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Office of Policy and Planning

VA FAIR Act Challenge and Appeal Process

Under Section 3 of the FAIR Act, an agency’s decision to include or exclude a particular activity from the Commercial Activities Inventory is subject to administrative challenge and possible appeal by an interested party.  The FAIR Act defines an “interested party” as:

(1)  A private sector source that (a) is an actual or prospective offeror for any contract, or other form of agreement, to perform the activity; and (b) has a direct economic interest in performing the activity that would be adversely affected by a determination not to procure the performance of the activity from a private sector source.

(2)  A representative of any business or professional association that includes within its membership private sector sources referred to in paragraph (1).

(3)  An officer or employee of an organization within an executive agency that is an actual or prospective offer or to perform the activity.

(4)  The head of any labor organization referred to in section 7103(a)(4) of title 5, United States Code, that includes within its membership officers or employees of an organization referred to in paragraph (3).


Interested parties who wish to submit an administrative challenge, and possible appeal to an adverse VA decision, must adhere to the following process:

Step #1

An interested party may submit an administrative challenge to the inclusion or exclusion of an activity within 30 working days after Federal Register notification that the VA inventory is available.  The administrative challenge must set forth the activity or activities being challenged with as much specificity as possible.  The challenge should include the reasons for the interested party’s resolve that the particular activity should be reclassified as inherently governmental (and therefore deleted from the inventory) or as commercial (and therefore added to the inventory).  Interested parties who have a contention with VA’s inventory of commercial activities can file an initial challenge by (1) sending in a written correspondence or (2) by electronically filing a challenge.

[1] Written Challenges

Department of Veterans Affairs
Office of the Deputy Assistant Secretary for Planning and Evaluation
FAIR Act Challenge
810 Vermont Avenue, NW (008B)
Washington, DC 20420

[2] Electronic Challenges

E-mail address:  fairact@mail.va.gov

Interested parties electing to file a challenge electronically need to be specific in their communication and include full name and mailing address.  Interested parties may attach a word processing file (preferably in MS Word format).

Step #2

The deciding VA official must review the initial challenge and transmit to the interested party a written notification of the decision within 28 working days of receiving the challenge.  The notification must include a discussion of the rationale for the decision and, if the decision is adverse, an explanation of the party’s right to file an appeal.

Step #3

An interested party may appeal an adverse decision to an initial challenge within 10 working days after receiving the written notification of the decision.

The appeal should state the interested party’s contentions that their initial challenge should be accepted, and that a particular activity should be reclassified as inherently governmental (and therefore deleted from the inventory) or as commercial (and therefore added to the inventory).  An interested party’s appeal should include specific contentions to justify their appeal and not just a restatement of their original position.

Interested parties who disagree with VA’s decision to not accept their initial challenge may file an appeal by (1) sending in a written correspondence or (2) by electronically filing an appeal.

[1] Written Challenges

Department of Veterans Affairs
Office of the Deputy Assistant Secretary for Planning and Evaluation
FAIR Act Challenge
810 Vermont Avenue, NW (008B)
Washington, DC 20420

[2] Electronic Challenges

E-mail address:  fairact@va.gov

Interested parties electing to file a challenge electronically need to be specific in their communication and include full name and mailing address.  Interested parties may attach a word processing file (preferably in MS Word format).

Step #4

Within 10 working days of receipt of the interested party’s appeal, VA’s designated official must decide the appeal and transmit to the interested party a written notification of the decision together with a discussion of the rationale for the decision.

Additional Information