Part M803 - Improper Business Practices and Personal Conflicts of Interest - Office of Acquisition and Logistics (OAL)
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Office of Acquisition and Logistics (OAL)

 

Part M803 - Improper Business Practices and Personal Conflicts of Interest

  VAAM Table of Contents VAAM Part M804 »
 
Subpart M803.1—Safeguards
M803.101 Standards of conduct.
M803.101-1 General.
M803.101-3 Department regulations.
M803.104 Procurement integrity.
M803.104-4 Disclosure, protection, and marking of contractor bid or proposal information and source selection information.
803.104-7 Violations or possible violations.
Subpart M803.2—Contractor Gratuities to Government Personnel
M803.203 Reporting suspected violations of the Gratuities clause.
M803.204 Treatment of violations.
Subpart M803.3—Reports of Suspected Antitrust Violations
M803.303 Reporting suspected antitrust violations.
Subpart M803.4—Contingent Fees
M803.405 Misrepresentations or violations of the Covenant Against Contingent Fees.
Subpart M803.5—Other Improper Business Practices
M803.502 Subcontractor kickbacks.
Subpart M803.6—Contracts with Government Employees or Organizations Owned or Controlled by Them
M803.602 Exceptions.
Subpart M803.7—Voiding and Rescinding Contracts
M803.703 Authority.
M803.704 Policy.
M803.705 Procedures.
Subpart M803.8—Limitations on the Payment of Funds to Influence Federal Transactions
M803.804 Policy.
M803.806 Processing suspected violations.
Subpart M803.9—Whistleblower Protections for Contractor Employees
M803.905 Procedures for investigating complaints.
M803.906 Remedies.
M803.907 Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (the Recovery Act).
M803.907-3 Procedures for filing complaints.
M803.907-6 Remedies and enforcement authority.
M803.908 Pilot program for enhancement of contractor employee whistleblower protections.  [Reserved.]
Subpart M803.10—Contractor Code of Business Ethics and Conduct
M803.1003 Requirements.
Subpart M803.11—Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions
M803.1103 Procedures.

Appendix:  M803-A VA Contractor Non-Disclosure Agreement


Subpart M803.1 - Safeguards

M803.101  Standards of conduct.

M803.101-1  General.

Department of Veterans Affairs (VA) core values and characteristics serve as the foundation for the way VA employees should interact with each other, as well as with people outside the organization, articulate what VA stands for, and underscore its moral obligation to veterans, their families, and other beneficiaries.  They are intended to establish one overarching set of guidelines that apply to all VA Administrations and staff offices, confirming the values already instilled in many VA employees and enforcing their commitment to provide the best service possible to Veterans, their families, and their caretakers.

M803.101-3  Agency regulations.

Part 0 of 38 Code of Federal Regulations (CFR) states the standards of conduct for all VA employees, including contracting officials.  Subpart C of 38 CFR part 0 contains the employee financial disclosure.

M803.101-70  Department of Veterans Affairs Designated Agency Ethics Officials.

(a) For VA Central Office (VACO) use email GovernmentEthics@va.gov VACO’s Designated Agency Ethics Official (DAEO) and Alternate Designated Agency Ethics Official.

(b) Designated Deputy Agency Ethics Official Outside VACO:

Use email address OGCNorthEastEthics@va.gov to contact Deputy Agency Ethics Official servicing Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Pennsylvania, Ohio, West Virginia, Michigan and Wisconsin.

Use email address OGCSouthEastEthics@va.gov to contact Deputy Agency Ethics Official servicing Virginia, North Carolina, South Carolina, Georgia, Florida, Mississippi, Alabama, Louisiana, Southern Texas and Puerto Rico.

Use email address OGCMidwestEthics@va.gov to contact Deputy Agency Ethics Official servicing the District of Columbia, Maryland, Indiana, Kentucky, Tennessee, Arkansas, Missouri, Illinois, Iowa, Minnesota, North Dakota, South Dakota, Nebraska and Kansas.

Use email address OGCWestEthics@va.gov to contact Deputy Agency Ethics Official servicing Northern Texas, Oklahoma, New Mexico, Arizona, Colorado, Utah, Wyoming, Montana, Idaho, Nevada, California, Oregon, Washington, Hawaii, Alaska, Guam and Philippines.

In addition, Ethics team contact information can be obtained at this website.

M803.104  Procurement Integrity.

M803.104-4  Disclosure, Protection, and Marking of Contractor Bid or Proposal Information and Source Selection Information.

(a) Authorized access to contractor bid or proposal information, and source selection information.

(1) The following persons may access contractor bid or proposal information and source selection information to accomplish their responsibilities in a procurement action:

(i) Requirements generators, including client agency representatives, and program and technical experts who develop statements of work, specifications or similar documents;

(ii) Contracting personnel supporting the contracting officer;

(iii) Personnel serving on technical evaluation boards or source selection evaluation boards;

(iv) Supervisors in the contracting officer’s chain of command;

(v) Secretarial, clerical and administrative personnel of the contracting activity responsible for the procurement;

(vi) Small Business Technical Advisors;

(vii) Small Business Administration (SBA) personnel who review determinations not to set-aside acquisitions, determine the small business status of offerors under FAR 19.302, process applications for Certificates of Competency under FAR 19.6, review subcontracting plans, or award contracts under the 8(a) program;

(viii) Credit and finance personnel who support the contracting officer in making contractor responsibility determinations;

(ix) Contract auditors in the Office of Inspector General.

(xi) Attorneys in the Office of General Counsel (OGC) and supporting legal counsel’s offices; and

(xii) Personnel involved in contract approval.

(2) The Senior Procurement Executive may authorize additional persons access to contractor bid or proposal information or source selection information.

(3) The contracting officer may authorize access to contractor bid or proposal information or source selection information if necessary to conduct the procurement.  This includes release of information to outside evaluators under FAR 9.505-4 and 37.204.  Limit access to only that information the person needs to do their job.

(b) Procedures for marking and protecting information.  Anyone who prepares, makes, or controls contractor bid or proposal information and source selection information shall:

(1) Mark each page of the documents as prescribed in FAR 3.104-4(c).

(2) Provide physical security for documents in the office environment during, and after, duty hours.

(3) Secure interoffice mailing of documents by using opaque envelopes, “double wrapping” with more than one envelope, and sealing envelopes securely.

(4) Maintain strict control over oral communications about the acquisition.

M803.104-7  Violations or possible violations.

(a)(1) A contracting officer who receives or obtains information of a violation or possible violation of the Procurement Integrity Act shall forward the information and documentation supporting a determination whether or not there is an impact on the procurement to the head of the contracting activity (HCA).  In consultation with OGC, the HCA may make the determination and concurrence to proceed with the award as specified in FAR 3.104-7(a)(1).

(b)If the HCA, after reviewing the contracting officer’s recommendation in (a)(1) of this subsection, determines that the violation or possible violation impacts the procurement, the HCA shall, take one of the following actions:

(1) Advise the contracting officer to continue with the procurement;

(2) Begin an investigation by reporting violations or possible violations to the VA Office of the Inspector General;

(3) Refer the information disclosed to appropriate criminal investigative agencies;

(4) Conclude that a violation occurred; or

(5) Recommend that a determination under FAR 3.104-7(b)(5) be made that the contractor, or someone acting for the contractor, has engaged in conduct constituting an offense punishable under subsection 27(e) of the Act, for the purpose of voiding or rescinding the contract.

The authority to make the determination in (b)(5) is delegated to the Senior Procurement Executive (SPE) and is further delegated to the Deputy Senior Procurement Executive (DSPE).

(c)Upon receipt of information describing a violation or possible violation of subsections 27(a), (b), (c), or (d) of the Office of Federal Procurement Policy Act of 1974 (see FAR 3.104-3), the HCA, in coordination with legal counsel, shall take appropriate action described in FAR 3.104-7(b)(1), (2), (3), or (4), such as:

(1) Advise the contracting officer to continue with the procurement;

(2) Begin an investigation;

(3) Refer the information disclosed to appropriate criminal investigative agencies;

(4) Conclude that a violation occurred; or

(5) Recommend that the agency head determine that the contractor, or someone acting for the contractor, has engaged in conduct constituting an offense punishable under subsection 27(e) of the Act, for the purpose of voiding or rescinding the contract.

(d)(2)(ii)(B) The authority to make the determination in 3.104-7(d)(2)(ii)(B) to void or rescind a contract for violation of the Procurement Integrity Act is delegated to the HCA.

(3) The agency Suspension and Debarment Official (SDO) is the DSPE (see 802.101).

(f) As provided in FAR 3.104-7(f), if the HCA determines that urgent and compelling circumstances justify an award, or award is otherwise in the interests of the Government, the HCA may authorize a contracting officer to award a contract after notifying the DSPE of the circumstances warranting such an award.

Subpart M803.2 - Contractor Gratuities to Government Personnel

M803.203  Reporting suspected violations of the Gratuities clause.

(a) VA employees shall report suspected violations of the Gratuities clause, 52.203-3, through the contracting officer to the HCA.

(b)(1) The report shall identify the contractor and the personnel involved, provide a summary of the pertinent evidence and circumstances that indicate a violation, and include any other available supporting documentation.

(2) The HCA, in coordination with the supporting legal counsel, shall confirm whether the violation is evident and, if confirmed, report the violations to the SDO.

M803.204  Treatment of violations.

The DSPE is the Suspending and Debarring Official (SDO) designated to make the determination under FAR 3.204(a).  The SDO, with the review and concurrence of OGC, shall make the final determination of whether or not a violation has occurred and shall advise the HCA of the decision and the actions to take under FAR 3.204(c).

(b) The Suspension and Debarment Committee (S&D) and SDO shall follow procedures in VAAR 809.406-3 when debarment is being considered.

(c)(3) The authority to assess exemplary damages under a contract that uses money appropriated to the Department of Defense is delegated to the SDO.

Subpart M803.3 - Reports of Suspected Antitrust Violations

M803.303  Reporting suspected antitrust violations.

(a) Any VA employee who suspects or has evidence of possible antitrust violations shall report the suspected violations, in accordance with FAR 3.303, to the VA Office of the Inspector General and to the Deputy Senior Procurement Executive (DSPE) for review and submission to OGC.  The OGC in coordination with the Office of Inspector General shall determine whether to refer suspected fraudulent or criminal matters to the U.S. Attorney General.

Subpart M803.4 - Contingent Fees

M803.405  Misrepresentations or violations of the Covenant Against Contingent Fees.

(a) A VA employee who suspects or has evidence of an attempted or actual exercise of improper influence, misrepresentation of a contingent fee arrangement, or any other violation of the Covenant Against Contingent Fees, shall report the matter to the contracting officer.  The contracting officer, in accordance with HCA procedures, shall report a suspected or actual misrepresentation or violation to the Deputy Senior Procurement Executive (DSPE).

(b) Before taking any administrative action under FAR 3.405, the contracting officer shall consult with OGC or supporting legal Counsel.

(4) Contracting officers shall route any referrals of suspected fraudulent or criminal matters to the Department of Justice under FAR 3.405(b)(4) through supporting legal Counsel or OGC, or the VA Office of the Inspector General, with a copy to the DSPE. Counsel or the Inspector General shall determine whether to forward the referral to the Department of Justice.

Subpart M803.5 - Other Improper Business Practices

M803.502  Subcontractor kickbacks.

A VA employee who suspects a violation of the Anti-kickback Act shall report the suspected violation to the contracting officer and to OGC.

Subpart M803.6 - Contracts With Government Employees or Organizations Owned or Controlled by Them

M803.602  Exceptions.

The authority to authorize an exception to the policy in FAR 3.601 is delegated to the Senior Procurement Executive (SPE)/Deputy Senior Procurement Executive (DSPE).

Subpart M803.7 - Voiding and Rescinding Contracts

M803.703  Authority.

(a) The authority to void or rescind contracts is delegated to the HCA.

(b)(2) The authority to make the determination at FAR 3.703(b)(2) is delegated to the HCA.

M803.704  Authority.

(a) The authority in FAR 3.704(c) to void and rescind contracts, and to initiate suspension or debarment proceedings is delegated to the HCA.

M803.705  Procedures.

(c) In making a determination required at M803.703(b), to void or rescind a contract, the HCA shall follow the procedures of FAR 3.705.

Subpart M803.8 - Limitations on the Payment of Funds to Influence Federal Transactions

M803.804  Authority.

A contracting officer shall forward a copy of all contractor disclosures furnished under the clause at FAR 52.203-12, Limitations on Payments to Influence Certain Federal Transactions, to the Senior Procurement Executive (SPE)/Deputy Senior Procurement Executive (DSPE) for subsequent submission by the Secretary to Congress.

M803.806  Processing suspected violations.

VA employees shall report suspected violations of 31 U.S.C. 1352, Limitation on Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions, to the SPE/DSPE and the VA Office of the Inspector General.

Subpart M803.9 - Whistleblower Protections for Contractor Employees

M803.905  Procedures for Investigating Complaints.

The Deputy Senior Procurement Executive (DSPE) is the agency’s designee for actions required under FAR 3.905(b), (c), (d) and (e).

M803.906  Remedies.

The DSPE is the agency’s designee for actions required under FAR 3.906.

M803.907  Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (the Recovery Act).

M803.907-3  Procedures for filing complaints.

(c) A contracting officer who receives a complaint of reprisal of the type described in FAR 3.907–2 shall forward it to the Office of Inspector General in accordance with HCA procedures.

M803.907-6  Procedures for filing complaints.

(d) The DSPE is the agency’s designee for actions required under FAR 3.907-6.

M803.908  Pilot program for enhancement of contractor employee whistleblower protections.  [Reserved]

Subpart M803.10 - Contractor Code of Business Ethics and Conduct

M803.1003  Requirements.

(b) Notification of possible contractor violation.  Upon notification of a possible contractor violation of the type described in FAR 3.1003(b), the contracting officer shall, in accordance with HCA procedures, coordinate the matter with the supporting OGC and Office of Inspector General.

(c) When using FAR clause 52.203-14, Display of Hotline Poster(s), the contracting officer shall insert the following information in paragraph (b)(3):

Department of Veterans Affairs
VA Inspector General Hotline (53E)
810 Vermont Ave., NW
Washington, DC 20420
E-mail vaoighotline@va.gov
FAX (202) 495-5861

The Contractor may download the VA Inspector General Hotline Poster from the following website:  http://www.va.gov/oig/pubs/20130625-hotline-poster.pdf.

Subpart M803.11 - Preventing Personal Conflicts of Interest for Contractor Employees Performing Acquisition Functions

M803.1103  Procedures.

(a) The contracting officer shall use the “VA Contractor Non-Disclosure Agreement” in Appendix M803-A when a contractor’s employees, or employees of a subcontractor of any tier, are required to sign a non-disclosure agreement in accordance with FAR 3.1103(a)(2)(iii).

  VAAM Table of Contents VAAM Part M804 »