[USC02] 38 USC PART VI, CHAPTER 81, SUBCHAPTER II: PROCUREMENT AND SUPPLY
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38 USC PART VI, CHAPTER 81, SUBCHAPTER II: PROCUREMENT AND SUPPLY
From Title 38—VETERANS' BENEFITSPART VI—ACQUISITION AND DISPOSITION OF PROPERTYCHAPTER 81—ACQUISITION AND OPERATION OF HOSPITAL AND DOMICILIARY FACILITIES; PROCUREMENT AND SUPPLY; ENHANCED-USE LEASES OF REAL PROPERTY

SUBCHAPTER II—PROCUREMENT AND SUPPLY

§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.)

Amendments

2003Pub. L. 108–170 redesignated last sentence of subsec. (a) as subsec. (c), added subsec. (b), and redesignated former subsecs. (b) and (c) as (d) and (e), respectively.

1991Pub. L. 102–40 renumbered section 5021 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in par. (2) and in last sentence.

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration" in introductory provisions.

Subsec. (c). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in two places.

1980—Subsec. (a). Pub. L. 96–330 substituted "actual direct cost (which may be based on the cost of recent significant purchases of the equipment or supply item involved)" for "actual direct" in par. (2), and, in provisions following par. (3), substituted "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 Administrator 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" for "At the end of each fiscal year, any net income of the fund, after making provision for prior losses, shall be covered into the Treasury of the United States as miscellaneous receipts".

1976—Subsec. (c). Pub. L. 94–581 substituted "the Administrator" for "him".

1961—Subsec. (a). Pub. L. 87–314 included among the purposes for which the supply fund was established, the repair and reclamation of used, spent, or excess personal property, and authorized the crediting of the fund with property returned to the supply system when no longer required by activities to which it had been furnished.

Effective Date of 2003 Amendment

Pub. L. 108–170, title IV, §403(b), Dec. 6, 2003, 117 Stat. 2062, provided that: "The amendments made by subsection (a) [amending this section] shall apply only with respect to funds appropriated for a fiscal year after fiscal year 2003."

Effective Date of 1980 Amendment

Pub. L. 96–330, title IV, §402(b), Aug. 26, 1980, 94 Stat. 1051, provided that: "The amendments made by subsection (a) [amending this section] shall take effect as of October 1, 1979."

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–581 effective Oct. 21, 1976, see section 211 of Pub. L. 94–581, set out as a note under section 111 of this title.

§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 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.)

References in Text

Section 302(c) of the Federal Property and Administrative Services Act of 1949, referred to in subsec. (c), was section 302(c) of act June 30, 1949, ch. 288, 63 Stat. 393, which was classified to section 252(c) of former Title 41, Public Contracts, and was struck out by Pub. L. 98–369, div. B, title VII, §2714(a)(1)(B), July 18, 1984, 98 Stat. 1184.

Amendments

2011—Subsec. (a)(1). Pub. L. 111–350, §5(j)(6)(A), substituted "section 6101(b) to (d) of title 41" for "section 3709 of the Revised Statutes (41 U.S.C. 5)".

Subsec. (c). Pub. L. 111–350, §5(j)(6)(B), struck out "(41 U.S.C. 252(c))" after "1949, as amended" and substituted "sections 3901 and 3905 of title 41" for "section 304 of that Act (41 U.S.C. 254)".

2004—Subsec. (a)(2). Pub. L. 108–422, §411(e)(1), amended par. (2) generally. Prior to amendment, par. (2) read as follows:

"(2)(A) Except as provided in paragraph (3) of this subsection, the Secretary may not during any fiscal year transfer to another Federal agency or to a State (or any political subdivision of a State) any interest in real property described in subparagraph (B) of this paragraph unless (i) the transfer (as proposed) was described in the budget for that fiscal year submitted to Congress pursuant to section 1105 of title 31, and (ii) the Department receives compensation equal to the fair market value of the property.

"(B) An interest in real property described in this subparagraph is an interest in real property that is owned by the United States and administered by the Secretary and that has an estimated value in excess of $50,000.

"(C) Amounts realized from the transfer of any interest in real property described in subparagraph (B) of this paragraph shall be deposited in the nursing home revolving fund established under section 8116 of this title."

Subsec. (d). Pub. L. 108–422, §411(e)(2), designated existing provisions as par. (1) and added par. (2).

2002—Subsec. (a)(1). Pub. L. 107–217 substituted "section 1302 of title 40" for "section 321 of the Act of June 30, 1932 (40 U.S.C. 303b)".

2001—Subsec. (d). Pub. L. 107–95 inserted before period at end "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".

1991Pub. L. 102–40, §402(b)(1), renumbered section 5022 of this title as this section.

Subsec. (a). Pub. L. 102–83, §5(c)(1), substituted "1741" for "641" in par. (3)(B)(i).

Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" and "Secretary's" for "Administrator's" wherever appearing.

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration" in pars. (2)(A) and (3)(A).

Pub. L. 102–83, §4(a)(1), substituted "administered by the Secretary" for "administered by the Veterans' Administration" in pars. (2)(B) and (3)(E).

Pub. L. 102–54 amended subsec. (a)(3)(A) as in effect immediately before the enactment of Pub. L. 102–40 by substituting "State" for "State home" before "nursing-home" and "this paragraph" for "the paragraph" before "which".

Pub. L. 102–40, §402(d)(1), substituted "8116" for "5016" in par. (2)(C).

Subsecs. (b), (c). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" wherever appearing.

Subsec. (d). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" wherever appearing.

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

1988—Subsec. (a)(2). Pub. L. 100–687, §1505(1), substituted "Except as provided in paragraph (3) of this subsection, the" for "The" at beginning.

Pub. L. 100–322 amended par. (2) generally. Prior to amendment, par. (2) read as follows:

"(A) Before entering into a transaction described in subparagraph (B) of this paragraph with respect to any real property owned by the United States and administered by the Veterans' Administration which has an estimated value in excess of $50,000, the Administrator shall submit a report of the facts concerning the proposed transaction to the Committees on Veterans' Affairs of the Senate and House of Representatives, and such transaction may not then be entered into until after the expiration of 180 days from the date upon which the report is submitted.

"(B) Subparagraph (A) of this paragraph applies to (i) any transfer of an interest in real property to another Federal agency or to a State (or any political subdivision of a State), and (ii) any report to a Federal disposal agency of excess real property.

"(C) A statement in an instrument of conveyance, including a lease, that the requirements of this paragraph have been met, or that the conveyance is not subject to this paragraph, is conclusive for the purposes of all matters pertaining to the ownership of any right or interest in the property conveyed by such instrument."

Subsec. (a)(3). Pub. L. 100–687, §1505(2), added par. (3).

1983—Subsec. (a)(2)(A). Pub. L. 98–160, §401(1), substituted "180 days" for "30 days".

Subsec. (d). Pub. L. 98–160, §401(2), added subsec. (d).

1982—Subsec. (a). Pub. L. 97–295, §4(91)(A), substituted "of" for "entitled 'An Act making appropriations for the legislative branch of the Government for the fiscal year ending June 30, 1933, and for other purposes,' approved" after "section 321 of the Act".

Subsec. (c). Pub. L. 97–295, §4(91)(B), inserted "(41 U.S.C. 254)" after "section 304 of that Act".

1980—Subsec. (a). Pub. L. 96–330 designated existing provisions as par. (1) and added par. (2).

1979—Subsec. (b). Pub. L. 96–22 substituted "necessary space for administrative purposes by lease" for "necessary space for administrative, clinical, medical, and outpatient treatment purposes by lease".

1976—Subsec. (a). Pub. L. 94–581, §210(e)(7)(A), substituted "under the Administrator's control" for "under his control" and "notice of the Administrator's intention" for "notice of his intention".

Subsec. (b). Pub. L. 94–581, §210(e)(7)(B), substituted "the Administrator" for "he".

Subsec. (c). Pub. L. 94–581, §210(e)(7)(C), substituted "the Administrator" for "him".

1973—Subsec. (a). Pub. L. 93–82 inserted provisions that leases under this subsection may be made without regard to section 5 of title 41, that notwithstanding section 303b of title 40 or any other provision of law, such leases 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 and that prior to the execution of the leases, the Administrator shall give notice of his intention in the local newspaper.

1966Pub. L. 89–785 inserted "and to negotiate for common services" in section catchline and added subsec. (c).

Effective Date of 1979 Amendment

Amendment by Pub. L. 96–22 effective Oct. 1, 1979, except that the amendment shall not apply with respect to the acquisition, construction, or alteration of any medical facilities if the acquisition, construction, or alteration (not including exchange) was approved by the President before Oct. 1, 1979, see section 302 of Pub. L. 96–22, set out as an Effective Date note under section 8101 of this title.

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–581 effective Oct. 21, 1976, see section 211 of Pub. L. 94–581, set out as a note under section 111 of this title.

Effective Date of 1973 Amendment

Amendment by Pub. L. 93–82 effective Sept. 1, 1973, see section 501 of Pub. L. 93–82, set out as a note under section 1701 of this title.

VA Asset and Infrastructure Review

Pub. L. 115–182, title II, subtitle A, June 6, 2018, 132 Stat. 1443, provided that:

"SEC. 201. SHORT TITLE.

"This subtitle may be cited as the 'VA Asset and Infrastructure Review Act of 2018'.

"SEC. 202. THE COMMISSION.

"(a) Establishment.—There is established an independent commission to be known as the 'Asset and Infrastructure Review Commission' (in this subtitle referred to as the 'Commission').

"(b) Duties.—The Commission shall carry out the duties specified for it in this subtitle.

"(c) Appointment.—

"(1) In general.—

"(A) Appointment.—The Commission shall be composed of nine members appointed by the President, by and with the advice and consent of the Senate.

"(B) Transmission of nominations.—The President shall transmit to the Senate the nominations for appointment to the Commission not later than May 31, 2021.

"(2) Consultation in selection process.—In selecting individuals for nominations for appointments to the Commission, the President shall consult with—

"(A) the Speaker of the House of Representatives;

"(B) the majority leader of the Senate;

"(C) the minority leader of the House of Representatives;

"(D) the minority leader of the Senate; and

"(E) congressionally chartered, membership based veterans service organizations concerning the appointment of three members.

"(3) Designation of chair.—At the time the President nominates individuals for appointment to the Commission under paragraph (1)(B), the President shall designate one such individual who shall serve as Chair of the Commission and one such individual who shall serve as Vice Chair of the Commission.

"(4) Member representation.—In nominating individuals under this subsection, the President shall ensure that—

"(A) veterans, reflecting current demographics of veterans enrolled in the system of annual patient enrollment under section 1705 of title 38, United States Code, are adequately represented in the membership of the Commission;

"(B) at least one member of the Commission has experience working for a private integrated health care system that has annual gross revenues of more than $50,000,000;

"(C) at least one member has experience as a senior manager for an entity specified in clause (ii), (iii), or (iv) of section 101(a)(1)(B) of the Veterans Access, Choice, and Accountability Act of 2014 (Public Law 113–146; 38 U.S.C. 1701 note);

"(D) at least one member—

"(i) has experience with capital asset management for the Federal Government; and

"(ii) is familiar with trades related to building and real property, including construction, engineering, architecture, leasing, and strategic partnerships; and

"(E) at least three members represent congressionally chartered, membership-based, veterans service organizations.

"(d) Meetings.—

"(1) In general.—The Commission shall meet only during calendar years 2022 and 2023.

"(2) Public nature of meetings and proceedings.—

"(A) Public meetings.—Each meeting of the Commission shall be open to the public.

"(B) Open participation.—All the proceedings, information, and deliberations of the Commission shall be available for review by the public.

"(e) Vacancies.—A vacancy in the Commission shall be filled in the same manner as the original appointment, but the individual appointed to fill the vacancy shall serve only for the unexpired portion of the term for which the individual's predecessor was appointed.

"(f) Pay.—

"(1) In general.—Members of the Commission shall serve without pay.

"(2) Officers or employees of the united states.—Each member of the Commission who is an officer or employee of the United States shall serve without compensation in addition to that received for service as an officer or employee of the United States.

"(3) Travel expenses.—Members shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.

"(g) Director of Staff.—

"(1) Appointment.—The Commission shall appoint a Director who—

"(A) has not served as an employee of the Department of Veterans Affairs during the 1-year period preceding the date of such appointment; and

"(B) is not otherwise barred or prohibited from serving as Director under Federal ethics laws and regulations, by reason of post-employment conflict of interest.

"(2) Rate of pay.—The Director shall be paid at the rate of basic pay payable for level IV of the Executive Schedule under section 5315 of title 5, United States Code.

"(h) Staff.—

"(1) Pay of personnel.—Subject to paragraphs (2) and (3), the Director, with the approval of the Commission, may appoint and fix the pay of additional personnel.

"(2) Exemption from certain requirements.—The Director may make such appointments without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and any personnel so appointed may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of that title relating to classification and General Schedule pay rates, except that an individual so appointed may not receive pay in excess of the annual rate of basic pay payable for GS–15 of the General Schedule.

"(3) Detailees.—

"(A) Limitation on number.—Not more than two-thirds of the personnel employed by or detailed to the Commission may be on detail from the Department of Veterans Affairs.

"(B) Professional analysts.—Not more than half of the professional analysts of the Commission staff may be persons detailed from the Department of Veterans Affairs to the Commission.

"(C) Prohibition on detail of certain personnel.—A person may not be detailed from the Department of Veterans Affairs to the Commission if, within 6 months before the detail is to begin, that person participated personally and substantially in any matter within the Department of Veterans Affairs concerning the preparation of recommendations regarding facilities of the Veterans Health Administration.

"(4) Authority to request detailed personnel.—Subject to paragraph (3), the head of any Federal department or agency, upon the request of the Director, may detail any of the personnel of that department or agency to the Commission to assist the Commission in carrying out its duties under this subtitle.

"(5) Information from federal agencies.—The Commission may secure directly from any Federal agency such information the Commission considers necessary to carry out this subtitle. Upon request of the Chair, the head of such agency shall furnish such information to the Commission.

"(i) Other Authority.—

"(1) Temporary and intermittent services.—The Commission may procure by contract, to the extent funds are available, the temporary or intermittent services of experts or consultants pursuant to section 3109 of title 5, United States Code.

"(2) Leasing and acquisition of property.—To the extent funds are available, the Commission may lease real property and acquire personal property either of its own accord or in consultation with the General Services Administration.

"(j) Termination.—The Commission shall terminate on December 31, 2023.

"(k) Prohibition Against Restricting Communications.—

"(1) In general.—Except as provided in paragraph (2), no person may restrict an employee of the Department of Veterans Affairs in communicating with the Commission.

"(2) Unlawful communications.—Paragraph (1) does not apply to a communication that is unlawful.

"SEC. 203. PROCEDURE FOR MAKING RECOMMENDATIONS.

"(a) Selection Criteria.—

"(1) Publication.—The Secretary shall, not later than February 1, 2021, and after consulting with veterans service organizations, publish in the Federal Register and transmit to the Committees on Veterans' Affairs of the Senate and the House of Representatives the criteria proposed to be used by the Department of Veterans Affairs in assessing and making recommendations regarding the modernization or realignment of facilities of the Veterans Health Administration under this subtitle. Such criteria shall include the preferences of veterans regarding health care furnished by the Department.

"(2) Public comment.—The Secretary shall provide an opportunity for public comment on the proposed criteria under paragraph (1) for a period of at least 90 days and shall include notice of that opportunity in the publication required under such paragraph.

"(3) Publication of final criteria.—The Secretary shall, not later than May 31, 2021, publish in the Federal Register and transmit to the Committees on Veterans' Affairs of the Senate and the House of Representatives the final criteria to be used in making recommendations regarding the closure, modernization, or realignment of facilities of the Veterans Health Administration under this subtitle.

"(b) Recommendations of the Secretary.—

"(1) Publication in federal register.—The Secretary shall, not later than January 31, 2022, and after consulting with veterans service organizations, publish in the Federal Register and transmit to the Committees on Veterans' Affairs of the Senate and the House of Representatives and to the Commission a report detailing the recommendations regarding the modernization or realignment of facilities of the Veterans Health Administration on the basis of the final criteria referred to in subsection (a)(2) that are applicable.

"(2) Factors for consideration.—In making recommendations under this subsection, the Secretary shall consider each of the following factors:

"(A) The degree to which any health care delivery or other site for providing services to veterans reflect the metrics of the Department of Veterans Affairs regarding market area health system planning.

"(B) The provision of effective and efficient access to high-quality health care and services for veterans.

"(C) The extent to which the real property that no longer meets the needs of the Federal Government could be reconfigured, repurposed, consolidated, realigned, exchanged, outleased, replaced, sold, or disposed.

"(D) The need of the Veterans Health Administration to acquire infrastructure or facilities that will be used for the provision of health care and services to veterans.

"(E) The extent to which the operating and maintenance costs are reduced through consolidating, colocating, and reconfiguring space, and through realizing other operational efficiencies.

"(F) The extent and timing of potential costs and savings, including the number of years such costs or savings will be incurred, beginning with the date of completion of the proposed recommendation.

"(G) The extent to which the real property aligns with the mission of the Department of Veterans Affairs.

"(H) The extent to which any action would impact other missions of the Department (including education, research, or emergency preparedness).

"(I) Local stakeholder inputs and any factors identified through public field hearings.

"(J) The assessments under paragraph (3).

"(K) The extent to which the Veterans Health Administration has appropriately staffed the medical facility, including determinations whether there has been insufficient resource allocation or deliberate understaffing.

"(L) Any other such factors the Secretary determines appropriate.

"(3) Capacity and commercial market assessments.—

"(A) Assessments.—The Secretary shall assess the capacity of each Veterans Integrated Service Network and medical facility of the Department to furnish hospital care or medical services to veterans under chapter 17 of title 38, United States Code. Each such assessment shall—

"(i) identify gaps in furnishing such care or services at such Veterans Integrated Service Network or medical facility;

"(ii) identify how such gaps can be filled by—

     "(I) entering into contracts or agreements with network providers under this section or with entities under other provisions of law;

     "(II) making changes in the way such care and services are furnished at such Veterans Integrated Service Network or medical facility, including—

"(aa) extending hours of operation;

"(bb) adding personnel; or

"(cc) expanding space through the construction, leasing, or sharing of health care facilities; and

     "(III) the building or realignment of Department resources or personnel;

"(iii) forecast, based on future projections and historical trends, both the short- and long-term demand in furnishing care or services at such Veterans Integrated Service Network or medical facility and assess how such demand affects the needs to use such network providers;

"(iv) include a commercial health care market assessment of designated catchment areas in the United States conducted by a non-governmental entity; and

"(v) consider the unique ability of the Federal Government to retain a presence in an area otherwise devoid of commercial health care providers or from which such providers are at risk of leaving.

"(B) Consultation.—In carrying out the assessments under subparagraph (A), the Secretary shall consult with veterans service organizations and veterans served by each such Veterans Integrated Service Network and medical facility.

"(C) Submittal.—The Secretary shall submit such assessments to the Committees on Veterans' Affairs of the House of Representatives and the Senate with the recommendations of the Secretary under this subsection and make the assessments publicly available.

"(4) Summary of selection process.—The Secretary shall include, with the list of recommendations published and transmitted pursuant to paragraph (1), a summary of the selection process that resulted in the recommendation for each facility of the Veterans Health Administration, including a justification for each recommendation. The Secretary shall transmit the matters referred to in the preceding sentence not later than 7 days after the date of the transmittal to the Committees on Veterans' Affairs of the Senate and the House of Representatives and the Commission of the report referred to in paragraph (1).

"(5) Treatment of facilities.—In assessing facilities of the Veterans Health Administration, the Secretary shall consider all such facilities equally without regard to whether the facility has been previously considered or proposed for reuse, closure, modernization, or realignment by the Department of Veterans Affairs.

"(6) Availability of information to congress.—In addition to making all information used by the Secretary to prepare the recommendations under this subsection available to Congress (including any committee or Member of Congress), the Secretary shall also make such information available to the Commission and the Comptroller General of the United States.

"(7) Certification of accuracy.—

"(A) In general.—Each person referred to in subparagraph (B), when submitting information to the Secretary or the Commission concerning the modernization or realignment of a facility of the Veterans Health Administration, shall certify that such information is accurate and complete to the best of that person's knowledge and belief.

"(B) Covered persons.—Subparagraph (A) applies to the following persons:

"(i) Each Under Secretary of the Department of Veterans Affairs.

"(ii) Each director of a Veterans Integrated Service Network.

"(iii) Each director of a medical center of the Department of Veterans Affairs.

"(iv) Each director of a program office of the Department of Veterans Affairs.

"(v) Each person who is in a position the duties of which include personal and substantial involvement in the preparation and submission of information and recommendations concerning the modernization or realignment of facilities of the Veterans Health Administration.

"(c) Review and Recommendations by the Commission.—

"(1) Public hearings.—

"(A) In general.—After receiving the recommendations from the Secretary pursuant to subsection (b), the Commission shall conduct public hearings on the recommendations.

"(B) Locations.—The Commission shall conduct public hearings in regions affected by a recommendation of the Secretary to close a facility of the Veterans Health Administration. To the greatest extent practicable, the Commission shall conduct public hearings in regions affected by a recommendation of the Secretary to modernize or realign such a facility.

"(C) Required witnesses.—Witnesses at each public hearing shall include at a minimum—

"(i) a veteran—

     "(I) enrolled under section 1705 of title 38, United States Code; and

     "(II) identified by a local veterans service organization; and

"(ii) a local elected official.

"(2) Transmittal to president.—

"(A) In general.—The Commission shall, not later than January 31, 2023, transmit to the President a report containing the Commission's findings and conclusions based on a review and analysis of the recommendations made by the Secretary, together with the Commission's recommendations, for modernizations and realignments of facilities of the Veterans Health Administration.

"(B) Authority to make changes to recommendations.—Subject to subparagraph (C), in making its recommendations, the Commission may change any recommendation made by the Secretary if the Commission—

"(i) determines that the Secretary deviated substantially from the final criteria referred to in subsection (a)(2) in making such recommendation;

"(ii) determines that the change is consistent with the final criteria referred to in subsection (a)(2);

"(iii) publishes a notice of the proposed change in the Federal Register not less than 45 days before transmitting its recommendations to the President pursuant to subparagraph (A); and

"(iv) conducts public hearings on the proposed change.

"(3) Justification for changes.—The Commission shall explain and justify in its report submitted to the President pursuant to paragraph (2) any recommendation made by the Commission that is different from the recommendations made by the Secretary pursuant to subsection (b). The Commission shall transmit a copy of such report to the Committees on Veterans' Affairs of the Senate and the House of Representatives on the same date on which it transmits its recommendations to the President under paragraph (2).

"(4) Provision of information to congress.—After the Commission transmits its report to the President, the Commission shall promptly provide, upon request, to any Member of Congress, information used by the Commission in making its recommendations.

"(d) Review by the President.—

"(1) Report.—The President shall, not later than February 15, 2023, transmit to the Commission and to the Congress a report containing the President's approval or disapproval of the Commission's recommendations.

"(2) Presidential approval.—If the President approves all the recommendations of the Commission, the President shall transmit a copy of such recommendations to the Congress, together with a certification of such approval.

"(3) Presidential disapproval.—If the President disapproves the recommendations of the Commission, in whole or in part, the President shall transmit to the Commission and the Congress, not later than March 1, 2023, the reasons for that disapproval. The Commission, after consideration of the President's reasons for disapproval, shall then transmit to the President, not later than March 15, 2023, a report containing—

"(A) the Commission's findings and conclusions based on a review and analysis of those reasons for disapproval provided by the President; and

"(B) recommendations that the Commission determines are appropriate for modernizations and realignments of facilities of the Veterans Health Administration.

"(4) Transmittal of recommendations to congress.—If the President approves all recommendations of the Commission transmitted to the President under paragraph (3), the President shall transmit a copy of such recommendations to the Congress, together with a certification of such approval.

"(5) Failure to transmit.—If the President does not transmit to the Congress an approval and certification described in paragraph (2) or (4) by March 30, 2023, the process by which facilities of the Veterans Health Administration may be selected for modernization or realignment under this subtitle shall be terminated.

"SEC. 204. ACTIONS REGARDING INFRASTRUCTURE AND FACILITIES OF THE VETERANS HEALTH ADMINISTRATION.

"(a) In General.—Subject to subsection (b), the Secretary shall begin to implement the recommended modernizations and realignments in the report under section 203(d) not later than 3 years after the date on which the President transmits such report to Congress. In any fiscal year, such implementation includes—

"(1) the planning of modernizations and realignments of facilities of the Veterans Health Administration as recommended in such report; and

"(2) providing detailed information on the budget for such modernizations or realignments in documents submitted to Congress by the Secretary in support of the President's budget for that fiscal year.

"(b) Congressional Disapproval.—

"(1) In general.—The Secretary may not carry out any modernization or realignment recommended by the Commission in a report transmitted from the President pursuant to section 203(d) if a joint resolution is enacted, in accordance with the provisions of section 207, disapproving such recommendations of the Commission before the earlier of—

"(A) the end of the 45-day period beginning on the date on which the President transmits such report; or

"(B) the adjournment of Congress sine die for the session during which such report is transmitted.

"(2) Computation of period.—For purposes of paragraph (1) and subsections (a) and (c) of section 207, the days on which either House of Congress is not in session because of an adjournment of more than three days to a day certain shall be excluded in the computation of a period.

"SEC. 205. IMPLEMENTATION.

"(a) In General.—

"(1) Modernizing and realigning facilities.—In modernizing or realigning any facility of the Veterans Health Administration under this subtitle, the Secretary may—

"(A) take such actions as may be necessary to modernize or realign any such facility, including the alteration of such facilities, the acquisition of such land, the leasing or construction of such replacement facilities, the disposition of such land or facilities, the performance of such activities, and the conduct of such advance planning and design as may be required to transfer functions from a facility of the Veterans Health Administration to another such facility, and may use for such purpose funds in the Account or funds appropriated to the Department of Veterans Affairs for such purposes;

"(B) carry out activities for the purposes of environmental mitigation, abatement, or restoration at any such facility, and shall use for such purposes funds in the Account;

"(C) reimburse other Federal agencies for actions performed at the request of the Secretary with respect to any such closure or realignment, and may use for such purpose funds in the Account or funds appropriated to the Department of Veterans Affairs and available for such purpose; and

"(D) exercise the authority of the Secretary under subchapter V of chapter 81 of title 38, United States Code.

"(2) Environmental restoration; historic preservation.—In carrying out any closure or realignment under this subtitle, the Secretary, with regards to any property made excess to the needs of the Department of Veterans Affairs as a result of such closure or realignment, shall carry out, as soon as possible with funds available for such purpose, any of the following for which the Secretary is responsible:

"(A) Environmental mitigation.

"(B) Environmental abatement.

"(C) Environmental restoration.

"(D) Compliance with historic preservation requirements.

"(b) Management and Disposal of Property.—

"(1) Existing disposal authorities.—To transfer or dispose of surplus real property or infrastructure located at any facility of the Veterans Health Administration that is modernized or realigned under this title [see Tables for classification], the Secretary may exercise the authorities of the Secretary under subchapters I and II of chapter 81 of title 38, United States Code, or the authorities delegated to the Secretary by the Administrator of General Services under subchapter III of chapter 5 of title 40, United States Code.

"(2) Effects on local communities.—

"(A) Consultation with state and local government.—Before any action may be taken with respect to the disposal of any surplus real property or infrastructure located at any facility of the Veterans Health Administration to be closed or realigned under this subtitle, the Secretary of Veterans Affairs shall consult with the Governor of the State and the heads of the local governments concerned for the purpose of considering any plan for the use of such property by the local community concerned.

"(B) Treatment of roads.—If infrastructure or a facility of the Veterans Health Administration to be closed or realigned under this subtitle includes a road used for public access through, into, or around the facility, the Secretary—

"(i) shall consult with the Government of the State and the heads of the local governments concerned for the purpose of considering the continued availability of the road for public use after the recommended action is complete; and

"(ii) may exercise the authority of the Secretary under section 8108 of title 38, United States Code.

"(3) Leases; cercla.—

"(A) Lease authority.—

"(i) Transfer to redevelopment authority for lease.—The Secretary may transfer title to a facility of the Veterans Health Administration approved for closure or realignment under this subtitle (including property at a facility of the Veterans Health Administration approved for realignment which will be retained by the Department of Veterans Affairs or another Federal agency after realignment) to the redevelopment authority for the facility if the redevelopment authority agrees to lease, directly upon transfer, one or more portions of the property transferred under this subparagraph to the Secretary or to the head of another department or agency of the Federal Government.

"(ii) Term of lease.—A lease under clause (i) shall be for a term of not to exceed 50 years, but may provide for options for renewal or extension of the term by the department or agency concerned.

"(iii) Limitation.—A lease under clause (i) may not require rental payments by the United States.

"(iv) Treatment of remaindered lease terms.—A lease under clause (i) shall include a provision specifying that if the department or agency concerned ceases requiring the use of the leased property before the expiration of the term of the lease, the remainder of the lease term may be satisfied by the same or another department or agency of the Federal Government using the property for a use similar to the use under the lease. Exercise of the authority provided by this clause shall be made in consultation with the redevelopment authority concerned.

"(v) Facility services.—Notwithstanding clause (iii), if a lease under clause (i) involves a substantial portion of the facility, the department or agency concerned may obtain facility services for the leased property and common area maintenance from the redevelopment authority or the redevelopment authority's assignee as a provision of the lease. The facility services and common area maintenance shall be provided at a rate no higher than the rate charged to non-Federal tenants of the transferred property. Facility services and common area maintenance covered by the lease shall not include—

     "(I) municipal services that a State or local government is required by law to provide to all landowners in its jurisdiction without direct charge; or

     "(II) firefighting or security-guard functions.

"(B) Application of cercla.—The provisions of section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9620(h)) shall apply to any transfer of real property under this paragraph.

"(C) Additional terms and conditions.—The Secretary may require any additional terms and conditions in connection with a transfer under this paragraph as such Secretary considers appropriate to protect the interests of the United States.

"(4) Application of mckinney-vento homeless assistance act.—Nothing in this subtitle shall limit or otherwise affect the application of the provisions of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11301 et seq.) to facilities of the Veterans Health Administration closed under this subtitle.

"(c) Applicability of National Environmental Policy Act of 1969.—

"(1) In general.—The provisions of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall not apply to the actions of the President, the Commission, and, except as provided in paragraph (2), the Department of Veterans Affairs in carrying out this subtitle.

"(2) Department of veterans affairs.—

"(A) Covered activities.—The provisions of the National Environmental Policy Act of 1969 shall apply to actions of the Department of Veterans Affairs under this subtitle—

"(i) during the process of property disposal; and

"(ii) during the process of relocating functions from a facility of the Veterans Health Administration being closed or realigned to another facility after the receiving facility has been selected but before the functions are relocated.

"(B) Other activities.—In applying the provisions of the National Environmental Policy Act of 1969 to the processes referred to in subparagraph (A), the Secretary shall not have to consider—

"(i) the need for closing or realigning the facility of the Veterans Health Administration as recommended by the Commission;

"(ii) the need for transferring functions to any facility of the Veterans Health Administration which has been selected as the receiving facility; or

"(iii) facilities of the Veterans Health Administration alternative to those recommended or selected.

"(d) Waiver.—

"(1) Restrictions on use of funds.—The Secretary may close or realign facilities of the Veterans Health Administration under this subtitle without regard to any provision of law restricting the use of funds for closing or realigning facilities of the Veterans Health Administration included in any appropriation or authorization Act.

"(2) Restrictions on authorities.—The Secretary may close or realign facilities of the Veterans Health Administration under this subtitle without regard to the restrictions of section 8110 of title 38, United States Code.

"(e) Transfer Authority in Connection With Payment of Environmental Remediation Costs.—

"(1) In general.—

"(A) Transfer by deed.—Subject to paragraph (2) of this subsection and section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9620(h)), the Secretary may enter into an agreement to transfer by deed a facility of the Veterans Health Administration with any person who agrees to perform all environmental restoration, waste management, and environmental compliance activities that are required for the property or facilities under Federal and State laws, administrative decisions, agreements (including schedules and milestones), and concurrences.

"(B) Additional terms or conditions.—The Secretary may require any additional terms and conditions in connection with an agreement authorized by subparagraph (A) as the Secretary considers appropriate to protect the interests of the United States.

"(2) Limitation.—A transfer of a facility of the Veterans Health Administration may be made under paragraph (1) only if the Secretary certifies to Congress that—

"(A) the costs of all environmental restoration, waste management, and environmental compliance activities otherwise to be paid by the Secretary with respect to the facility of the Veterans Health Administration are equal to or greater than the fair market value of the property or facilities to be transferred, as determined by the Secretary; or

"(B) if such costs are lower than the fair market value of the facility of the Veterans Health Administration, the recipient of such transfer agrees to pay the difference between the fair market value and such costs.

"(3) Payment by the secretary for certain transfers.—In the case of a facility of the Veterans Health Administration covered by a certification under paragraph (2)(A), the Secretary may pay the recipient of such facility an amount equal to the lesser of—

"(A) the amount by which the costs incurred by the recipient of the facility of the Veterans Health Administration for all environmental restoration, waste, management, and environmental compliance activities with respect to such facility exceed the fair market value of such property as specified in such certification; or

"(B) the amount by which the costs (as determined by the Secretary) that would otherwise have been incurred by the Secretary for such restoration, management, and activities with respect to such facility of the Veterans Health Administration exceed the fair market value of property as so specified.

"(4) Disclosure.—As part of an agreement under paragraph (1), the Secretary shall disclose to the person to whom the facility of the Veterans Health Administration will be transferred any information of the Secretary regarding the environmental restoration, waste management, and environmental compliance activities described in paragraph (1) that relate to the facility of the Veterans Health Administration. The Secretary shall provide such information before entering into the agreement.

"(5) Applicability of certain environmental laws.—Nothing in this subsection shall be construed to modify, alter, or amend the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) or the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.).

"SEC. 206. DEPARTMENT OF VETERANS AFFAIRS ASSET AND INFRASTRUCTURE REVIEW ACCOUNT.

"(a) Establishment.—There is hereby established in the ledgers of the Treasury an account to be known as the 'Department of Veterans Affairs Asset and Infrastructure Review Account' which shall be administered by the Secretary as a single account.

"(b) Credits to Account.—There shall be credited to the Account the following:

"(1) Funds authorized for and appropriated to the Account.

"(2) Proceeds received from the lease, transfer, or disposal of any property at a facility of the Veterans Health Administration closed or realigned under this subtitle.

"(c) Use of Account.—The Secretary may use the funds in the Account only for the following purposes:

"(1) To carry out this subtitle.

"(2) To cover property management and disposal costs incurred at facilities of the Veterans Health Administration closed, modernized, or realigned under this subtitle.

"(3) To cover costs associated with supervision, inspection, overhead, engineering, and design of construction projects undertaken under this subtitle, and subsequent claims, if any, related to such activities.

"(4) Other purposes that the Secretary determines support the mission and operations of the Department of Veterans Affairs.

"(d) Consolidated Budget Justification Display for Account.—

"(1) Consolidated budget information required.—The Secretary shall establish a consolidated budget justification display in support of the Account that for each fiscal year—

"(A) details the amount and nature of credits to, and expenditures from, the Account during the preceding fiscal year;

"(B) separately details the environmental remediation costs associated with facility of the Veterans Health Administration for which a budget request is made;

"(C) specifies the transfers into the Account and the purposes for which these transferred funds will be further obligated, to include caretaker and environment remediation costs associated with each facility of the Veterans Health Administration; and

"(D) details any intra-budget activity transfers within the Account that exceeded $1,000,000 during the preceding fiscal year or that are proposed for the next fiscal year and will exceed $1,000,000.

"(2) Submission.—The Secretary shall include the information required by paragraph (1) in the materials that the Secretary submits to Congress in support of the budget for a fiscal year submitted by the President pursuant to section 1105 of title 31, United States Code.

"(e) Closure of Account; Treatment of Remaining Funds.—

"(1) Closure.—The Account shall be closed at the time and in the manner provided for appropriation accounts under section 1555 of title 31, United States Code, except that unobligated funds which remain in the Account upon closure shall be held by the Secretary of the Treasury until transferred to the Secretary of Veterans Affairs by law after the Committees on Veterans' Affairs of the Senate and the House of Representatives receive the final report transmitted under paragraph (2).

"(2) Final report.—No later than 60 days after the closure of the Account under paragraph (1), the Secretary shall transmit to the Committees on Veterans' Affairs of the Senate and the House of Representatives and the Committees on Appropriations of the House of Representatives and the Senate a report containing an accounting of—

"(A) all the funds credited to and expended from the Account or otherwise expended under this subtitle; and

"(B) any funds remaining in the Account.

"SEC. 207. CONGRESSIONAL CONSIDERATION OF COMMISSION REPORT.

"(a) Disapproval Resolution.—For purposes of this subtitle, the term 'joint resolution' means only a joint resolution which is introduced within the 5-day period beginning on the date on which the President transmits the report to the Congress under section 203(d), and—

"(1) which does not have a preamble;

"(2) the matter after the resolving clause of which is as follows: 'that Congress disapproves the recommendations of the VHA Asset and Infrastructure Review Commission as submitted by the President on ______', the blank space being filled with the appropriate date; and

"(3) the title of which is as follows: 'Joint resolution disapproving the recommendations of the VHA Asset and Infrastructure Review Commission.'.

"(b) Consideration in the House of Representatives.—

"(1) Reporting and discharge.—Any committee of the House of Representatives to which a joint resolution is referred shall report it to the House without amendment not later than 15 legislative days after the date of introduction thereof. If a committee fails to report the joint resolution within that period, the committee shall be discharged from further consideration of the joint resolution.

"(2) Proceeding to consideration.—It shall be in order at any time after the third legislative day after each committee authorized to consider a joint resolution has reported or has been discharged from consideration of a joint resolution, to move to proceed to consider the joint resolution in the House. All points of order against the motion are waived. Such a motion shall not be in order after the House has disposed of a motion to proceed on a joint resolution addressing a particular submission. The previous question shall be considered as ordered on the motion to its adoption without intervening motion. The motion shall not be debatable. A motion to reconsider the vote by which the motion is disposed of shall not be in order.

"(3) Consideration.—The joint resolution shall be considered as read. All points of order against the joint resolution and against its consideration are waived. The previous question shall be considered as ordered on the joint resolution to its passage without intervening motion except 2 hours of debate equally divided and controlled by the proponent and an opponent. A motion to reconsider the vote on passage of the joint resolution shall not be in order.

"(c) Consideration in the Senate.—

"(1) Referral.—A joint resolution introduced in the Senate shall be referred to the Committee on Veterans' Affairs.

"(2) Reporting and discharge.—Any committee of the Senate to which a joint resolution is referred shall report it to the Senate without amendment not later than 15 session days after the date of introduction of a joint resolution described in subsection (a). If a committee fails to report the joint resolution within that period, the committee shall be discharged from further consideration of the joint resolution and the joint resolution shall be placed on the calendar.

"(3) Floor consideration.—

"(A) In general.—Notwithstanding Rule XXII of the Standing Rules of the Senate, it is in order at any time after the third session day on which the Committee on Veterans' Affairs has reported or has been discharged from consideration of a joint resolution described in subsection (a) (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the joint resolution, and all points of order against the joint resolution (and against consideration of the joint resolution) are waived. The motion to proceed is not debatable. The motion is not subject to a motion to postpone. A motion to reconsider the vote by which the motion is agreed to or disagreed to shall not be in order. If a motion to proceed to the consideration of the resolution is agreed to, the joint resolution shall remain the unfinished business until disposed of.

"(B) Consideration.—Consideration of the joint resolution, and on all debatable motions and appeals in connection therewith, shall be limited to not more than 2 hours, which shall be divided equally between the majority and minority leaders or their designees. A motion further to limit debate is in order and not debatable. An amendment to, or a motion to postpone, or a motion to proceed to the consideration of other business, or a motion to recommit the joint resolution is not in order.

"(C) Vote on passage.—If the Senate has voted to proceed to a joint resolution, the vote on passage of the joint resolution shall occur immediately following the conclusion of consideration of the joint resolution, and a single quorum call at the conclusion of the debate if requested in accordance with the rules of the Senate.

"(D) Rulings of the chair on procedure.—Appeals from the decisions of the Chair relating to the application of the rules of the Senate, as the case may be, to the procedure relating to a joint resolution shall be decided without debate.

"(d) Amendment Not in Order.—A joint resolution of disapproval considered pursuant to this section shall not be subject to amendment in either the House of Representatives or the Senate.

"(e) Coordination With Action by Other House.—

"(1) In general.—If, before the passage by one House of the joint resolution of that House, that House receives the joint resolution from the other House, then the following procedures shall apply:

"(A) The joint resolution of the other House shall not be referred to a committee.

"(B) With respect to the joint resolution of the House receiving the joint resolution—

"(i) the procedure in that House shall be the same as if no joint resolution had been received from the other House; but

"(ii) the vote on passage shall be on the joint resolution of the other House.

"(2) Treatment of joint resolution of other house.—If the Senate fails to introduce or consider a joint resolution under this section, the joint resolution of the House shall be entitled to expedited floor procedures under this section.

"(3) Treatment of companion measures.—If, following passage of the joint resolution in the Senate, the Senate then receives the companion measure from the House of Representatives, the companion measure shall not be debatable.

"(f) Rules of the House of Representatives and Senate.—This section is enacted by Congress—

"(1) as an exercise of the rulemaking power of the Senate and House of Representatives, respectively, and as such it is deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of a joint resolution, and it supersedes other rules only to the extent that it is inconsistent with such rules; and

"(2) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

"SEC. 208. OTHER MATTERS.

"(a) Online Publication of Communications.—

"(1) In general.—Not later than 24 hours after the transmission or receipt of any communication under this subtitle that is transmitted or received by a party specified in paragraph (2), the Secretary of Veterans Affairs shall publish such communication online.

"(2) Parties specified.—The parties specified under this paragraph are the following:

"(A) The Secretary of Veterans Affairs.

"(B) The Commission.

"(C) The President.

"(b) Continuation of Existing Construction Projects and Planning.—During activities that the Commission, President, or Congress carry out under this subtitle, the Secretary of Veterans Affairs may not stop, solely because of such activities—

"(1) a construction or leasing project of the Veterans Health Administration;

"(2) long term planning regarding infrastructure and assets of the Veterans Health Administration; or

"(3) budgetary processes for the Veterans Health Administration.

"(c) Recommendations for Future Asset Reviews.—The Secretary of Veterans Affairs may, after consulting with veterans service organizations, include in budget submissions the Secretary submits after the termination of the Commission recommendations for future such commissions or other capital asset realignment and management processes.

"SEC. 209. DEFINITIONS.

"In this subtitle:

"(1) The term 'Account' means the Department of Veterans Affairs Asset and Infrastructure Review Account established by section 206(a).

"(2) The term 'Commission' means the Commission established by section 202.

"(3) The term 'date of approval', with respect to a modernization or realignment of a facility of the Veterans Health Administration, means the date on which the authority of Congress to disapprove a recommendation of modernization or realignment, as the case may be, of such facility under this subtitle expires.

"(4) The term 'facility of the Veterans Health Administration'—

"(A) means any land, building, structure, or infrastructure (including any medical center, nursing home, domiciliary facility, outpatient clinic, center that provides readjustment counseling, or leased facility) that is—

"(i) under the jurisdiction of the Department of Veterans Affairs;

"(ii) under the control of the Veterans Health Administration; and

"(iii) not under the control of the General Services Administration; or

"(B) with respect to a colocated facility of the Department of Veterans Affairs, includes any land, building, or structure—

"(i) under the jurisdiction of the Department of Veterans Affairs;

"(ii) under the control of another administration of the Department of Veterans Affairs; and

"(iii) not under the control of the General Services Administration.

"(5) The term 'infrastructure' means improvements to land other than buildings or structures.

"(6) The term 'modernization' includes—

"(A) any action, including closure, required to align the form and function of a facility of the Veterans Health Administration to the provision of modern day health care, including utilities and environmental control systems;

"(B) the construction, purchase, lease, or sharing of a facility of the Veterans Health Administration; and

"(C) realignments, disposals, exchanges, collaborations between the Department of Veterans Affairs and other Federal entities, and strategic collaborations between the Department and non-Federal entities, including tribal organizations.

"(7) The term 'realignment', with respect to a facility of the Veterans Health Administration, includes—

"(A) any action that changes the numbers of or relocates services, functions, and personnel positions;

"(B) disposals or exchanges between the Department of Veterans Affairs and other Federal entities, including the Department of Defense; and

"(C) strategic collaborations between the Department of Veterans Affairs and non-Federal entities, including tribal organizations.

"(8) The term 'redevelopment authority', in the case of a facility of the Veterans Health Administration closed or modernized under this subtitle, means any entity (including an entity established by a State or local government) recognized by the Secretary of Veterans Affairs as the entity responsible for developing the redevelopment plan with respect to the facility or for directing the implementation of such plan.

"(9) The term 'redevelopment plan'[,] in the case of a facility of the Veterans Health Administration to be closed or realigned under this subtitle, means a plan that—

"(A) is agreed to by the local redevelopment authority with respect to the facility; and

"(B) provides for the reuse or redevelopment of the real property and personal property of the facility that is available for such reuse and redevelopment as a result of the closure or realignment of the facility.

"(10) The term 'Secretary' means the Secretary of Veterans Affairs.

"(11) The term 'tribal organization' has the meaning given such term in section 3765 of title 38, United States Code."

Transfer of Real Property Deemed Described in Budget for Fiscal Year 1989

Pub. L. 100–322, title IV, §421(a)(2), May 20, 1988, 102 Stat. 553, provided that any proposed transfer of real property described in subsec. (a)(2)(B) of this section that was described in a report submitted to Committees on Veterans' Affairs of Senate and House of Representatives by Administrator not later than 30 days after May 20, 1988, was to be deemed for purposes of subsec. (a)(2)(A) of this section to have been described in the President's budget for fiscal year 1989.

1 See References in Text note below.

§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.)

Amendments

1991Pub. L. 102–40 renumbered section 5023 of this title as this section.

Pub. L. 102–83 substituted "Secretary" for "Administrator" in two places.

1976Pub. L. 94–581 substituted "the Administrator" for "he".

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–581 effective Oct. 21, 1976, see section 211 of Pub. L. 94–581, set out as a note under section 111 of this title.

§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.)

Amendments

1991Pub. L. 102–40 renumbered section 5024 of this title as this section.

Pub. L. 102–83 substituted "Secretary" for "Administrator" wherever appearing and "Secretary's" for "Administrator's".

1976Pub. L. 94–581 substituted "the Administrator" for "he" wherever appearing and "under the Administrator's supervision" for "under his supervision".

Effective Date of 1976 Amendment

Amendment by Pub. L. 94–581 effective Oct. 21, 1976, see section 211 of Pub. L. 94–581, set out as a note under section 111 of this title.

§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.)

Amendments

2014—Subsecs. (d), (e). Pub. L. 113–188 redesignated subsec. (e) as (d) and struck out former subsec. (d) which required annual reports from the directors of Department medical centers and from the Secretary.

2001—Subsec. (d)(1). Pub. L. 107–14, §8(a)(15)(A), struck out "(beginning in 1992)" after "each year".

Subsec. (d)(2). Pub. L. 107–14, §8(a)(15)(B), struck out "(beginning in 1993)" after "each year".

Subsec. (d)(3). Pub. L. 107–14, §8(a)(15)(C), struck out par. (3) which read as follows: "Not later than February 1 of each year from 1989 through 1992, the Secretary shall submit to the Committees on Veterans' Affairs of the Senate and the House of Representatives a report on the experience in carrying out this section during the preceding fiscal year. The first such report shall contain information showing the percentage (measured by cost) of the total of all health-care items procured by the Department during fiscal year 1988 that were procured through local contracts. The other reports under this paragraph shall contain information showing the percentage (measured by cost) of the total of all health-care items procured by the Department, and by each Department medical center, during the fiscal year covered by the report that were purchased through local contracts and, in the case of each medical center at which the percentage was greater than 20 percent, an explanation of the reasons why that occurred."

1992—Subsec. (b)(1)(B)(ii). Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director".

1991Pub. L. 102–40 renumbered section 5025 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Subsec. (b). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in two places in par. (3)(C).

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration" wherever appearing.

Subsec. (c). Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

Subsecs. (d), (e). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" wherever appearing.

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration" wherever appearing.

1988—Subsec. (d)(1). Pub. L. 100–687, §1507(b)(1), inserted "(beginning in 1992)" after "of each year".

Subsec. (d)(2). Pub. L. 100–687, §1507(b)(2), inserted "(beginning in 1993)" after "of each year".

Subsec. (d)(3). Pub. L. 100–687, §1507(b)(3), added par. (3).

Subsec. (e)(1). Pub. L. 100–687, §1507(c), substituted "65 or 66" for "65, 66, or 73" and inserted after first sentence "Effective December 1, 1992, such term also includes any item listed in, or (as determined by the Administrator) of the same nature as an item listed in, Federal Supply Classification (FSC) Group 73."

Effective Date

Pub. L. 100–322, title IV, §403(b), May 20, 1988, 102 Stat. 545, as amended by Pub. L. 100–687, div. B, title XV, §1507(a), Nov. 18, 1988, 102 Stat. 4136, provided that:

"(1) Subsections (a), (b)(1), and (b)(2) of section 5025 [now 8125] of title 38, United States Code (as added by subsection (a)), shall take effect one year after the date of the enactment of this Act [May 20, 1988].

"(2) Subsection (b)(3) of such section shall apply to health-care items procured for use by the Veterans' Administration [now Department of Veterans Affairs] after September 30, 1990."

Medical Surgical Prime Vendor Program

Pub. L. 115–407, title VII, §703, Dec. 31, 2018, 132 Stat. 5381, provided that:

"(a) Vendors.—In procuring certain medical, surgical, and dental supplies or laboratory supplies for medical centers of the Department of Veterans Affairs, the Secretary of Veterans Affairs shall carry out the Medical Surgical Prime Vendor program, or successor program, in a manner that—

"(1) requires the Secretary to award contracts to multiple regional prime vendors instead of a single nationwide prime vendor; and

"(2) prohibits a prime vendor from solely designing the formulary of such supplies.

"(b) Clinically Driven Sourcing.—

"(1) Expertise.—In carrying out the formulary of supplies under the Medical Surgical Prime Vendor program, or successor program, the Secretary shall ensure that each employee of the Department of Veterans Affairs who conducts formulary analyses or makes decisions with respect to including items on the formulary has medical expertise relevant to the items for which the employee conducts such analyses or makes such decisions.

"(2) Lists.—Not later than 30 days after the date of the enactment of this Act [Dec. 31, 2018], and every six months thereafter with respect to any updates, the Secretary shall submit to the Committees on Veterans' Affairs of the House of Representatives and the Senate a list of each employee described in paragraph (1) and the relevant medical expertise of the employee, listed by the categories of items in the formulary described in such paragraph."

Standardization of Medical and Pharmaceutical Items

Pub. L. 100–322, title IV, §402, May 20, 1988, 102 Stat. 543, as amended by Pub. L. 100–687, div. B, title XV, §1508, Nov. 18, 1988, 102 Stat. 4137, directed Administrator, not later than Oct. 1, 1989, to develop and fully implement an agency-wide plan for cost-effective standardization of health-care items procured by Veterans' Administration.

§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.)

References in Text

The Social Security Act, referred to in subsecs. (a)(4)(A), (e)(2), (g)(1), and (h)(2)(A), (B), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended, which is classified generally to chapter 7 (§301 et seq.) of Title 42, The Public Health and Welfare. Title XIX of the Act is classified generally to subchapter XIX (§1396 et seq.) of chapter 7 of Title 42. Section 1927 of the Act is classified to section 1396r–8 of Title 42. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

The Public Health Service Act, referred to in subsec. (a)(4)(C), is act July 1, 1944, ch. 373, 58 Stat. 682, as amended, which is classified generally to chapter 6A (§201 et seq.) of Title 42. For complete classification of this Act to the Code, see Short Title note set out under section 201 of Title 42 and Tables.

Enactment of this section, referred to in subsec. (g)(2), means enactment of Pub. L. 102–585, which enacted this section and was approved Nov. 4, 1992.

Amendments

1997—Subsec. (h)(2). Pub. L. 105–115 inserted "or" at end of subpar. (B), substituted a period for "; or" at end of subpar. (C), and struck out subpar. (D), which read as follows: "insulin certified under section 506 of the Federal Food, Drug, and Cosmetic Act."

1996—Subsec. (b)(4). Pub. L. 104–106 added par. (4).

1994—Subsec. (e)(1)(A). Pub. L. 103–446, §1201(e)(27)(A), (f)(6)(A), substituted "December 4, 1992" for "30 days after the date of the enactment of this section" and "one-year period" for "1-year period".

Subsec. (f)(2). Pub. L. 103–446, §1201(e)(27)(B), substituted a period for ", and" at end.

Subsec. (g)(1), (2). Pub. L. 103–446, §1201(f)(6)(B), substituted "November 4, 1992" for "the date of the enactment of this section".

1993—Subsec. (a)(2). Pub. L. 103–18, §1(a)(1), struck out "preceding such date" before "as the Secretary considers appropriate".

Subsec. (c). Pub. L. 103–18, §1(a)(2), in introductory provisions, struck out "for calendar quarters" after "subsection (a)(2),", and in par. (1), struck out "preceding the month during which the contract goes into effect" after "during such period" and substituted "multiplied by" for "increased by".

Subsec. (d)(1). Pub. L. 103–18, §1(a)(3), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "during any one-year period that follows the first year for which the contract is in effect, the price charged may not exceed the 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) between the last months of such one-year periods for which Consumer Price Index data is available; and".

Subsec. (i). Pub. L. 103–18, §1(a)(4), added subsec. (i).

Effective Date of 1996 Amendment

Pub. L. 104–106, div. A, title VII, §737(b), Feb. 10, 1996, 110 Stat. 383, provided that: "The amendment made by subsection (a) [amending this section] shall take effect as if included in the enactment of section 603 of the Veterans Health Care Act of 1992 (Public Law 102–585; 106 Stat. 4971)."

Effective Date of 1993 Amendment

Pub. L. 103–18, §1(b), Apr. 12, 1993, 107 Stat. 54, provided that: "The amendments made by subsection (a) [amending this section] shall take effect as if included in the enactment of section 603 of the Veterans Health Care Act of 1992 [Pub. L. 102–585]."

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

§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.—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.—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.—Except as provided 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.

(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 Secretary under subsection (f).

(f) Database of Veteran-Owned Businesses.—(1) Subject to paragraphs (2) through (6), the Secretary shall maintain a database of small business concerns owned and controlled by veterans, small business concerns owned and controlled by veterans with service-connected disabilities, and the veteran owners of such business concerns.

(2)(A) To be eligible for inclusion in the database, such a veteran shall submit to the Secretary such information as the Secretary may require with respect to the small business concern or the veteran. Application for inclusion in the database shall constitute permission under section 552a of title 5 (commonly referred to as the Privacy Act) for the Secretary to access such personal information maintained by the Secretary as may be necessary to verify the information contained in the application.

(B) If the Secretary receives an application for inclusion in the database from an individual whose status as a veteran cannot be verified because the Secretary does not maintain information with respect to the veteran status of the individual, the Secretary may not include the small business concern owned and controlled by the individual in the database maintained by the Secretary until the Secretary receives such information as may be necessary to verify that the individual is a veteran.

(3) Information maintained in the database shall be submitted on a voluntary basis by such veterans.

(4) No small business concern may be listed in the database until the Secretary has verified, using regulations issued by the Administrator of the Small Business Administration with respect to the status of the concern as a small business concern and the ownership and control of such concern, that—

(A) the small business concern is owned and controlled by veterans; and

(B) in the case of a small business concern for which the person who owns and controls the concern indicates that the person is a veteran with a service-connected disability, that the person is a veteran with a service-connected disability.


(5) The Secretary shall make the database available to all Federal departments and agencies and shall notify each such department and agency of the availability of the database.

(6) If the Secretary determines that the public dissemination of certain types of information maintained in the database is inappropriate, the Secretary shall take such steps as are necessary to maintain such types of information in a secure and confidential manner.

(7) The Secretary may not issue regulations related to the status of a concern as a small business concern and the ownership and control of such small business concern.

(8)(A) If a small business concern is not included in the database because the Secretary does not verify the status of the concern as a small business concern or the ownership or control of the concern, the concern may appeal the denial of verification to the Office of Hearings and Appeals of the Small Business Administration (as established under section 5(i) of the Small Business Act). The decision of the Office of Hearings and Appeals shall be considered a final agency action.

(B)(i) If an interested party challenges the inclusion in the database of a small business concern owned and controlled by veterans or a small business concern owned and controlled by veterans with service-connected disabilities based on the status of the concern as a small business concern or the ownership or control of the concern, the challenge shall be heard by the Office of Hearings and Appeals of the Small Business Administration as described in subparagraph (A). The decision of the Office of Hearings and Appeals shall be considered final agency action.

(ii) In this subparagraph, the term "interested party" means—

(I) the Secretary; or

(II) in the case of a small business concern that is awarded a contract, the contracting officer of the Department or another small business concern that submitted an offer for the contract that was awarded to the small business concern that is the subject of a challenge made under clause (i).


(C) For each fiscal year, the Secretary shall reimburse the Administrator of the Small Business Administration in an amount necessary to cover any cost incurred by the Office of Hearings and Appeals of the Small Business Administration for actions taken by the Office under this paragraph. 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.

(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) Definitions.—In this section:

(1) The term "small business concern" has the meaning given that term under section 3 of the Small Business Act (15 U.S.C. 632).

(2) 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)).

(3) 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.)

References in Text

The Small Business Act, referred to in subsecs. (f)(8)(A) and (j)(2), is Pub. L. 85–536, §2(1 et seq.), July 18, 1958, 72 Stat. 384, which is classified generally to chapter 14A (§631 et seq.) of Title 15, Commerce and Trade. Section 5(i) of the Act is classified to section 634(i) of Title 15. For complete classification of this Act to the Code, see Short Title note set out under section 631 of Title 15 and Tables.

Amendments

2016—Subsec. (b). Pub. L. 114–328, §1832(b)(2)(A), inserted "or a small business concern owned and controlled by veterans with service-connected disabilities" after "a small business concern owned and controlled by veterans".

Subsec. (c). Pub. L. 114–328, §1832(b)(2)(B), inserted "or a small business concern owned and controlled by veterans with service-connected disabilities" after "a small business concern owned and controlled by veterans" in introductory provisions.

Subsec. (d). Pub. L. 114–328, §1832(b)(2)(C), inserted "or small business concerns owned and controlled by veterans with service-connected disabilities" after "small business concerns owned and controlled by veterans" in two places.

Subsec. (f)(1). Pub. L. 114–328, §1832(b)(2)(D), inserted ", small business concerns owned and controlled by veterans with service-connected disabilities," after "small business concerns owned and controlled by veterans".

Subsec. (f)(4). Pub. L. 114–328, §1832(d)(1), substituted "verified, using regulations issued by the Administrator of the Small Business Administration with respect to the status of the concern as a small business concern and the ownership and control of such concern," for "verified" in introductory provisions.

Subsec. (f)(7). Pub. L. 114–328, §1832(d)(2), added par. (7).

Subsec. (f)(8). Pub. L. 114–328, §1832(f)(1), added par. (8).

Subsec. (h). Pub. L. 114–328, §1832(b)(1)(A), redesignated subsec. (i) as (h) and struck out former subsec. (h) which related to treatment of businesses after death of veteran-owner.

Subsec. (h)(2)(C). Pub. L. 114–315, §501(a)(2), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: "The date that is ten years after the date of the veteran's death."

Subsec. (h)(3). Pub. L. 114–315, §501(a)(1), substituted period at end for "rated as 100 percent disabling or who dies as a result of a service-connected disability."

Subsecs. (i), (j). Pub. L. 114–328, §1832(b)(1)(A), redesignated subsecs. (j) and (k) as (i) and (j), respectively. Former subsec. (i) redesignated (h).

Subsec. (k). Pub. L. 114–328, §1832(b)(1)(A), redesignated subsec. (l) as (k). Former subsec. (k) redesignated (j).

Subsec. (k)(2). Pub. L. 114–328, §1832(b)(1)(B)(i), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "The term 'small business concern owned and controlled by veterans' means a small business concern—

"(A)(i) not less than 51 percent of which is owned by one or more veterans or, in the case of a publicly owned business, not less than 51 percent of the stock of which is owned by one or more veterans; and

"(ii) the management and daily business operations of which are controlled by one or more veterans; or

"(B) not less than 51 percent of which is owned by one or more veterans with service-connected disabilities that are permanent and total who are unable to manage the daily business operations of such concern or, in the case of a publicly owned business, not less than 51 percent of the stock of which is owned by one or more such veterans."

Subsec. (k)(3). Pub. L. 114–328, §1832(b)(1)(B)(ii), added par. (3).

Subsec. (l). Pub. L. 114–328, §1832(b)(1)(A), redesignated subsec. (l) as (k).

2012—Subsec. (g). Pub. L. 112–154 designated existing provisions as par. (1), inserted "willfully and intentionally" before "misrepresented", substituted "a period of not less than five years" for "a reasonable period of time, as determined by the Secretary", and added pars. (2) and (3).

2011—Subsecs. (b), (c)(2). Pub. L. 111–350 substituted "section 134 of title 41" for "section 4 of the Office of Federal Procurement Policy Act (41 U.S.C. 403)".

2010—Subsec. (f)(2). Pub. L. 111–275, §104(b)(1)(A), designated existing provisions as subpar. (A), inserted at end of subpar. (A) "Application for inclusion in the database shall constitute permission under section 552a of title 5 (commonly referred to as the Privacy Act) for the Secretary to access such personal information maintained by the Secretary as may be necessary to verify the information contained in the application.", and added subpar. (B).

Subsec. (f)(4). Pub. L. 111–275, §104(b)(1)(B), added par. (4) and struck out former par. (4) which read as follows: "In maintaining the database, the Secretary shall carry out at least the following two verification functions:

"(A) Verification that each small business concern listed in the database is owned and controlled by veterans.

"(B) In the case of a veteran who indicates a service-connected disability, verification of the service-disabled status of such veteran."

2008—Subsecs. (j) to (l). Pub. L. 110–389 added subsec. (j) and redesignated former subsecs. (j) and (k) as (k) and (l), respectively.

Effective Date of 2016 Amendment

Amendment by section 1832(b), (d) of Pub. L. 114–328 effective on the date on which the Administrator of the Small Business Administration and the Secretary of Veterans Affairs jointly issue implementing regulations [regulations effective Oct. 1, 2018], see section 1832(e) of Pub. L. 114–328, set out as a note under section 632 of Title 15, Commerce and Trade.

Pub. L. 114–328, div. A, title XVIII, §1832(f)(2), Dec. 23, 2016, 130 Stat. 2661, provided that: "Paragraph (8) of subsection (f) of title 38, United States Code, as added by paragraph (1), shall apply with respect to a verification decision made by the Secretary of Veterans Affairs on or after the date of the enactment of this Act [Dec. 23, 2016]."

Pub. L. 114–315, title V, §501(b), Dec. 16, 2016, 130 Stat. 1566, provided that: "The amendments made by subsection (a) [amending this section] shall take effect on the date that is 180 days after the date of the enactment of this Act [Dec. 16, 2016] and shall apply with respect to contracts awarded on or after such date."

Effective Date

Pub. L. 109–461, title V, §502(d), Dec. 22, 2006, 120 Stat. 3435, provided that: "This section [enacting this section and provisions set out as a note below] and the amendments made by this section shall take effect on the date that is 180 days after the date of the enactment of this Act [Dec. 22, 2006]."

Transition Provisions

Pub. L. 111–275, title I, §104(b)(2), Oct. 13, 2010, 124 Stat. 2868, provided that: "In the case of a small business concern included in the database as of the date of the enactment of this Act [Oct. 13, 2010] for which, as of such date, the Secretary of Veterans Affairs has not verified the status of such concern in accordance with paragraph (4) of subsection (f) of section 8127 of title 38, United States Code, as amended by paragraph (1), not later than 60 days after the date of the enactment of this Act, the Secretary shall notify the person who owns and controls the concern that—

"(A) the Secretary is required to verify the status of the concern in accordance with such paragraph, as so amended;

"(B) verification of such status shall require that the person who owns and controls the concern apply for inclusion in the database in accordance with such subsection, as so amended;

"(C) application for inclusion in the database shall constitute permission under section 552a of title 5, United States Code (commonly referred to as the Privacy Act), for the Secretary to access such personal information maintained by the Secretary as may be necessary to verify the information contained in the application; and

"(D) the person who owns and controls the concern must submit to the Secretary all information required by the Secretary under this paragraph within 90 days of receiving the Secretary's notice of such requirement or the concern shall be removed from the database."

Pub. L. 109–461, title V, §502(b), Dec. 22, 2006, 120 Stat. 3435, provided that: "A small business concern that is listed in any small business database maintained by the Secretary of Veterans Affairs on the date of the enactment of this Act [Dec. 22, 2006] shall be presumed to be eligible for inclusion in the database under subsection (f) of section 8127 of title 38, United States Code, as added by subsection (a), during the period beginning on the effective date of that section [see Effective Date note above] and ending one year after such effective date. Such a small business concern may be removed from the database during that period if it is found not to be a small business concern owned and controlled by veterans (as defined in subsection (k) of such section)."

§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 Secretary under section 8127(f) of this title.

(Added Pub. L. 109–461, title V, §503(a)(1), Dec. 22, 2006, 120 Stat. 3435.)

Effective Date

Pub. L. 109–461, title V, §503(b), Dec. 22, 2006, 120 Stat. 3436, provided that: "This section [enacting this section] and the amendments made by this section shall take effect on the date that is 180 days after the date of the enactment of this Act [Dec. 22, 2006]."