Government Contracts VAAR Rule Implements Class Deviation on Set-Aside Priorities
Monday, July 15, 2019

VAAR Rule Implements Class Deviation on Set-Aside Priorities

By Government Contracts Editorial Staff

A temporary rule issued by the Department of Veterans Affairs implements a class deviation from VAAR Part 808, Required Sources of Supplies and Services. The deviation implements the 2018 mandate of the Court of Appeals for the Federal Circuit in PDS Consultants, Inc. v. U.S., et al. (62 CCF ¶81,501). PDS Consultants 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 Javits Wagner O’Day Act (41 USC 8504), VA must apply its Rule of Two (38 USC 8127(d)) before awarding a contract to a qualified nonprofit organization. Accordingly, the class deviation to VAAR 808.002 and VAAR 808.603 requires VA contracting officers to apply the VA Rule of Two, as implemented in VAAR Subpart 819.70, before awarding a contract to a JWOD qualified nonprofit organization or Federal Prison Industries, Inc. The deviation clarifies that if VA is unable to make an award to a Vendor Information Pages-listed and verified service-disabled veteran-owned small business or VOSB using the VAAR Subpart 819.70 procedures, AbilityOne and FPI retain their mandatory source status. The rule is effective June 24, 2019, through July 1, 2021. The class deviation went into effect on May 20, 2019. Comments are due July 24, 2019. For the text of the temporary rule, see ¶73,010.33.

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