< Back to H.R. 4221 (111th Congress, 2009–2010)

Text of the Department of Veterans Affairs Acquisition Improvement Act of 2009

This bill was introduced on December 8, 2009, in a previous session of Congress, but was not enacted. The text of the bill below is as of Dec 8, 2009 (Introduced).

Source: GPO

I

111th CONGRESS

1st Session

H. R. 4221

IN THE HOUSE OF REPRESENTATIVES

December 8, 2009

(for himself, Mr. Roe of Tennessee, Mr. Bilbray, Mr. Lamborn, Mr. Brown of South Carolina, and Mr. Boozman) introduced the following bill; which was referred to the Committee on Veterans’ Affairs, and in addition to the Committee on Oversight and Government Reform, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend title 38, United States Code, to provide for improved acquisition practices by the Department of Veterans Affairs, and for other purposes.

1.

Short title

This Act may be cited as the Department of Veterans Affairs Acquisition Improvement Act of 2009.

2.

Assistant Secretary of Veterans Affairs for Acquisition, Construction, and Asset Management; additional Deputy Assistant Secretaries

(a)

In general

Section 308 of title 38, United States Code, is amended—

(1)

in subsection (b), by adding at the end the following new paragraph:

(12)

Acquisition, Construction, and Asset Management.

; and

(2)

in subsection (d)—

(A)

in paragraph (1), by striking 19 and inserting 26; and

(B)

by inserting at the end the following new paragraph:

(3)

The Secretary shall assign one Deputy Assistant Secretary to each of the following areas of responsibility:

(A)

Information technology acquisition.

(B)

Acquisition services for the Veterans Benefits Administration, the National Cemetery Administration, and the Department headquarters.

(C)

Construction acquisitions and leasing.

(D)

Acquisition services for the Veterans Health Administration.

(E)

National contracts, including contracts for health care products and services awarded by the National Acquisition Center (other than contracts for information technology).

(F)

Policy.

(G)

Asset Enterprise Management and Logistics.

.

(b)

Deadline for appointments

By not later than one year after the date of the enactment of this Act, the Secretary of Veterans Affairs shall assign an individual to carry out the responsibilities of the Assistant Secretary for Acquisition, Construction, and Asset Management, pursuant to paragraph (12) of section 308(b) of title 38, United States Code, as added by subsection (a), and individuals to carry out the responsibilities of the Deputy Assistant Secretaries pursuant to section 308(d) of such title, as amended by subsection (a).

3.

Chief Acquisition Officer

(a)

Establishment

Chapter 3 of title 38, United States Code, is amended by inserting after section 310 the following new section:

310A.

Chief Acquisition Officer; other acquisition officers

(a)

Establishment

There is in the Department a Chief Acquisition Officer. The Assistant Secretary for Acquisition, Construction, and Asset Management shall serve as the Chief Acquisition Officer.

(b)

Responsibilities

In addition to the responsibilities of the Chief Acquisition Officer under section 16 of the Office of Federal Procurement Policy Act (41 U.S.C. 414), the Chief Acquisition Officer shall carry out the following additional responsibilities:

(1)

Managing and monitoring the performance of Department acquisition activities.

(2)

Advising the Secretary on appropriate business strategies to meet the missions of the Department.

(3)

Awarding and administering contracts and purchases.

(4)

Increasing the use of full and open competition in the acquisitions processes of the Department.

(5)

Increasing the appropriate use of performance-based contracting and performance specifications in such processes.

(6)

Ensuring that acquisitions decisions are consistent with applicable laws.

(7)

Managing the direction of acquisition policy for the Department.

(8)

Establishing clear lines of authority, accountability, and responsibility for decision making within the Department with respect to acquisitions.

(9)

Developing and maintaining an acquisition career management program.

(c)

Qualifications

The individual appointed as Chief Acquisition Officer shall have the following qualifications:

(1)

Executive experience in acquisition in the Federal Government—

(A)

managing large projects or having responsibility for managing a corporate-type supply chain function;

(B)

defining and achieving performance results;

(C)

developing, negotiating, delivering, and managing successful and complex business arrangements across large organizations with competing interests;

(D)

building and managing executive relationships across organizational and functional boundaries; and

(E)

successfully using strategic resource management to achieve organizational goals.

(2)

Knowledge of the Federal Acquisition Regulation.

(3)

Knowledge of the Federal budget, appropriations, and legislative processes.

(d)

Acquisition workforce

All employees of the Department whose responsibilities relate to acquisition shall report directly to the Chief Acquisition Officer. Beginning on the date of the enactment of this section, no new employee may be hired as a Head of Contracting Authority or Chief Logistics Officer unless the Principal Deputy Assistant Secretary for Acquisition, Construction, and Asset Management approves the hire.

(e)

Principal Deputy Assistant Secretary for Acquisition, Construction, and Asset Management

(1)

There is in the Department a Principal Deputy Assistant Secretary for Acquisition, Construction, and Asset Management. The Principal Deputy Assistance Secretary for Acquisition, Construction, and Asset Management shall be the senior procurement executive for the Department and shall report directly to the Chief Acquisition Officer.

(2)

The position of Principal Deputy Assistant Secretary for Acquisition, Construction, and Asset Management shall for all purposes be considered to be a career reserve position within the meaning of section 3132(a)(8) of title 5.

(3)

The Principal Deputy Assistant Secretary for Acquisition, Construction, and Asset Management shall have primary responsibility for the following:

(A)

Acquisition policy and oversight.

(B)

Oversight of the Office of the Business Ombudsman, including the Competition Advocate and the Office of Business Oversight.

(C)

Training, management, and oversight of the acquisition workforce, including the Acquisition Academy of the Department.

(D)

Management and oversight of the Deputy Assistant Secretary responsible for awarding and administering contracts and purchases.

(f)

Deputy Assistant Secretaries for Acquisition

There are in the Department seven Deputy Assistant Secretaries for Acquisition who shall report directly to the Principal Deputy Assistant for Acquisition, Construction, and Asset Management. The Secretary or the Secretary’s designee shall assign to each Deputy Assistant Secretary one of the following functions:

(1)

Information technology acquisition.

(2)

Acquisition services for the Veterans Benefits Administration, the National Cemetery Administration and the Department headquarters.

(3)

Construction acquisition and leasing.

(4)

Veterans Health Administration acquisition.

(5)

National contracts, including contracts for health care products and services awarded by the National Acquisition Center.

(6)

Policy.

(7)

Asset enterprise management and logistics.

.

(b)

Clerical amendment

The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 310 the following new item:

310A. Chief Acquisition Officer; other acquisition officers.

.

(c)

Deadline for designations

(1)

Deadline for plan

Not later than 180 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall submit to Congress a plan for implementing section 310A of title 38, United States Code, as added by subsection (a).

(2)

Deadline for implementation

Not later than 18 months after the date of the enactment of this Act, the Secretary of Veterans Affairs shall fully implement the plan submitted under paragraph (1).

4.

Acquisition policy of Department of Veterans Affairs

(a)

Department-Wide policy required

(1)

Requirement

Subchapter II of chapter 81 of title 38, United States Code, is amended by adding at the end the following new section:

8129.

Department-wide acquisition policy

(a)

Policy required

The Secretary shall establish and maintain a comprehensive Department-wide acquisition program under which the Secretary shall develop, implement, and enforce a streamlined approach to entering into contracts and purchasing goods and services. Such program shall include the elements described in subsection (b).

(b)

Elements

The Secretary shall ensure that the Department-wide acquisition program includes the following elements:

(1)

The centralization under the Chief Acquisition Officer of all contracting activities of the Department, including purchasing, and including all contracting activities carried out by each Administration and staff office of the Department as of the date of the enactment of this section.

(2)

The establishment of acquisition goals to meet the mission needs of the Department.

(3)

The development of Department requirements with respect to acquisition.

(4)

The establishment of an overall acquisition strategy for the Department.

(5)

Soliciting and awarding contracts.

(6)

The management of acquisition system and contract performance.

(c)

Acquisition requirements

(1)

Except as provided in paragraph (2), an acquisition of any health care item by the Department shall be made through the use of a Federal supply schedule 65 or 66 contract awarded by the Department or a national contract that is awarded by or approved by the Department.

(2)
(A)

Paragraph (1) does not apply to an acquisition of a health care item in any of the following cases:

(i)

An acquisition necessary to meet a current or near-term medical emergency at a medical center.

(ii)

An acquisition for an item not listed in the Federal supply schedule or as part of a national contract and for which there is a valid clinical need.

(iii)

An acquisition for a specialized health care item not listed in the Federal supply schedule or as part of a national contract for the special needs of an individual patient who has one of the special needs identified in section 1706(b) of this title and who has a valid clinical need for the item.

(iv)

An acquisition that is part of an approved sharing agreement between the Department of Defense and the Department of Veterans Affairs with demonstrable cost-per-item savings for an item listed on the Federal supply schedule or a national contract.

(B)

An acquisition referred to in any of clauses (i) through (v) of subparagraph (A) may be made only if the acquisition is specifically authorized in advance in writing by the Secretary. The authority of the Secretary under the preceding sentence with respect to contracts awarded by the Department may be delegated only to the Assistant Secretary for Acquisition, Construction, and Asset Management.

(3)

Before entering into either a new Federal supply schedule contract or a new national contract, the Chief Acquisition Officer may amend any clause of the Federal Acquisition Regulation otherwise required to be included in the contract in such manner as the Chief Acquisition Officer determines necessary to protect the interests of the Government.

(4)

In the case of an emergency acquisition of a health care item under paragraph (2)(B), the quantity of the item procured may not exceed the quantity of that item that meets the reasonably foreseeable need for the item at the medical facility concerned until resupply can be achieved through an acquisition action other than an emergency acquisition.

(d)

Procedures To assure compliance

(1)

The Secretary shall establish procedures to assure compliance by each Department medical facility with the provisions of this section and with applicable Federal and Department acquisition regulations.

(2)

The procedures established by the Secretary under paragraph (1) shall be designed to maximize the availability of health care items and the use of the Federal supply schedule by the Department.

(3)

The procedures established by the Secretary under paragraph (1) shall include procedures designed to standardize items at the local, regional, or national level to provide special patient populations (as identified in section 1706(b) of this title) with the range and types of health care items required to meet their clinical and quality-of-life needs.

(4)

The Advisory Committee on Prosthetics and Special-Disabilities Programs established under section 543 of this title shall review the procedures referred to in paragraph (3), including the implementation of those procedures.

(e)

Annual goals

(1)

The Secretary shall establish annual goals for Department medical facilities for the purchase of health care items from Federal supply schedule contracts and national contracts meeting the requirements of subsection (d). Such goals shall be designed to maximize the percentage of such purchases that are made through such contracts.

(2)

Achievement of the goals established under this subsection shall be an element in the performance standards for employees of the Department who have the authority and responsibility for achieving those goals.

(f)

Relationship to other provisions of law

A provision of law that is inconsistent with any provision of this section shall not apply, to the extent of the inconsistency, to the acquisition of a health care item for the Department.

(g)

Report

(1)

Not later than December 31 each year, the Secretary shall submit to the Committees on Veterans’ Affairs of the Senate and House of Representatives a report on the acquisition of health care items during the preceding fiscal year. Each such report shall include, for the year covered by the report, the following:

(A)

The total dollar amount of all items listed in Federal supply schedule 65 or 66 and the total dollar value of the exceptions to subsection (c)(1) under each of clauses (i), (ii), (ii), (iv), and (v) of subsection (c)(2)(A), shown by medical facility.

(B)

A detailed explanation for such exceptions, including—

(i)

any uses of emergency acquisition authority at Department medical facilities;

(ii)

any authorizations under subsection (c)(2)(A) for acquisition of items not listed on the Federal supply schedules or on national contracts; and

(iii)

any exceptions granted for special health care needs of veterans with disabilities described in section 1706(b) of this title.

(C)

An analysis of sharing agreements between the Department and the Department of Defense, including the basic sharing initiative and the division of financial responsibility between the two Departments.

(D)

The stated Department goal under each acquisition preference program, together with an assessment of the performance of the Department toward achievement of such goals, including any goals for contracting with businesses that are owned and controlled by veterans or veterans with service-connected disabilities.

(2)

The Advisory Committee on Prosthetics and Special-Disabilities Programs of the Department shall submit comments on each report under paragraph (1) before the report is submitted under that paragraph, and the Secretary shall include those comments in the report as submitted.

(3)

For the purposes of this subsection:

(A)

The term health care item includes any item other than services listed in any Federal Supply Classification other than Federal supply schedule 65 or 66 over which the Department has been delegated authority.

(B)

The term national contract means a contract for the acquisition of an item that is entered into by the National Acquisition Center of the Department or another Department acquisition activity, as authorized by the Secretary, that is available for use by all Department medical facilities.

(C)

The term valid clinical need means a clinical need that is valid in the professional judgment of an appropriate clinician. Such term applies to health care items, prosthetic appliances, sensory or mobility aids and supplies that are prescribed by a physician for special patient populations such as veterans with spinal cord dysfunction, blindness, amputations, and other veterans included in section 1706(b) of this title.

(D)

The term Federal supply schedule contract means a contract that is awarded and administered by the National Acquisition Center of the Department, under a delegation of authority as of the date of the enactment of this section or a contract that is awarded and administered by the Department under regulations prescribed under section 8130 of this title.

(E)

The term emergency acquisition means an acquisition necessary to meet an emergency need affecting the health or safety of a person being furnished health care services by the Department.

.

(2)

Clerical amendment

The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 8128 the following new item:

8129. Department-wide acquisition policy.

.

(b)

Deadline for implementation

The acquisition policy required by section 8129 of title 38, United States Code, as added by subsection (a), shall be fully implemented by the date that is 18 months after the date of the enactment of this Act.

5.

Authority for Secretary of Veterans Affairs to enter into certain personal services contracts

(a)

Contracts for scarce medical specialist services

Section 7409(a) of title 38, United States Code, is amended, in the first sentence, by inserting , including personal services contracts, after contracts.

(b)

Sharing of health care resources with Department of Defense

Section 8111(a) of such title is amended by inserting , including personal services contracts, after contracts.

(c)

Sharing of health care resources

Section 8153(a) of such title is amended by inserting , including a personal services contract, after contract.

(d)

Deadline for regulations

Not later than 180 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall prescribe regulations to carry out the amendments made by this section.

6.

Award and administration of certain Federal supply schedules by Secretary of Veterans Affairs

(a)

Expansion of definition of competitive procedures

Section 309(b) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 259) is amended—

(1)

in paragraph (4), by striking and at the end;

(2)

in paragraph (5), by striking the period and inserting ; and; and

(3)

by adding at the end the following new paragraph:

(6)

the procedures established by the Secretary of Veterans Affairs for the use of certain Federal supply schedules, pursuant to regulations prescribed under section 8130 of title 38, United States Code, if—

(A)

the procedures provide that the use of any such supply schedule has been open to all responsible sources; and

(B)

orders and contracts under such procedures result in the lowest cost alternative to meet the needs of the Government.

.

(b)

Authority of Secretary of Veterans Affairs

(1)

In general

Subchapter II of chapter 81 of title 38, United States Code, as amended by section 3, is further amended by adding at the end the following new section:

8130.

Award and administration of certain Federal supply schedules

(a)

Regulations

The Secretary shall prescribe regulations to provide procedures for soliciting, negotiating, awarding, and administering the Federal supply schedules described in subsection (c).

(b)

Contract clause requirements

The regulations prescribed under subsection (a) shall require that a contract entered into by the Secretary under a Federal supply schedule shall include pre- and post-award audit clauses, an economic price adjustment clause, a price reductions clause, and a price adjustment for failure to provide accurate information clause.

(c)

Applicability

This section shall apply with respect to any Federal supply schedule for which the authority to administer such schedule is transferred from the Administrator of General Services to the Secretary of Veterans Affairs, whether such authority is transferred before, on, or after the date of the enactment of this section.

.

(2)

General Services Administration rules and regulations

Until the Secretary of Veterans Affairs prescribes regulations under section 8130(a) of title 38, United States Code (as added by paragraph (1)), the Secretary shall comply with the rules and regulations relating to the Federal supply schedules prescribed by the Administrator of General Services that were in effect on the date of the enactment of this Act.

(3)

Clerical amendment

The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 8130, as added by section 3, the following new item:

8130. Administration of Federal supply schedule.

.

(4)

Deadline for regulations

Not later than 180 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall prescribe the regulations required under section 8130 of title 38, United States Code, as added by paragraph (1).

7.

Improvement of Department of Veterans Affairs small business contracting goals

(a)

Additional requirement

Section 8127(c) of title 38, United States Code, is amended—

(1)

in paragraph (2), by striking and at the end;

(2)

in paragraph (3), by striking the period and inserting the following: ; and; and

(3)

by adding at the end the following new paragraph:

(4)

in the case of a contract for the purchase of a commercial item, the vendor of the item is a manufacturer or a regular dealer.

.

(b)

Complaint process for use of restricted competition

Subsection (d) of such section is amended—

(1)

by striking Except as provided and inserting (1) Except as provided; and

(2)

by adding at the end the following new paragraph:

(2)

Any complaint regarding the noncompliance of a contracting officer with this subsection shall be submitted to the Secretary.

.

(c)

Eligibility

Subsection (e) of such section is amended—

(1)

by striking only if the small business concern and the veteran and all that follows and inserting only if—; and

(2)

by adding at the end the following new paragraphs:

(1)

the small business concern and the veteran owner of the small business concern are listed in the database of veteran-owned businesses maintained by the Secretary under subsection (f);

(2)

the Secretary has performed the verification functions of the Secretary under paragraph (4) of such subsection with respect to the small business concern; and

(3)

the contract is only for the procurement of a good or service with an North American Industry Classification System code specified by the Secretary under paragraph (9) of that subsection for the small business concern.

.

(d)

Database

Subsection (f) of such section is amended by adding at the end the following new paragraphs:

(7)

The Secretary may not include in the database a small business concern that is the vendor of a commercial item unless the concern is the manufacturer or regular dealer of the item, unless the Secretary specifically provides for a waiver of such requirement for such concern.

(8)

The Secretary shall establish specific criteria to be used in carrying out the verification functions under paragraph (4), including criteria requiring specific documentation and certifications from each small business concern proposed to be included in the database.

(9)

For each small business concern included in the database, the Secretary shall specify the North American Industry Classification System code or codes of the goods and services that may be procured by the Department from such concern.

.

(e)

Definitions

Subsection (l) of such section is amended by adding at the end the following new items:

(3)

The term commercial item has the meaning given that term in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 203(12)) as long as items and services directly relating to the sale of such a commercial item are offered to commercial customers.

(4)

The term management and daily business operations includes—

(A)

with respect to a contract for the provision of services, the services to be performed by a contract awarded under this section; and

(B)

with respect to a contract for the provision of goods that are not manufactured by the small business concern in question, the provision of services relating directly to the sale of such goods.

(5)

The term regular dealer with respect to any contract means a person who owns, operates, or maintains a store, warehouse, or other establishment in which the commodities or goods of the general character described by the specifications and required under the contract are bought, kept in stock, and sold to the public in the usual course of business.

.

(f)

Deadline for establishment of criteria

Not later than 180 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall establish criteria for the use of sole source contracts for Department of Veterans Affairs contracts above the simplified acquisition threshold.