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Acquisition Policy Flash! 19-18

What's Changed?

Class Deviation from VAAR 808.002, Priorities for Use of Government Supply Sources and VAAR Subpart 808.6, Acquisition from Federal Prison Industries, Inc.

Purpose:  To issue a Class Deviation from Department of Veterans Affairs Acquisition Regulation (VAAR) 808.002, Priorities for Use of Government Supply Sources, and VAAR subpart 808.6, Acquisition from Federal Prison Industries, Inc., in accordance with Federal Acquisition Regulation (FAR) 1.404, Class Deviations, and Department of Veterans Affairs Acquisition Regulation (VAAR) 801.404. This revised Class Deviation supersedes Class Deviation from VAAR 808.002, Priorities for Use of Mandatory Government Sources, dated February 9, 2018, and revises VAAR 808.002 and subpart 808.6 to reflect language consistent with the decision of the United States Court of Appeals for the Federal Circuit (the Federal Circuit) in PDS Consultants, Inc., v. The United States, Winston-Salem Industries for the Blind, issued October 17, 2018.

VAAR Sections Referenced:  VAAR subparts 808.002 and 808.603.

Effective Date:  Immediately.

Background:  On May 20, 2019, the Federal Circuit issued a mandate effectuating its October 17, 2018 decision in PDS Consultants, Inc., v. The United States, Winston-Salem Industries for the Blind (PDS Consultants). In the decision, the Federal Circuit noted that under 38 U.S.C. § 8128(a), the Secretary of Veterans Affairs, when “procuring goods and services pursuant to a contracting preference under [title 38] or any other provision of law…shall give priority to a small business concern owned and controlled by Veterans, if such business concern meets the requirements of that contracting preference.” (emphasis added). The Federal Circuit noted that the phrase “or any other provision of law” by its terms encompasses the Javits-Wagner O’Day Act (JWOD), 41. U.S.C. § 8504. Therefore, the Federal Circuit found that where a product or service is on the Procurement List and ordinarily would result in the contract being awarded to a nonprofit qualified under the JWOD, the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the Act), Pub. L. No 109-461, 120 Stat. 3403, 3431-35 (2006) mandates that priority be given to service-disabled Veteran-owned small businesses and Veteran-owned small businesses.

Applicability:  This deviation applies to all VA contracts (see definition of contract at FAR 2.101).

Action Required:  VA contracting officers and other VA acquisition professionals shall comply with the class deviation.

Additional Information:  Direct any questions or comments to the Procurement Policy and Warrant Management Service via email at va.procurement.policy@va.gov or (202) 632-5288.