designee must make
a written determination of the
compelling reasons in accordance with
FAR 9.405–1(b). Compelling reasons for
the purposes of FAR 9.405–1(b) include,
but are not limited to, urgency of the
need for new or continued work,
lengthy time period to acquire the new
work from other sources and meeting
estimated quantity for requirements
contracts.

809.402

809.405–2

3. The authority citation for part 809
is revised to read as follows:

■

Authority: 38 U.S.C. 8127 and 8128; 40
U.S.C. 121(c); 41 U.S.C. 1702; and 48 CFR
1.301–1.304.

48 CFR Part 809

4. Sections 809.104 and 809.104–2 are
removed.

Government procurement, Reporting
and recordkeeping requirements.

Subpart 809.2 [Removed and
Reserved]

48 CFR Part 841

■

■

48 CFR Part 842

5. Subpart 809.2, consisting of
sections 809.201, 809.202, 809.204,
809.206, 809.206–1, and 809.270 is
removed.

Accounting, Government
procurement.

Subpart 809.4—Debarment,
Suspension, and Ineligibility

48 CFR Part 852

■

Government procurement, Utilities.

Government procurement, Reporting
and recordkeeping requirements.
Signing Authority
The Secretary of Veterans Affairs, or
designee, approved this document and
authorized the undersigned to sign and
submit the document to the Office of the
Federal Register for publication
electronically as an official document of
the Department of Veterans Affairs.
Pamela Powers, Chief of Staff,
Performing the Delegable Duties of the
Deputy Secretary, Department of
Veterans Affairs, approved this
document on April 8, 2020, for
publication.
Consuela Benjamin,
Regulation Development Coordinator, Office
of Regulation Policy & Management, Office
of the Secretary, Department of Veterans
Affairs.

For the reasons set out in the
preamble, VA proposes to amend 48
CFR to revise parts 802, 809, 841, 842
and 852 as follows:
PART 802—DEFINITIONS OF WORDS
AND TERMS

Authority: 40 U.S.C. 121(c); 41 U.S.C.
1121(c)(3); 41 U.S.C. 1702; and 48 CFR
1.301–1.304.
802.101

[AMENDED]

2. Section 802.101 is amended to
remove the definitions for ‘‘Suspending
and Debarring Official (SDO)’’ and
‘‘Suspension and Debarment Committee
(S&D Committee).’’

■

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6. Subpart 809.4 is revised to read as
follows:

809.400

Scope of subpart.

Policy.

(b) Statutory debarments pursuant to
the authority of 38 U.S.C. 8127(g),
Enforcement Penalties for
Misrepresentation, are mandatory when
the determination is made that a
business concern has willfully and
intentionally misrepresented its status
as a service-disabled, Veteran-owned
small business or Veteran-owned small
business.
809.403

Definitions.

Suspension & Debarment (S&D)
Committee means a committee
authorized by the SDO to assist the SDO
with suspension and debarment related
matters.
Suspending and Debarring Official
(SDO) means the individual responsible
for final decisions regarding suspension
and debarment, as appointed by the
agency.
809.405

1. The authority citation for part 802
continues to read as follows:

■

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809.405–1 Continuation of current
contracts.

PART 809—CONTRACTOR
QUALIFICATIONS

Subpart 809.1—Responsible
Prospective Contractors 809.104 and
809.104–2 [Removed]

List of Subjects

21815

Effect of listing.

The authority under FAR 9.405(a),
9.405(d)(2), and 9.405(d)(3) to determine
whether to solicit from, evaluate bids or
proposals from, or award contracts to
contractors with active exclusions in the
System for Award Management (SAM)
is delegated to the Suspending and
Debarring Official (SDO). This authority
is further delegated to the HCAs, who
may delegate this authority, in writing,
to a designee.

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Restrictions on subcontracting.

Authority to make the written
determination required under FAR
9.405–2 consenting to a contractor’s use
of a subcontractor who is suspended,
proposed for debarment, or debarred is
delegated to the SDO. This authority is
further delegated to the HCA, who may
delegate this authority, in writing, to a
designee.
809.406

Debarment.

809.406–1

General.

(a) For the purposes of FAR 9.406–1,
the SDO’s authority includes
debarments pursuant to the Federal
Management Regulation at 41 CFR 102–
117.295. In addition to the factors listed
in FAR 9.406–1, the SDO may consider
the following examples before arriving
at a debarment decision:
(1) Whether the contractor had a
mechanism, such as a hotline, by which
employees could have reported
suspected instances of improper
conduct, and instructions in place that
encouraged employees to make such
reports; or
(2) Whether the contractor conducted
periodic reviews of company business
practices, procedures, policies, and
internal controls for compliance with
standards of conduct and the special
requirements of Government
contracting.

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(c) As provided in FAR 9.406–1(c),
authority to determine whether to
continue business dealings between VA
and a contractor suspended, proposed
for debarment, or debarred is delegated
to the SDO.
809.406–2

Causes for debarment.

jbell on DSKJLSW7X2PROD with PROPOSALS

809.406–270
debarment.

Additional causes for

(a) Discretionary causes. (1) In
addition to the causes listed in FAR
9.406–2 (a) through (c), the SDO may
debar contractors, based upon a
preponderance of the evidence (as
defined at FAR 2.101), for the
Government’s protection, for—
(i) Any deliberate violation of the
limitation on subcontracting clause
requirements for acquisitions under
subpart 819.70; or
(ii) Failure to observe the material
provisions of a voluntary exclusion or
an administrative agreement.
(2) The period of debarment shall be
commensurate with the seriousness of
the action.
(b) Statutory cause. (1) Pursuant to 38
U.S.C. 8127(g), Enforcement Penalties
for Misrepresentation, the SDO shall
debar, from contracting with VA, for a
period of not less than five years, any
business concern that has willfully and
intentionally misrepresented the status
of that concern as a small business
concern owned and controlled by
Veterans or as a small business concern
owned and controlled by servicedisabled Veterans.
(2) Debarment of a business concern
pursuant to 38 U.S.C. 8127(g) shall
include the debarment of all principals
in the business concern. Debarment
shall be for a period of not less than five
years.
(3) ‘‘Willful and intentional’’
misrepresentations, for the purpose of
debarment actions taken pursuant to 38
U.S.C. 8127(g), are defined as deliberate
misrepresentations concerning the
status of the concern as a small business
concern owned and controlled by
Veterans or as a small business concern
owned and controlled by servicedisabled Veterans as supported by the
preponderance of evidence. Examples of
a preponderance of evidence for
deliberate misrepresentation of SDVOSB
and/or VOSB status include but are not
limited to: Criminal convictions, plea
agreements, deferred prosecution
agreements, Board of Contract Appeals
decisions, and admissions of guilt.
809.406–3

Procedures.

(a) Any individual may submit a
referral to debar an individual or
contractor to the SDO or to the S&D
Committee. The referral for debarment

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shall be supported with evidence of a
cause for debarment listed in FAR
9.406–2, or 809.406–2. The SDO shall
forward referrals for debarment to the
S&D Committee. If the referring
individual is a VA employee and the
referral for debarment is based on
possible criminal or fraudulent
activities, the VA employee shall also
refer the matter to the VA Office of
Inspector General.
(b) When the S&D Committee finds
preponderance of the evidence for a
cause for debarment, as listed in FAR
9.406–2 or 809.406–2, it shall prepare a
recommendation and draft notice of
proposed debarment for the SDO’s
consideration.
(c) VA shall send the notice of
proposed debarment to the last known
address of the individual or contractor,
the individual or contractor’s counsel,
or agent for service of process, by
certified mail, return receipt requested,
or any other means that allows for
confirmation of delivery. In the case of
a contractor, VA may send the notice of
proposed debarment to any partner,
principal, officer, director, owner or coowner, or joint venture. The S&D
Committee concurrently shall list the
appropriate parties as excluded in the
SAM in accordance with FAR 9.404.
(d) If VA does not receive a reply from
the contractor within 30 days after
sending the notice of proposed
debarment, the S&D Committee shall
prepare a recommendation and refer the
case to the SDO for a decision on
whether or not to debar based on the
information available.
(e) If VA receives a reply from the
contractor within 30 days after sending
the notice of proposed debarment, the
S&D Committee shall consider the
information in the reply before the S&D
Committee makes its recommendation
to the SDO.
(f) The S&D Committee, upon the
request of the contractor proposed for
debarment, shall, as soon as practicable,
allow the contractor an opportunity to
appear before the S&D Committee to
present information or argument
personally or through a representative.
The contractor may supplement the oral
presentation with written information
and argument. VA shall conduct the
proceeding in an informal manner and
without requirement for a transcript.
(g) If the S&D Committee finds the
contractor’s or individual’s submission
in opposition to the proposed
debarment raises a genuine dispute over
facts material to the proposed
debarment and the debarment action is
not based on a conviction or civil
judgment, the S&D Committee shall
submit to the SDO the information

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Sfmt 4702

establishing the dispute of material
facts. If the SDO agrees there is a
genuine dispute of material facts, the
SDO shall refer the dispute to a designee
for a resolution pursuant to 809.470,
Fact-finding procedures. The S&D
Committee shall provide the contractor
or individual the disputed material
fact(s). Decisions and determinations of
VA’s Center for Verification and
Evaluation (CVE) or Office of Small and
Disadvantaged Business Utilization
(OSDBU), such as status protest
decisions, and size determinations of
the SBA shall not be subject to dispute
or fact-finding in proposed debarment
actions. The S&D Committee and SDO
shall accept these decisions and
determinations as resolved facts.
(h) If the proposed debarment action
is based on a conviction or civil
judgment, or if there are no disputes
over material facts, or if any disputes
over material facts have been resolved
pursuant to 809.470, Fact-finding
procedures, the SDO shall make a
decision on the basis of all information
available including any written findings
of fact submitted by the designated fact
finder, and oral or written agreements
presented or submitted to the S&D
Committee by the contractor.
(i) In actions processed under FAR
9.406 where no suspension is in place
and where fact finding is not required,
the VA shall make the final decision on
the proposed debarment within 30
working days after receipt of any
information and argument submitted by
the contractor, unless the SDO extends
this period for a good cause.
(j) In actions processed under
809.406–270(b), the SDO notifies the
individuals and/or contractors of the
determination of willful and intentional
misrepresentation in the notice of
proposed debarment. VA shall issue the
final decision, removing or upholding
the determination, within 90 days after
SDO’s determination of willful and
intentional misrepresentation.
809.406–4

Period of debarment.

(a) The SDO will base the period of
debarment on the circumstances
surrounding the cause(s) for debarment.
(b) The SDO may remove a debarment
imposed under FAR 9.406, amend its
scope, or reduce the period of
debarment based on a S&D Committee
recommendation if—
(1) VA has debarred the contractor;
and
(2) The debarring official concurs
with documentary evidence submitted
by or on behalf of the contractor setting
forth the appropriate grounds for
granting relief. Appropriate grounds
include newly discovered material

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evidence, reversal of a conviction, bona
fide change of ownership or
management, elimination of the cause
for which debarment was imposed, or
any other appropriate grounds.
(c) The period of debarment for
willful and intentional
misrepresentations of SDVOSB or VOSB
status pursuant to 809.406–270(b) shall
not be less than 5 years.
809.407

Suspension.

809.407–1

General.

(a) As provided in FAR 9.407–1(d),
authority to determine whether to
continue business dealings between VA
and a suspended contractor is delegated
to the HCAs. Compelling reasons
include, but are not limited to, urgency
of the need for new or continued work,
lengthy time period to acquire the new
work from other sources, and meeting
estimated quantities for requirements
contracts.
(b) For the purposes of FAR 9.407–1,
the SDO is the suspending official under
the Federal Management Regulation at
41 CFR 102–117.295.

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809.407–3

Procedures.

(a) Any individual may submit a
referral to suspend an individual or
contractor to the SDO or to the S&D
Committee. Referrals shall include
supporting evidence of a cause for
suspension listed in FAR 9.407–2. The
SDO shall forward the referral to the
S&D Committee. If the referring
individual is a VA employee and the
referral for suspension is based on
possible criminal or fraudulent
activities, the VA employee shall also
refer the matter to the VA Office of
Inspector General.
(b) When the S&D Committee finds
adequate evidence of a cause for
suspension, as listed in FAR 9.407–2, it
shall prepare a recommendation and
draft notice of suspension for the SDO’s
consideration.
(c) VA shall send the notice of
suspension to the last known address of
the individual or contractor, the
individual or contractor’s counsel, or
agent for service of process, by certified
mail, return receipt requested, or any
other means that allows for
confirmation of delivery. In the case of
a contractor, VA may send the notice of
suspension to any partner, principal,
officer, director, owner or co-owner, or
joint venture. The S&D Committee
concurrently shall list the appropriate
parties as excluded in SAM in
accordance with FAR 9.404.
(d) If VA receives a reply from the
contractor within 30 days after receipt
of the notice of suspension, the S&D

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Committee shall consider the
information in the reply before the
Committee makes further
recommendations to the SDO. The S&D
Committee, upon the request of a
suspended contractor, shall, as soon as
practicable, allow the contractor an
opportunity to appear before the S&D
Committee to present information or
argument personally or through a
representative. The contractor may
supplement the oral presentation with
written information and argument. The
proceeding will be conducted in an
informal manner and without
requirement for a transcript.
(e) For the purposes of FAR 9.407–
3(b)(2), Decision making process, in
actions not based on an indictment, if
the S&D Committee finds that the
contractor’s submission in opposition to
the suspension raises a genuine dispute
over facts material to the suspension,
the S&D Committee shall submit to the
SDO the information establishing the
dispute of material facts. However, the
S&D Committee may first coordinate
any further proceeding regarding the
material facts in dispute with the
Department of Justice or with a State
prosecuting authority in a case
involving a State jurisdiction. VA shall
take no further action to determine
disputed material facts pursuant to this
section or 809.470 if the Department of
Justice or a State prosecuting authority
advises VA in writing that additional
proceedings to make such a
determination would prejudice Federal
or State legal proceedings.
(f) If the SDO agrees that there is a
genuine dispute of material facts, the
SDO shall refer the dispute to the
designee for resolution pursuant to
809.470.
809.470

Fact-finding procedures.

The provisions of this section
constitute the procedures to be used to
resolve genuine disputes of material fact
pursuant to 809.406–3 and 809.407–3 of
this subpart. The SDO shall appoint a
designee to conduct the fact-finding.
OGC shall represent VA at any factfinding hearing and may present
witnesses for VA and question any
witnesses presented by the contractor.
The proceedings before the fact-finder
will be limited to a finding of the facts
in dispute, as determined by the SDO.
The fact-finder shall establish the date
for the fact-finding hearing, normally to
be held within 30 days after the S&D
Committee notifies the contractor or
individual that the SDO has established
a genuine dispute of material fact(s)
exists.
(a) The Government’s representative
and the contractor will have an

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21817

opportunity to present evidence
relevant to the material fact(s) identified
by the SDO. The contractor or
individual may appear in person or
through a representative at the factfinding hearing. The contractor or
individual may submit documentary
evidence, present witnesses, and
confront any person the agency
presents.
(b) Witnesses may testify in person.
Witnesses will be reminded of the
official nature of the proceedings and
that any false testimony given is subject
to criminal prosecution. Witnesses are
subject to cross-examination. Hearsay
evidence may be presented and will be
given appropriate weight by the factfinder.
(c) The proceedings shall be
transcribed and a copy of the transcript
shall be made available at cost to the
contractor upon request, unless the
contractor and the fact-finder, by mutual
agreement, waive the requirement for a
transcript.
(d) The fact-finder shall determine the
disputed fact(s) by a preponderance of
the evidence for proposed debarments,
and by adequate evidence for
suspensions. Written findings of fact
shall be prepared by the fact-finder. A
copy of the findings of fact shall be
provided to the SDO, the Government’s
representative, and the contractor or
individual. The SDO will consider the
written findings of fact in the decision
regarding the suspension or proposed
debarment.
Subpart 809.5—Organizational and
Consultant Conflicts of Interest
809.503
■

[Removed]

7. Section 809.503 is removed.

809.504

[Removed]

8. Section 809.504 is removed.
9. Section 809.507–1 is revised to read
as follows:

■
■

809.507–1

Solicitation provisions.

(a) While conflicts of interest may not
presently exist, award of certain types of
contracts may create potential future
organizational conflicts of interest (see
FAR 9.508 for examples). If a
solicitation may create a potential future
organizational conflict of interest, the
contracting officer shall insert a
provision in the solicitation imposing
an appropriate restraint on the
contractor’s eligibility for award of
contracts in the future. Under FAR
9.507–1, the restraint must be
appropriate to the nature of the conflict
and may exclude the contractor from
award of one or more contracts in the
future.

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(b) The provision at 852.209–70,
Organizational Conflicts of Interest,
must be included in any solicitation for
the services addressed in FAR 9.502.
PART 841—ACQUISITION OF UTILITY
SERVICES
10. The authority citation for part 841
is revised to read as follows:

■

Authority: 40 U.S.C. 121(c); 41 U.S.C.
1702; and 48 CFR 1.301–1.304.

Subpart 841.1—General
841.100

[Removed]

11. Section 841.100 is removed.
12. Section 841.102 is added to read
as follows:

■
■

841.102

Applicability.

(a) This part applies to purchases of
utility services from nonregulated and
regulated utility suppliers when a
delegation of authority from GSA for
those services is requested and
obtained.
(b)(4) The acquisition of energy, such
as electricity, and natural or
manufactured gas, when purchased as a
commodity is considered to be
acquisitions of supplies rather than
utility services as described in FAR part
41.
841.103
■

[Removed]

13. Section 841.103 is removed.

841.2

14. Subpart 841.2 is removed and
reserved.
■ 15. Subpart 841.5 is added to read as
follows:
■

841.501 Solicitation provision and
contract clauses.
Disputes—Utility contracts.

PART 842—CONTRACT
ADMINISTRATION AND AUDIT
SERVICES
16. The authority citation for part 842
continues to read as follows:

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■

Authority 40 U.S.C. 121(c); 41 U.S.C. 1702;
and 48 CFR 1.301–1.304.

17. Section 842.000 is revised to read
as follows:

■

Scope of part.

This part prescribes policies and
procedures for contract administration

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As used in this part—
Contract administration means
Government actions taken after contract
award to obtain compliance with such
contract requirements as timely delivery
of supplies or services, acceptance,
payment, and closing of the contract.
These actions include, but are not
limited to, technical, financial, audit,
legal, administrative, and managerial
services in support of the contracting
officer. It may include additional tasks
requested of designated contract
administration offices within VA in
support of pre-award activities for
solicitations issued by or awarded by
other contracting activities through
Interagency Acquisitions.
Administrative Contracting Officer
Letter of Delegation means a delegation
of functions as set forth in FAR 42.202,
42.302 and 842.271, Administrative
Contracting Officer’s role in contract
administration and delegated functions,
that is issued by a contracting officer to
delegate certain contract administration
or specialized support services.

842.271 Administrative Contracting
Officer’s role in contract administration and
delegated functions.

(a) Contracting officers are authorized
to delegate certain contract
administration or specialized support
services in accordance with FAR 42.202
and 42.302 to cognizant VA
administrative contracting officers.
(b) The Administrative Contracting
Officer’s authority is limited to the
actions detailed in the delegation.
(c) These delegations of authority
shall be set forth in a written
Administrative Contracting Officer
(ACO) Letter of Delegation issued by the
contracting officer to the accepting
contract administration office and
designated administrative contracting
officer. The ACO Letter of Delegation
shall contain the information required
in FAR 42.202(a) through (c) and
identify the responsibilities and
limitations of the ACO. A copy of the
delegation will be furnished to the
contractor and the ACO.
(d) The contracting officer shall insert
the clause at 852.242–71,
Administrative Contracting Officer, in
solicitations and contracts expected to
exceed the micro-purchase threshold.
842.272 Contract clause for Government
construction contract administration.

■

The contracting officer shall insert the
clause at 852.242–70, Government
Construction Contract Administration,
in solicitations and contracts for
construction expected to exceed the
micro-purchase threshold, when
contract administration is delegated.
■ 21. Section 842.705 is revised to read
as follows:

Subpart 842.2—Contract
Administration Services

842.705

842.270 Contracting Officer’s
Representatives’ role in contract
administration.

The contracting officer shall insert the
clause at 852.841–70, Disputes—Utility
Contracts, in solicitations and contracts
for utility services subject to the
jurisdiction and regulation of a utility
rate commission.

VerDate Sep<11>2014

Definitions.

19. Subpart 842.1 is removed and
reserved.
■ 20. Subpart 842.2 is added to read as
follows:

Subpart 841.5—Solicitation Provision
and Contract Clauses

842.000

842.070

Subpart 842. 1—[Removed and
reserved]

[Removed and reserved]

841.501–70

and audit services for all Department of
Veterans Affairs (VA) contracting
activities.
■ 18. Section 842.070 is revised to read
as follows:

(a) A contracting officer may
designate a qualified person to be the
Contracting Officer’s Representative
(COR) for the purpose of performing
certain technical functions in
administering a contract.
(b) The COR acts solely as a technical
representative of the contracting officer
and is not authorized to perform any
function that results in a change in the
scope, price, terms or conditions of the
contract.
(c) A COR designation must be made
in writing by the contracting officer. The
designation shall identify the
responsibilities and limitations of the
COR. A copy of the designation must be
furnished to the contractor and the
Administrative Contracting Officer
(ACO), if separately assigned.

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Final indirect cost rates.

Except when the quick-closeout
procedures described in FAR 42.708 are
used, contracting officers shall request
contract audits on proposed final
indirect cost rates and billing rates for
use in cost reimbursement and fixedprice incentive contracts as prescribed
in FAR subpart 42.7.
Subpart 842.8—[Removed and
reserved]
22. Subpart 842.8 is removed and
reserved.

■

Subpart 842.12—Novation and
Change-of-Name Agreements
23. Section 842.1202 is added to read
as follows:

■

842.1202 Responsibility for executing
agreements.

To avoid duplication of effort on the
part of VA contracting offices in
preparing and executing agreements to

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Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules
recognize a change of name or successor
in interest involving multiple contracts
issued by VA activities, only one
agreement will be prepared and
executed between the Government and
the parties (transferor and transferee)
and will be processed as forth in FAR
42.1203. The Office of Acquisition and
Logistics, Risk Management and
Compliance Service will, in each case,
designate a cognizant HCA responsible
for assigning a contracting officer. The
designated contracting officer shall be
responsible for taking all necessary and
appropriate actions with respect to
either recognizing or not recognizing a
successor in interest or recognizing a
change of name agreement and
processing and executing the
agreements as set forth in VA
procedures.
842.1203
■

[Removed]

24. Section 842.1203 is removed.

26. Section 852.241–70 is added to
read as follows:

■

PART 852—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES

852.241–70

Disputes—Utility Contracts (Date)

25. Section 852.209–70 is revised to
read as follows:

■

Organizational Conflicts of

As prescribed in 809.507–1(b), insert
the following provision:

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Organizational Conflicts of Interest
(Date)
(a) It is in the best interest of the
Government to avoid situations which might
create an organizational conflict of interest or
where the Offeror’s performance of work
under the contract may provide the
Contractor with an unfair competitive
advantage. The term ‘‘organizational conflict
of interest’’ means that because of other
activities or relationships with other persons,
a person is unable to render impartial
assistance or advice to the Government, or
the person’s objectivity in performing the
contract work is or might be otherwise
impaired, or the person has an unfair
competitive advantage.
(b) The Offeror shall provide a statement
with its offer which describes, in a concise
manner, all relevant facts concerning any
past, present, or currently planned interest
(financial, contractual, organizational, or
otherwise) or actual or potential
organizational conflicts of interest relating to
the services to be provided under this
solicitation. The Offeror shall also provide
statements with its offer containing the same
information for any consultants and
subcontractors identified in its proposal and
which will provide services under the
solicitation. The Offeror may also provide
relevant facts that show how its
organizational and/or management system or

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Disputes—Utility Contracts.

As prescribed in 841.501–70, insert
the following clause:

Subpart 852.2—Texts of Provisions
and Clauses

852.209–70
Interest.

other actions would avoid or mitigate any
actual or potential organizational conflicts of
interest.
(c) Based on this information and any other
information solicited or obtained by the
Contracting Officer, the Contracting Officer
may determine that an organizational conflict
of interest exists which would warrant
disqualifying the Contractor for award of the
contract unless the organizational conflict of
interest can be mitigated to the Contracting
Officer’s satisfaction by negotiating terms and
conditions of the contract to that effect. If the
conflict of interest cannot be mitigated and
if the Contracting Officer finds that it is in
the best interest of the United States to award
the contract, the Contracting Officer shall
request a waiver in accordance with FAR
9.503.
(d) Nondisclosure or misrepresentation of
actual or potential organizational conflicts of
interest at the time of the offer or arising as
a result of a modification to the contract, may
result in the termination of the contract at no
expense to the Government.
(End of provision)

(a) Definition. As used in this clause,
Independent regulatory body means the
Federal Energy Regulatory Commission, a
state-wide agency, or an agency with less
than state-wide jurisdiction when operating
pursuant to state authority. The body has the
power to fix, establish, or control the rates
and services of utility suppliers.
(b) Independent Regulatory Body
determinations. The requirements of the
Disputes clause at FAR 52.233–1 are
supplemented to provide that matters
involving the interpretation of tariffed retail
rates, tariff rate schedules, and tariffed terms
provided under this contract are subject to
any determinations by the independent
regulatory body having jurisdiction.
(End of clause)

27. Section 852.242–70 is revised to
read as follows:

■

852.242–70 Government Construction
Contract Administration.

As prescribed in 842.272, insert the
following clause. This is a fill-in clause.
Government Construction Contract
Administration (Date)
(a) Contract administration functions set
forth in FAR 42.302 are hereby delegated to:
[Insert name and office address of
Contracting Officer]
[Note: If any of the functions set forth in
FAR 42.302 are to be retained by the
Contracting Officer, identify those as well
with the notation: ‘‘With the exception of the
following contract administration functions:
llll.’’Delete this notation if not
required.]

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(b) The following functions will be
retained by the Contracting Officer or
Administrative Contracting Officer (ACO)
and are not redelegable to Resident
Engineers:
(1) Award of contract modifications either
through supplemental agreements or change
orders that exceed the ACO’s appointed
warrant limitations.
(2) Issuance of default letters.
(3) Issuance of Cure or Show-Cause
Notices.
(4) Suspension of work letters and/or
modifications.
(5) Issuance of Contracting Officer final
determination letters.
(6) Issuance of termination notices.
(7) Authorization of final payment.
(c) The work will be under the direction of
a Department of Veterans Affairs Contracting
Officer, who may designate another VA
employee to act as resident engineer at the
construction site who possesses limited
warranted authority.
(d) Except as provided below, the resident
engineer’s directions will not conflict with or
change contract requirements. Within the
limits of any specific authority delegated by
the Contracting Officer, the resident engineer
may, by written direction, make changes in
the work. The Contractor shall be advised of
the extent of such authority prior to
execution of any work under the contract.
(e) The Contracting Officer or an
Administrative Contracting Officer identified
in paragraph (a) may further delegate limited
authority and specialized support services
responsibilities below to the following
warranted Resident Engineer personnel on
site, not to exceed the dollar value and
threshold of their warrant: [Insert name and
office address of Resident Engineer with
limited authority]
(1) Conduct post-award orientation
conferences.
(2) Issue administrative changes (see FAR
43.101) correcting errors or omissions,
contractor address, facility or activity code,
remittance address, computations which do
not required additional contract funds, and
other such changes.
(3) For actions not to exceed $ [Insert
dollar amount] negotiate and execute
supplemental agreements resulting from
change orders issued under the Changes
clause.
(4) Negotiate and execute supplemental
agreements changing contract delivery
schedules where the time extension does not
exceed [Insert number] calendar days.
(End of clause)

28. Section 852.242–71 is added to
read as follows:

■

852.242–71
Officer.

Administrative Contracting

As prescribed in 842.271, insert the
following clause:
Administrative Contracting Officer
(Date)
The Contracting Officer reserves the right
to designate an Administrative Contracting
Officer (ACO) for the purpose of performing
certain tasks/duties in the administration of

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Federal Register / Vol. 85, No. 76 / Monday, April 20, 2020 / Proposed Rules

the contract. Such designation will be in
writing through an ACO Letter of Delegation
and will identify the responsibilities and
limitations of the ACO. A copy of the ACO
Letter of Delegation will be furnished to the
Contractor.
(End of clause)
[FR Doc. 2020–07799 Filed 4–17–20; 8:45 am]
BILLING CODE 8320–01–P

DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Parts 191 and 192
[Docket No. PHMSA–2019–0131]

Pipeline Safety: Farm Taps Frequently
Asked Questions
Pipeline and Hazardous
Materials Safety Administration
(PHMSA); DOT.
ACTION: Announcement of frequently
asked questions; request for comments.
AGENCY:

The Pipeline and Hazardous
Materials Safety Administration
(PHMSA) is making available for
comment a set of proposed frequently
asked questions (FAQs) regarding
individual service lines directly
connected to production, gathering, or
transmission pipelines, commonly
referred to as farm taps. The proposed
FAQs address the applicability of the
Federal Pipeline Safety Regulations and
include guidance related to the Exercise
of Enforcement Discretion Regarding
Farm Taps published in the Federal
Register on March 26, 2019.
DATES: Persons interested in submitting
comments on the proposed farm tap
FAQs must do so by June 19, 2020.
ADDRESSES: You may submit comments,
identified by docket number PHMSA–
2019–0131, by any of the following
methods:
• E-Gov Web: http://
www.regulations.gov. This site allows
the public to enter comments on any
Federal Register notice issued by any
agency. Follow the online instructions
for submitting comments.
• Mail: Docket Management System:
U.S. Department of Transportation, 1200
New Jersey Avenue SE, West Building
Ground Floor, Room W12–140,
Washington, DC 20590–0001.
• Hand Delivery: DOT Docket
Management System: West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE, between 9:00
a.m. and 5:00 p.m. EST, Monday
through Friday, except federal holidays.
• Fax: 202–493–2251.

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SUMMARY:

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• Instructions: Identify the docket
PHMSA–2019–0131, at the beginning of
your comments. If you submit your
comments by mail, submit two copies.
If you wish to receive confirmation that
PHMSA received your comments,
include a self-addressed stamped
postcard. Internet users may submit
comments at http://
www.regulations.gov.
• Privacy Act: DOT may solicit
comments from the public regarding
certain general notices. DOT posts these
comments, without edit, including any
personal information the commenter
provides, to www.regulations.gov, as
described in the system of records
notice (DOT/ALL–14 FDMS), which can
be reviewed at www.dot.gov/privacy.
• Confidential Business Information:
Confidential Business Information (CBI)
is commercial or financial information
that is both customarily and actually
treated as private by its owner. Under
the Freedom of Information Act (FOIA)
(5 U.S.C. 552), CBI is exempt from
public disclosure. If your comments
responsive to this document contain
commercial or financial information
that is customarily treated as private,
that you actually treat as private, and
that is relevant or responsive to this
document, it is important that you
clearly designate the submitted
comments as CBI. Pursuant to 49 CFR
190.343, you may ask PHMSA to give
confidential treatment to information
you give to the agency by taking the
following steps: (1) Mark each page of
the original document submission
containing CBI as ‘‘Confidential’’; (2)
send PHMSA, along with the original
document, a second copy of the original
document with the CBI deleted; and (3)
explain why the information you are
submitting is CBI. Unless you are
notified otherwise, PHMSA will treat
such marked submissions as
confidential under FOIA, and they will
not be placed in the public docket of
this document. Submissions containing
CBI should be sent to Sayler Palabrica
at DOT, PHMSA, PHP–30, 1200 New
Jersey Avenue SE, PHP–30, Washington,
DC 20590–0001.
Any commentary PHMSA receives
that is not specifically designated as CBI
will be placed in the public docket for
this matter.
• Docket: For access to the docket to
read background documents or
comments received, go to http://
www.regulations.gov. Follow the online
instructions for accessing the dockets.
Alternatively, you may review the
documents in person at the street
address listed above.
FOR FURTHER INFORMATION CONTACT:
General: Mr. Sayler Palabrica by

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telephone at 202–366–0559, or email at
[email protected].
Technical: Mr. Chris McLaren by
telephone at 281–216–4455, or email at
[email protected].
SUPPLEMENTARY INFORMATION: PHMSA
provides written clarification of the
pipeline safety regulations (49 CFR parts
190–199) in the form of FAQs and other
guidance materials. PHMSA is
requesting public comment on a set of
proposed FAQs intended to clarify,
explain, and promote better
understanding and implementation of
the requirements in Parts 191 and 192
with respect to individual service
pipelines directly connected to
transmission, gathering, or production
pipelines. These facilities are typically
located in rural areas and are commonly
known as ‘‘farm taps.’’
These proposed FAQs reflect
PHMSA’s current application of the
regulations to the specific
implementation scenarios presented.
However, there are many situations and
configurations in which farm taps exist
in gas pipeline systems, and individual
FAQs cannot account for all possible
scenarios. Operators may request
written regulatory interpretations from
PHMSA regarding specific situations in
accordance with § 190.11.
FAQs are provided to help the
regulated community understand how
to comply with the regulations, but they
are not substantive rules themselves and
do not create legally enforceable rights,
assign duties, or impose new obligations
not otherwise contained in the existing
regulations and standards. However, an
operator who is able to demonstrate
compliance with the FAQs is likely to
be able to demonstrate compliance with
the relevant regulations. If a different
course of action is taken by a pipeline
operator, the operator must be able to
demonstrate that its conduct is in
accordance with the regulations.
On January 23, 2017, PHMSA
published a final rule titled ‘‘Operator
Qualification, Cost Recovery, Accident
and Incident Notification, and Other
Pipeline Safety Changes’’ in the Federal
Register (82 FR 7972). This final rule,
effective March 24, 2017, excepted
individual service lines directly
connected to a transmission, gathering,
or production pipeline from the
distribution integrity management
program (DIMP) regulations at
§ 192.1003(b). Instead, PHMSA added
§ 192.740, requiring periodic inspection
and maintenance for pressureregulating, limiting, and overpressure
protection devices on individual service
lines directly connected to production,
gathering, or transmission pipelines.

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