Acquisition Policy Flash! 21-22
Class Deviation from VA Acquisition Regulation Part 808, Required Sources of Supplies and Services
Purpose: To issue a class deviation in accordance with Federal Acquisition Regulation (FAR) 1.404, Class Deviations, and VA Acquisition Regulation (VAAR) 801.404, Class Deviations. The class deviation revises VA’s original implementation of legislative amendments to VA’s Veteran’s First Contracting Program (VFCP) by adding language to provide for an exception to small business contracting requirements applicable to the VA’s procurement of certain goods and services covered under the AbilityOne program. This class deviation supersedes Class Deviation from VAAR 808.002, Priorities for Use of Mandatory Government Sources, dated August 14, 2020. A VAAR update will be forthcoming.
VAAR Sections Referenced: VAAR Part 808, to include section 808.002, and Subpart 808.6.
Effective Date: Immediately.
Background: On August 08, 2020, Public Law 116-155, the Department of Veterans Affairs Contracting Preference Consistency Act of 2020 (H.R. 4290), amending 38 U.S.C. 8127, was enacted and effective as of the same date. In summary, the new legislation requires a contracting officer of the Department to procure covered products and services on the Procurement List maintained by the Committee for Purchase from People Who Are Blind or Severely Disabled (the Committee), through the AbilityOne Program, as a priority mandatory Government source. This requirement shall not apply in the case of a covered product or service for which a contract was awarded to a Service-Disabled Veteran-Owned Small Business (SDVOSB)/Veteran-Owned Small Business (VOSB) under the authority of 38 U.S.C. 8127(d)(1) using restricted competition after December 22, 2006 and in effect on the day before the enactment of the Act, August 7, 2020. In such case, these covered products and services shall continue under VA’s unique SDVOSB/VOSB set-aside program using restricted competition as provided in VAAR 819.7005 and 819.7006. When these SDVOSB/VOSB contracts are terminated or expire, the Head of the Contracting Activity or designee, is required to make a determination that the VA Rule of Two cannot be met before the requirement can be procured under the AbilityOne program. The legislation provides a definition of covered products and services and an exception, which the VA implements in this class deviation pending publication of an interim final rule (RIN 2900-AR07). The class deviation is needed to revise VA’s original implementation of Public Law 116-155, by deviating from VAAR part 808 to add language at VAAR 808.002 implementing the aforementioned legislative amendments. Additionally, to add language at VAAR subpart 808.6 and VAAR 808.603, since the previous language expires on July 1, 2021 in the Temporary Rule text at VAAR 808.002, VAAR subpart 808.6 and VAAR 808.603.
Applicability: This class deviation applies to all VA contracts (see definition of contract at FAR 2.101). Additionally, this deviation applies to contracts conducted by VA or on behalf of VA, using interagency acquisitions in accordance with FAR subpart 17.5, VAAR subpart 817.5, and FAR 8.404(b)(2), and any other arrangement with any governmental entity to acquire goods and services by contract on behalf of the VA.
Action Required: Contracting officers shall comply with the attached class deviation to implement the aforementioned changes.
Additional Information: Direct any questions or comments regarding to Procurement Policy and Warrant Management services via email at va.procurement.policy.