- § 8121. Revolving supply fund
- § 8122. Authority to procure and dispose of property and to negotiate for common services
- § 8123. Procurement of prosthetic appliances
- § 8124. Grant of easements in Government-owned lands
- § 8125. Procurement of health-care items
- § 8126. Limitation on prices of drugs procured by Department and certain other Federal agencies
- § 8127. Small business concerns owned and controlled by veterans: contracting goals and preferences
- § 8128. Small business concerns owned and controlled by veterans: contracting priority
- § 8129. Preference for offerors employing veterans
§ 8121. Revolving supply fund
(a) The revolving supply fund established for the operation and maintenance of a supply system for the Department (including procurement of supplies, equipment, and personal services and the repair and reclamation of used, spent, or excess personal property) shall be—
(1) available without fiscal year limitations for all expenses necessary for the operation and maintenance of such supply system;
(2) reimbursed from appropriations for the cost of all services, equipment, and supplies furnished, at rates determined by the Secretary on the basis of estimated or actual direct cost (which may be based on the cost of recent significant purchases of the equipment or supply item involved) and indirect cost; and
(3) credited with advances from appropriations for activities to which services or supplies are to be furnished, and all other receipts resulting from the operation of the fund, including property returned to the supply system when no longer required by activities to which it had been furnished, the proceeds of disposal of scrap, excess or surplus personal property of the fund, and receipts from carriers and others for loss of or damage to personal property.
(b) The Secretary may authorize the Secretary of Defense to make purchases through the fund in the same manner as activities of the Department. When services, equipment, or supplies are furnished to the Secretary of Defense through the fund, the reimbursement required by paragraph (2) of subsection (a) shall be made from appropriations made to the Department of Defense, and when services or supplies are to be furnished to the Department of Defense, the fund may be credited, as provided in paragraph (3) of subsection (a), with advances from appropriations available to the Department of Defense.
(c) At the end of each fiscal year, there shall be covered into the Treasury of the United States as miscellaneous receipts such amounts as the Secretary determines to be in excess of the requirements necessary for the maintenance of adequate inventory levels and for the effective financial management of the revolving supply fund.
(d) An adequate system of accounts for the fund shall be maintained on the accrual method, and financial reports prepared on the basis of such accounts. An annual business type budget shall be prepared for operations under the fund.
(e) The Secretary is authorized to capitalize, at fair and reasonable values as determined by the Secretary, all supplies and materials and depot stocks of equipment on hand or on order.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1253, § 5011; amended Pub. L. 87–314, Sept. 26, 1961, 75 Stat. 675; Pub. L. 94–581, title II, § 210(e)(6), Oct. 21, 1976, 90 Stat. 2865; renumbered § 5021, Pub. L. 96–22, title III, § 301(b)(1), June 13, 1979, 93 Stat. 61; Pub. L. 96–330, title IV, § 402(a), Aug. 26, 1980, 94 Stat. 1051; renumbered § 8121, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 108–170, title IV, § 403(a), Dec. 6, 2003, 117 Stat. 2062.)
§ 8122. Authority to procure and dispose of property and to negotiate for common services
(a)
(1) The Secretary may lease for a term not exceeding three years lands or buildings, or parts or parcels thereof, belonging to the United States and under the Secretary’s control. Any lease made pursuant to this subsection to any public or nonprofit organization may be made without regard to the provisions of section 6101(b) to (d) of title 41. Notwithstanding section 1302 of title 40, or any other provision of law, a lease made pursuant to this subsection to any public or nonprofit organization may provide for the maintenance, protection, or restoration, by the lessee, of the property leased, as a part or all of the consideration for the lease. Prior to the execution of any such lease, the Secretary shall give appropriate public notice of the Secretary’s intention to do so in the newspaper of the community in which the lands or buildings to be leased are located. The proceeds from such leases, less expenses for maintenance, operation, and repair of buildings leased for living quarters, shall be covered into the Treasury of the United States as miscellaneous receipts.
(2) Except as provided in paragraph (3), the Secretary may not during any fiscal year transfer to any other department or agency of the United States or to any other entity real property that is owned by the United States and administered by the Secretary unless the proposed transfer is described in the budget submitted to Congress pursuant to section 1105 of title 31 for that fiscal year.
(3)
(A) Subject to subparagraph (B) of this paragraph, the Secretary may, without regard to paragraph (2) of this subsection or any other provision of law relating to the disposition of real property by the United States, transfer to a State for use as the site of a State nursing-home or domiciliary facility real property described in subparagraph (E) of this paragraph which the Secretary determines to be excess to the needs of the Department.
(B) A transfer of real property may not be made under this paragraph unless—
(i) the Secretary has determined that the State has provided sufficient assurance that it has the resources (including any resources which are reasonably likely to be available to the State under subchapter III of chapter 81 of this title and section 1741 of this title) necessary to construct and operate a State home nursing or domiciliary care facility; and
(ii) the transfer is made subject to the conditions (I) that the property be used by the State for a nursing-home or domiciliary care facility in accordance with the conditions and limitations applicable to State home facilities constructed with assistance under subchapter III of chapter 81 of this title, and (II) that, if the property is used at any time for any other purpose, all right, title, and interest in and to the property shall revert to the United States.
(C) A transfer of real property may not be made under this paragraph until—
(i) the Secretary submits to the Committees on Veterans’ Affairs of the Senate and House of Representatives, not later than June 1 of the year in which the transfer is proposed to be made (or the year preceding that year), a report providing notice of the proposed transfer; and
(ii) a period of 90 consecutive days elapses after the report is received by those committees.
(D) A transfer under this paragraph shall be made under such additional terms and conditions as the Secretary considers appropriate to protect the interests of the United States.
(E) Real property described in this subparagraph is real property that is owned by the United States and administered by the Secretary.
(b) The Secretary may, for the purpose of extending benefits to veterans and dependents, and to the extent the Secretary deems necessary, procure the necessary space for administrative purposes by lease, purchase, or construction of buildings, or by condemnation or declaration of taking, pursuant to law.
(c) The Secretary may procure laundry services, and other common services as specifically approved by the Secretary from nonprofit, tax-exempt educational, medical or community institutions, without regard to the requirements of section 302(c) 1
1 See References in Text note below.
of the Federal Property and Administrative Services Act of 1949, as amended, whenever such services are not reasonably available from private commercial sources. Notwithstanding this exclusion, the provisions of sections 3901 and 3905 of title 41 shall apply to procurement authorized by this subsection.(d)
(1) Real property under the jurisdiction of the Secretary may not be declared excess by the Secretary and disposed of by the General Services Administration or any other entity of the Federal Government unless the Secretary determines that the property is no longer needed by the Department in carrying out its functions and is not suitable for use for the provision of services to homeless veterans by the Department or by another entity under an enhanced-use lease of such property under section 8162 of this title.
(2) The Secretary may transfer real property under this section, or under section 8118 of this title, if the Secretary—
(A) places a notice in the real estate section of local newspapers and in the Federal Register of the Secretary’s intent to transfer that real property (including land, structures, and equipment associated with the property);
(B) holds a public hearing;
(C) provides notice to the Administrator of General Services of the Secretary’s intention to transfer that real property and waits for 30 days to elapse after providing that notice; and
(D) after such 30-day period has elapsed, notifies the congressional veterans’ affairs committees of the Secretary’s intention to dispose of the property and waits for 60 days to elapse from the date of that notice.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1253, § 5012; amended Pub. L. 89–785, title II, § 202(a), (b), Nov. 7, 1966, 80 Stat. 1373; Pub. L. 93–82, title III, § 302(2), Aug. 2, 1973, 87 Stat. 195; Pub. L. 94–581, title II, § 210(e)(7), Oct. 21, 1976, 90 Stat. 2865; renumbered § 5022 and amended Pub. L. 96–22, title III, § 301(b), June 13, 1979, 93 Stat. 61; Pub. L. 96–330, title IV, § 403(a), Aug. 26, 1980, 94 Stat. 1052; Pub. L. 97–295, § 4(91), Oct. 12, 1982, 96 Stat. 1313; Pub. L. 98–160, title IV, § 401, Nov. 21, 1983, 97 Stat. 1004; Pub. L. 100–322, title IV, § 421(a)(1), May 20, 1988, 102 Stat. 552; Pub. L. 100–687, div. B, title XV, § 1505, Nov. 18, 1988, 102 Stat. 4135; renumbered § 8122 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–54, § 14(f)(5), June 13, 1991, 105 Stat. 288; Pub. L. 102–83, §§ 4(a)(1), (3), (4), (b)(1), (2)(E), 5(c)(1), Aug. 6, 1991, 105 Stat. 403–406; Pub. L. 107–95, § 10(a), Dec. 21, 2001, 115 Stat. 920; Pub. L. 107–217, § 3(j)(3), Aug. 21, 2002, 116 Stat. 1300; Pub. L. 108–422, title IV, § 411(e)(1), (2), Nov. 30, 2004, 118 Stat. 2389, 2390; Pub. L. 111–350, § 5(j)(6), Jan. 4, 2011, 124 Stat. 3850.)
§ 8123. Procurement of prosthetic appliances
The Secretary may procure prosthetic appliances and necessary services required in the fitting, supplying, and training and use of prosthetic appliances by purchase, manufacture, contract, or in such other manner as the Secretary may determine to be proper, without regard to any other provision of law.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1254, § 5013; amended Pub. L. 94–581, title II, § 210(e)(8), Oct. 21, 1976, 90 Stat. 2865; renumbered § 5023, Pub. L. 96–22, title III, § 301(b)(1), June 13, 1979, 93 Stat. 61; renumbered § 8123, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405.)
§ 8124. Grant of easements in Government-owned lands
The Secretary, whenever the Secretary deems it advantageous to the Government and upon such terms and conditions as the Secretary deems advisable, may grant on behalf of the United States to any State, or any agency or political subdivision thereof, or to any public-service company, easements in and rights-of-way over lands belonging to the United States which are under the Secretary’s supervision and control. Such grant may include the use of such easements or rights-of-way by public utilities to the extent authorized and under the conditions imposed by the laws of such State relating to use of public highways. Such partial, concurrent, or exclusive jurisdiction over the areas covered by such easements or rights-of-way, as the Secretary deems necessary or desirable, is hereby ceded to the State in which the land is located. The Secretary may accept or secure on behalf of the United States from the State in which is situated any land conveyed in exchange for any such easement or right-of-way, such jurisdiction as the Secretary may deem necessary or desirable over the land so acquired. Any such easement or right-of-way shall be terminated upon abandonment or nonuse of the same and all right, title, and interest in the land covered thereby shall thereupon revert to the United States or its assignee.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1254, § 5014; amended Pub. L. 94–581, title II, § 210(e)(9), Oct. 21, 1976, 90 Stat. 2865; renumbered § 5024, Pub. L. 96–22, title III, § 301(b)(1), June 13, 1979, 93 Stat. 61; renumbered § 8124, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405.)
§ 8125. Procurement of health-care items
(a) Except as provided in subsections (b) and (c) of this section, the Secretary may not procure health-care items under local contracts.
(b)
(1) A health-care item for use by the Department may be procured under a local contract if—
(A) the procurement is within the limits prescribed in paragraph (3) of this subsection; and
(B)
(i) the item is not otherwise available to the Department medical center concerned,
(ii) procurement of the item by a local contract is necessary for the effective furnishing of health-care services or the conduct of a research or education program at a Department medical center, as determined by the director of the center in accordance with regulations which the Under Secretary for Health shall prescribe, or
(iii) procurement under a local contract is demonstrably more cost-effective for the item.
(2) In the case of the need for an emergency procurement of a health-care item, such item may be procured under a local contract, but no greater quantity of such item may be procured by a local contract than is reasonably necessary to meet the emergency need and the reasonably foreseeable need for the item at the medical center concerned until resupply can be achieved through procurement actions other than emergency procurement.
(3)
(A) Except as provided in subparagraphs (C) and (D) of this paragraph, not more than 20 percent of the total of all health-care items procured by the Department in any fiscal year (measured as a percent of the total cost of all such health-care items procured by the Department in that fiscal year) may be procured under local contracts.
(B) Local contracts for the procurement of health-care items shall, to the maximum extent feasible, be awarded to regular dealers or manufacturers engaged in the wholesale supply of such items.
(C) The Secretary may increase for a fiscal year the percentage specified in subparagraph (A) of this section to a percentage not greater than 30 percent if the Secretary, based on the experience of the Department during the two fiscal years preceding such fiscal year, determines that the increase and the amount of the increase are necessary in the interest of the effective furnishing of health-care services by the Department. The authority to increase such percentage may not be delegated.
(D) Items procured through an emergency procurement shall not be counted for the purpose of this paragraph.
(c) A provision of law that is inconsistent with subsection (a) or (b) of this section shall not apply, to the extent of the inconsistency, to the procurement of a health-care item for use by the Department.
(d) For the purposes of this section:
(1) The term “health-care item” includes any item listed in, or (as determined by the Secretary) of the same nature as an item listed in, Federal Supply Classification (FSC) Group 65 or 66. Effective December 1, 1992, such term also includes any item listed in, or (as determined by the Secretary) of the same nature as an item listed in, Federal Supply Classification (FSC) Group 73. Such term does not include perishable items.
(2) The term “local contract” means a contract entered into by a Department medical center for procurement of an item for use by that medical center.
(3) The term “emergency procurement” means a procurement necessary to meet an emergency need, affecting the health or safety of a person being furnished health-care services by the Department, for an item.
(Added Pub. L. 100–322, title IV, § 403(a)(1), May 20, 1988, 102 Stat. 543, § 5025; amended Pub. L. 100–687, div. B, title XV, § 1507(b), (c), Nov. 18, 1988, 102 Stat. 4136, 4137; renumbered § 8125, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 102–405, title III, § 302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 107–14, § 8(a)(15), June 5, 2001, 115 Stat. 35; Pub. L. 113–188, title XVII, § 1701, Nov. 26, 2014, 128 Stat. 2026.)
§ 8126. Limitation on prices of drugs procured by Department and certain other Federal agencies
(a) Each manufacturer of covered drugs shall enter into a master agreement with the Secretary under which—
(1) beginning January 1, 1993, the manufacturer shall make available for procurement on the Federal Supply Schedule of the General Services Administration each covered drug of the manufacturer;
(2) with respect to each covered drug of the manufacturer procured by a Federal agency described in subsection (b) on or after January 1, 1993, that is purchased under depot contracting systems or listed on the Federal Supply Schedule, the manufacturer has entered into and has in effect a pharmaceutical pricing agreement with the Secretary (or the Federal agency involved, if the Secretary delegates to the Federal agency the authority to enter into such a pharmaceutical pricing agreement) under which the price charged during the one-year period beginning on the date on which the agreement takes effect may not exceed 76 percent of the non-Federal average manufacturer price (less the amount of any additional discount required under subsection (c)) during the one-year period ending one month before such date (or, in the case of a covered drug for which sufficient data for determining the non-Federal average manufacturer price during such period are not available, during such period as the Secretary considers appropriate), except that such price may nominally exceed such amount if found by the Secretary to be in the best interests of the Department or such Federal agencies;
(3) with respect to each covered drug of the manufacturer procured by a State home receiving funds under section 1741 of this title, the price charged may not exceed the price charged under the Federal Supply Schedule at the time the drug is procured; and
(4) unless the manufacturer meets the requirements of paragraphs (1), (2), and (3), the manufacturer may not receive payment for the purchase of drugs or biologicals from—
(A) a State plan under title XIX of the Social Security Act, except as authorized under section 1927(a)(3) of such Act,
(B) any Federal agency described in subsection (b), or
(C) any entity that receives funds under the Public Health Service Act.
(b) The Federal agencies described in this subsection are as follows:
(1) The Department.
(2) The Department of Defense.
(3) The Public Health Service, including the Indian Health Service.
(4) The Coast Guard.
(c) With respect to any covered drug the price of which is determined in accordance with a pharmaceutical pricing agreement entered into pursuant to subsection (a)(2), beginning on or after January 1, 1993, the manufacturer shall provide a discount in an amount equal to the amount by which the change in non-Federal price exceeds the amount equal to—
(1) the non-Federal average manufacturer price of the drug during the 3-month period that ends one year before the last day of the month preceding the month during which the contract for the covered drug goes into effect (or, in the case of a covered drug for which sufficient data for determining the non-Federal average manufacturer price during such period is not available, during such period as the Secretary considers appropriate); multiplied by
(2) the percentage increase in the Consumer Price Index for all urban consumers (U.S. city average) between the last month of the period described in paragraph (1) and the last month preceding the month during which the contract goes into effect for which Consumer Price Index data is available.
(d) In the case of a covered drug of a manufacturer that has entered into a multi-year contract with the Secretary under subsection (a)(2) for the procurement of the drug—
(1) during any one-year period that follows the first year for which the contract is in effect, the contract price charged for the drug may not exceed the contract price charged during the preceding one-year period, increased by the percentage increase in the Consumer Price Index for all urban consumers (U.S. city average) during the 12-month period ending with the last month of such preceding one-year period for which Consumer Price Index data is available; and
(2) in applying subsection (c) to determine the amount of the discount provided with respect to the drug during a year that follows the first year for which the contract is in effect, any reference in such subsection to “the month during which the contract goes into effect” shall be considered a reference to the first month of such following year.
(e)
(1) The manufacturer of any covered drug the price of which is determined in accordance with a pharmaceutical pricing agreement entered into pursuant to subsection (a)(2) shall—
(A) not later than 30 days after the first day of the last quarter that begins before the agreement takes effect (or, in the case of an agreement that takes effect on January 1, 1993, not later than December 4, 1992), report to the Secretary the non-Federal average manufacturer price for the drug during the one-year period that ends on the last day of the previous quarter; and
(B) not later than 30 days after the last day of each quarter for which the agreement is in effect, report to the Secretary the non-Federal average manufacturer price for the drug during such quarter.
(2) The provisions of subparagraphs (B) and (C) of section 1927(b)(3) of the Social Security Act shall apply to drugs described in paragraph (1) and the Secretary in the same manner as such provisions apply to covered outpatient drugs and the Secretary of Health and Human Services under such subparagraphs, except that references in such subparagraphs to prices or information reported or required under “subparagraph (A)” shall be deemed to refer to information reported under paragraph (1).
(3) In order to determine the accuracy of a drug price that is reported to the Secretary under paragraph (1), the Secretary may audit the relevant records of the manufacturer or of any wholesaler that distributes the drug, and may delegate the authority to audit such records to the appropriate Federal agency described in subsection (b).
(4) Any information contained in a report submitted to the Secretary under paragraph (1) or obtained by the Secretary through any audit conducted under paragraph (3) shall remain confidential, except as the Secretary determines necessary to carry out this section and to permit the Comptroller General and the Director of the Congressional Budget Office to review the information provided.
(f) The Secretary shall supply to the Secretary of Health and Human Services—
(1) upon the execution or termination of any master agreement, the name of the manufacturer, and
(2) on a quarterly basis, a list of manufacturers who have entered into master agreements under this section.
(g)
(1) Any reference in this section to a provision of the Social Security Act shall be deemed to be a reference to the provision as in effect on November 4, 1992.
(2) A manufacturer is deemed to meet the requirements of subsection (a) if the manufacturer establishes to the satisfaction of the Secretary that the manufacturer would comply (and has offered to comply) with the provisions of this section (as in effect immediately after the enactment of this section), and would have entered into an agreement under this section (as such section was in effect at such time), but for a legislative change in this section after November 4, 1992.
(h) In this section:
(1) The term “change in non-Federal price” means, with respect to a covered drug that is subject to an agreement under this section, an amount equal to—
(A) the non-Federal average manufacturer price of the drug during the 3-month period that ends with the month preceding the month during which a contract goes into effect (or, in the case of a covered drug for which sufficient data for determining the non-Federal average manufacturer price during such period is not available, during such period as the Secretary considers appropriate); minus
(B) the non-Federal average manufacturer price of the drug during the 3-month period that ends one year before the end of the period described in subparagraph (A) (or, in the case of a covered drug for which sufficient data for determining the non-Federal average manufacturer price during such period is not available, during such period preceding the period described in subparagraph (A) as the Secretary considers appropriate).
(2) The term “covered drug” means—
(A) a drug described in section 1927(k)(7)(A)(ii) of the Social Security Act, or that would be described in such section but for the application of the first sentence of section 1927(k)(3) of such Act;
(B) a drug described in section 1927(k)(7)(A)(iv) of the Social Security Act, or that would be described in such section but for the application of the first sentence of section 1927(k)(3) of such Act; or
(C) any biological product identified under section 600.3 of title 21, Code of Federal Regulations.
(3) The term “depot” means a centralized commodity management system through which covered drugs procured by an agency of the Federal Government are—
(A) received, stored, and delivered through—
(i) a federally owned and operated warehouse system, or
(ii) a commercial entity operating under contract with such agency; or
(B) delivered directly from the commercial source to the entity using such covered drugs.
(4) The term “manufacturer” means any entity which is engaged in—
(A) the production, preparation, propagation, compounding, conversion, or processing of prescription drug products, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, or
(B) in the packaging, repackaging, labeling, relabeling, or distribution of prescription drug products.
Such term does not include a wholesale distributor of drugs or a retail pharmacy licensed under State law.
(5) The term “non-Federal average manufacturer price” means, with respect to a covered drug and a period of time (as determined by the Secretary), the weighted average price of a single form and dosage unit of the drug that is paid by wholesalers in the United States to the manufacturer, taking into account any cash discounts or similar price reductions during that period, but not taking into account—
(A) any prices paid by the Federal Government; or
(B) any prices found by the Secretary to be merely nominal in amount.
(6) The term “weighted average price” means, with respect to a covered drug and a period of time (as determined by the Secretary) an amount equal to—
(A) the sum of the products of the average price per package unit of each quantity of the drug sold during the period and the number of package units of the drug sold during the period; divided by
(B) the total number of package units of the drug sold during the period.
(i)
(1) If the Secretary modifies a multi-year contract described in subsection (d) to include a covered drug of the manufacturer that was not available for inclusion under the contract at the time the contract went into effect, the price of the drug shall be determined as follows:
(A) For the portion of the first contract year during which the drug is so included, the price of the drug shall be determined in accordance with subsection (a)(2), except that the reference in such subsection to “the one-year period beginning on the date the agreement takes effect” shall be considered a reference to such portion of the first contract year.
(B) For any subsequent contract year, the price of the drug shall be determined in accordance with subsection (d), except that each reference in such subsection to “the first year for which the contract is in effect” shall be considered a reference to the portion of the first contract year during which the drug is included under the contract.
(2) In this subsection, the term “contract year” means any one-year period for which a multi-year contract described in subsection (d) is in effect.
(Added Pub. L. 102–585, title VI, § 603(a)(1), Nov. 4, 1992, 106 Stat. 4971; amended Pub. L. 103–18, § 1(a), Apr. 12, 1993, 107 Stat. 53; Pub. L. 103–446, title XII, § 1201(e)(27), (f)(6), Nov. 2, 1994, 108 Stat. 4686, 4687; Pub. L. 104–106, div. A, title VII, § 737(a), Feb. 10, 1996, 110 Stat. 383; Pub. L. 105–115, title I, § 125(b)(2)(E), Nov. 21, 1997, 111 Stat. 2325.)
§ 8127. Small business concerns owned and controlled by veterans: contracting goals and preferences
(a)Contracting Goals.—
(1) In order to increase contracting opportunities for small business concerns owned and controlled by veterans and small business concerns owned and controlled by veterans with service-connected disabilities, the Secretary shall—
(A) establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans who are not veterans with service-connected disabilities in accordance with paragraph (2); and
(B) establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans with service-connected disabilities in accordance with paragraph (3).
(2) The goal for a fiscal year for participation under paragraph (1)(A) shall be determined by the Secretary.
(3) The goal for a fiscal year for participation under paragraph (1)(B) shall be not less than the Government-wide goal for that fiscal year for participation by small business concerns owned and controlled by veterans with service-connected disabilities under section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)).
(4) The Secretary shall establish a review mechanism to ensure that, in the case of a subcontract of a Department contract that is counted for purposes of meeting a goal established pursuant to this section, the subcontract was actually awarded to a business concern that may be counted for purposes of meeting that goal.
(b)Use of Noncompetitive Procedures for Certain Small Contracts.—Except as provided in subsection (d)(2), for purposes of meeting the goals under subsection (a), and in accordance with this section, in entering into a contract with a small business concern owned and controlled by veterans or a small business concern owned and controlled by veterans with service-connected disabilities for an amount less than the simplified acquisition threshold (as defined in section 134 of title 41), a contracting officer of the Department may use procedures other than competitive procedures.
(c)Sole Source Contracts for Contracts Above Simplified Acquisition Threshold.—Except as provided in subsection (d)(2), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department may award a contract to a small business concern owned and controlled by veterans or a small business concern owned and controlled by veterans with service-connected disabilities using procedures other than competitive procedures if—
(1) such concern is determined to be a responsible source with respect to performance of such contract opportunity;
(2) the anticipated award price of the contract (including options) will exceed the simplified acquisition threshold (as defined in section 134 of title 41) but will not exceed $5,000,000; and
(3) in the estimation of the contracting officer, the contract award can be made at a fair and reasonable price that offers best value to the United States.
(d)Use of Restricted Competition.—
(1) Except as provided in paragraph (2) and in subsections (b) and (c), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans or small business concerns owned and controlled by veterans with service-connected disabilities if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans or small business concerns owned and controlled by veterans with service-connected disabilities will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.
(2)
(A) Notwithstanding paragraph (1) and except as provided by subparagraph (B) of this paragraph, with respect to the procurement of a covered product or service, a contracting officer of the Department shall procure such product or service from a source designated under chapter 85 of title 41, and in accordance with the regulations prescribed under such chapter.
(B)
(i) Subject to clause (ii), subparagraph (A) shall not apply in the case of a covered product or service for which a contract was—(I) awarded under paragraph (1) after December 22, 2006; and(II) in effect on the day before the date of the enactment of the Department of Veterans Affairs Contracting Preference Consistency Act of 2020.
(ii) Clause (i) shall cease to apply to a covered product or service described in such clause upon a determination of the Secretary that when the current contract for the covered product or service is terminated or expires there is no reasonable expectation that—(I) two or more small business concerns owned and controlled by veterans will submit offers as described in paragraph (1); and(II) the award can be made at a fair and reasonable price that offers best value to the United States.
(C) In this paragraph, the term “covered product or service” means—
(i) a product or service that—(I) is included on the procurement list under section 8503(a) of title 41; and(II) was included on such procurement list on or before December 22, 2006; or
(ii) a product or service that—(I) is a replacement for a product or service described under clause (i);(II) is essentially the same and meeting the same requirement as the product or service being replaced; and(III) a contracting officer determines meets the quality standards and delivery schedule of the Department.
(e)Eligibility of Small Business Concerns.—A small business concern may be awarded a contract under this section only if 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 Administrator under section 36 of the Small Business Act.
[(f) Transferred. Pub. L. 116–283, div. A, title VIII, § 862(b)(2), Jan. 1, 2021, 134 Stat. 3778.]
(g)Enforcement Penalties for Misrepresentation.—
(1) Any business concern that is determined by the Secretary to have willfully and intentionally misrepresented the status of that concern as a small business concern owned and controlled by veterans or as a small business concern owned and controlled by service-disabled veterans for purposes of this subsection shall be debarred from contracting with the Department for a period of not less than five years.
(2) In the case of a debarment under paragraph (1), the Secretary shall commence debarment action against the business concern by not later than 30 days after determining that the concern willfully and intentionally misrepresented the status of the concern as described in paragraph (1) and shall complete debarment actions against such concern by not later than 90 days after such determination.
(3) The debarment of a business concern under paragraph (1) includes the debarment of all principals in the business concern for a period of not less than five years.
(h)Priority for Contracting Preferences.—Preferences for awarding contracts to small business concerns shall be applied in the following order of priority:
(1) Contracts awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans with service-connected disabilities.
(2) Contracts awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans that are not covered by paragraph (1).
(3) Contracts awarded pursuant to—
(A) section 8(a) of the Small Business Act (15 U.S.C. 637(a)); or
(B) section 31 of such Act (15 U.S.C. 657a).
(4) Contracts awarded pursuant to any other small business contracting preference.
(i)Applicability of Requirements to Contracts.—
(1) If after December 31, 2008, the Secretary enters into a contract, memorandum of understanding, agreement, or other arrangement with any governmental entity to acquire goods or services, the Secretary shall include in such contract, memorandum, agreement, or other arrangement a requirement that the entity will comply, to the maximum extent feasible, with the provisions of this section in acquiring such goods or services.
(2) Nothing in this subsection shall be construed to supersede or otherwise affect the authorities provided under the Small Business Act (15 U.S.C. 631 et seq.).
(j)Annual Reports.—Not later than December 31 each year, the Secretary shall submit to Congress a report on small business contracting during the fiscal year ending in such year. Each report shall include, for the fiscal year covered by such report, the following:
(1) The percentage of the total amount of all contracts awarded by the Department during that fiscal year that were awarded to small business concerns owned and controlled by veterans.
(2) The percentage of the total amount of all such contracts awarded to small business concerns owned and controlled by veterans with service-connected disabilities.
(3) The percentage of the total amount of all contracts awarded by each Administration of the Department during that fiscal year that were awarded to small business concerns owned and controlled by veterans.
(4) The percentage of the total amount of all contracts awarded by each such Administration during that fiscal year that were awarded to small business concerns owned and controlled by veterans with service-connected disabilities.
(k)Annual Transfer for Certification Costs.—For each fiscal year, the Secretary of Veterans Affairs shall reimburse the Administrator in an amount necessary to cover any cost incurred by the Administrator for certifying small business concerns owned and controlled by veterans that do not qualify as small business concerns owned and controlled by service-disabled veterans for the Secretary for purposes of this section and section 8128 of this title. The Administrator is authorized to accept such reimbursement. The amount of any such reimbursement shall be determined jointly by the Secretary and the Administrator and shall be provided from fees collected by the Secretary under multiple-award schedule contracts. Any disagreement about the amount shall be resolved by the Director of the Office of Management and Budget.
(l)Limitations on Subcontracting.—
(1)
(A) The requirements applicable to a covered small business concern under section 46 of the Small Business Act (15 U.S.C. 657s) shall apply with respect to a small business concern owned and controlled by veterans that is awarded a contract under this section.
(B) For purposes of applying the requirements of section 46 of the Small Business Act (15 U.S.C. 657s) pursuant to subparagraph (A), the term “similarly situated entity” used in such section 46 includes a subcontractor for a small business concern owned and controlled by veterans described in such subparagraph (A).
(2) The Secretary may award a contract under this section only after the Secretary obtains from the offeror a certification that the offeror will comply with the requirements described in paragraph (1)(A) if awarded the contract. Such certification shall—
(A) specify the exact performance requirements applicable under such paragraph; and
(B) explicitly acknowledge that the certification is subject to section 1001 of title 18.
(3)
(A) The Director of Small and Disadvantaged Business Utilization for the Department, established pursuant to section 15(k) of the Small Business Act (15 U.S.C. 644(k)), and the Chief Acquisition Officer of the Department, established pursuant to section 1702 of title 41, shall jointly implement a process using the systems described in section 16(g)(2) of the Small Business Act (15 U.S.C. 645(g)(2)), or any other relevant systems available, to monitor compliance with this subsection.
(B) The Director of Small and Disadvantaged Business Utilization and the Chief Acquisition Officer shall jointly refer any violations or suspected violations of this subsection to the Inspector General of the Department.
(C) If the Secretary determines, in consultation with the Inspector General of the Department, that a small business concern that is awarded a contract under this section did not act in good faith with respect to the requirements described in paragraph (1)(A), the small business concern shall be subject to any or all of the following consequences—
(i) referral to the Debarment and Suspension Committee of the Department;
(ii) a fine under section 16(g)(1) of the Small Business Act (
(iii) prosecution for violating section 1001 of title 18.
(D) Not later than November 30 for each of fiscal years 2021 through 2025, the Inspector General shall submit to the Committees on Veterans’ Affairs of the Senate and House of Representatives a report for the fiscal year preceding the fiscal year during which the report is submitted that includes, for the fiscal year covered by the report—
(i) the number of referred violations and suspected violations received under subparagraph (B); and
(ii) the disposition of such referred violations, including the number of small business concerns suspended or debarred from Federal contracting or referred to the Attorney General for prosecution.
(m)Definitions.—In this section:
(1) The term “Administrator” means the Administrator of the Small Business Administration.
(2) The term “small business concern” has the meaning given that term under section 3 of the Small Business Act (15 U.S.C. 632).
(3) The term “small business concern owned and controlled by veterans” has the meaning given that term under section 3(q)(3) of the Small Business Act (15 U.S.C. 632(q)(3)).
(4) The term “small business concern owned and controlled by veterans with service-connected disabilities” has the meaning given the term “small business concern owned and controlled by service-disabled veterans” under section 3(q)(2) of the Small Business Act (15 U.S.C. 632(q)(2)).
(Added Pub. L. 109–461, title V, § 502(a)(1), Dec. 22, 2006, 120 Stat. 3431; amended Pub. L. 110–389, title VIII, § 806, Oct. 10, 2008, 122 Stat. 4189; Pub. L. 111–275, title I, § 104(b)(1), Oct. 13, 2010, 124 Stat. 2867; Pub. L. 111–350, § 5(j)(7), Jan. 4, 2011, 124 Stat. 3850; Pub. L. 112—154, title VII, § 706, Aug. 6, 2012, 126 Stat. 1206; Pub. L. 114–315, title V, § 501(a), Dec. 16, 2016, 130 Stat. 1566; Pub. L. 114–328, div. A, title XVIII, § 1832(b), (d), (f)(1), Dec. 23, 2016, 130 Stat. 2659, 2660; Pub. L. 116–155, § 2(a), (b), Aug. 8, 2020, 134 Stat. 698, 699; Pub. L. 116–183, § 2(a), Oct. 30, 2020, 134 Stat. 895; Pub. L. 116–283, div. A, title VIII, § 862(b)(1), (2), Jan. 1, 2021, 134 Stat. 3776, 3778; Pub. L. 116–315, title VII, § 7009, Jan. 5, 2021, 134 Stat. 5061.)
§ 8128. Small business concerns owned and controlled by veterans: contracting priority
(a)Contracting Priority.—In procuring goods and services pursuant to a contracting preference under this title or any other provision of law, the Secretary shall give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference.
(b)Definition.—For purposes of this section, the term “small business concern owned and controlled by veterans” means a small business concern that is included in the small business database maintained by the Administrator of the Small Business Administration under section 36 of the Small Business Act.
(Added Pub. L. 109–461, title V, § 503(a)(1), Dec. 22, 2006, 120 Stat. 3435; amended Pub. L. 116–283, div. A, title VIII, § 862(b)(3)(B), Jan. 1, 2021, 134 Stat. 3779.)
§ 8129. Preference for offerors employing veterans
(a)Preference.—
(1) In awarding a contract for the procurement of goods or services, the Secretary may give a preference to offerors that employ veterans on a full-time basis.
(2) The Secretary shall determine such preference based on the percentage of the full-time employees of the offeror who are veterans.
(b)Enforcement Penalties for Misrepresentation.—
(1) Any offeror that is determined by the Secretary to have willfully and intentionally misrepresented the veteran status of the employees of the offeror for purposes of subsection (a) may be debarred from contracting with the Department for a period of not less than five years.
(2) If the Secretary carries out a debarment under paragraph (1), the Secretary shall—
(A) commence debarment action against the offeror by not later than 30 days after determining that the offeror willfully and intentionally misrepresented the veteran status of the employees of the offeror as described in paragraph (1); and
(B) complete debarment actions against such offeror by not later than 90 days after such determination.
(3) The debarment of an offeror under paragraph (1) includes the debarment of all principals in the offeror for a period of not less than five years.
(Added Pub. L. 116–315, title VII, § 7003(a), Jan. 5, 2021, 134 Stat. 5058.)