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114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-364
======================================================================
CONSTRUCTION REFORM ACT OF 2015
_______
December 3, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Miller of Florida, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany H.R. 3106]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 3106) to authorize Department major medical
facility construction projects for fiscal year 2015, to amend
title 38, United States Code, to make certain improvements in
the administration of Department medical facility construction
projects, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 5
Background and Need for Legislation.............................. 6
Hearings......................................................... 9
Subcommittee Consideration....................................... 10
Committee Consideration.......................................... 10
Committee Votes.................................................. 11
Committee Oversight Findings..................................... 11
Statement of General Performance Goals and Objectives............ 11
New Budget Authority, Entitlement Authority, and Tax Expenditures 11
Earmarks and Tax and Tariff Benefits............................. 12
Committee Cost Estimate.......................................... 12
Congressional Budget Office Estimate............................. 12
Federal Mandates Statement....................................... 13
Advisory Committee Statement..................................... 13
Constitutional Authority Statement............................... 13
Applicability to Legislative Branch.............................. 13
Statement on Duplication of Federal Programs..................... 13
Disclosure of Directed Rulemaking................................ 14
Section-by-Section Analysis of the Legislation................... 14
Changes in Existing Law Made by the Bill as Reported............. 18
Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Construction Reform Act of 2015''.
SEC. 2. DEPARTMENT OF VETERANS AFFAIRS CONSTRUCTION REFORMS.
(a) Project Management.--Section 8103 of title 38, United States
Code, is amended by adding at the end the following new subsection:
``(e) In the case of any super construction project (as such term is
defined in section 8104(a)(4)(C)), the Secretary shall enter into an
agreement with an appropriate non-Department Federal entity to provide
full project management services for the super construction project,
including management over the project design, acquisition,
construction, and contract changes. Such agreement shall provide that
the Secretary shall reimburse such Federal entity for all costs
associated with the provision of project management services under the
agreement.''.
(b) Application of Industry Standards; Assistance.--Section 8103 of
title 38, United States Code, as amended by subsection (a), is further
amended by adding at the end the following new subsections:
``(f) To the maximum extent practicable, the Secretary shall use
industry standards, standard designs, and best practices in carrying
out the construction of medical facilities.
``(g)(1) The Secretary shall provide to a non-Department Federal
entity with which the Secretary has entered into an agreement under
subsection (e)--
``(A) design, planning, and construction assistance before
the entity issues a request for proposals for the design or
construction of the super construction project covered by the
agreement;
``(B) any documents or information needed for the entity to
carry out the responsibilities of the entity with respect to
the super construction project; and
``(C) upon the request of the entity, any other assistance
that the entity determines necessary to carry out such
responsibilities.
``(2) Any assistance provided under paragraph (1) shall be provided
to the non-Department Federal entity on a non-reimbursable basis.
``(h)(1) With respect to a proposed change to a contract entered into
by a non-Department Federal entity with which the Secretary has entered
into an agreement under subsection (e) that is estimated at a value of
less than $250,000, the non-Department Federal entity shall issue a
final decision regarding such change not later than 30 days after the
date on which the change is proposed.
``(2) With respect to a proposed change to such a contract that is
estimated at a value of $250,000 or more--
``(A) the Secretary may provide to the entity the
recommendations of the Secretary regarding such change;
``(B) during the 30-day period beginning on the date on which
the entity furnishes to the Secretary information regarding
such change, the Secretary may issue the final decision
regarding such change; and
``(C) if the Secretary does not issue a final decision under
subparagraph (B), during the 30-day period following the period
described in such paragraph, the entity shall issue a final
decision regarding such a change no later than 90 days from
when the entity furnished information regarding such a change
to the Secretary.
``(i) The Secretary shall ensure that each employee of the Department
with responsibilities relating to the construction or alteration of
medical facilities, including such construction or alteration carried
out pursuant to contracts or agreements, undergoes a program of ongoing
professional training and development. Such program shall be designed
to ensure that employees maintain adequate expertise relating to
industry standards and best practices for the acquisition of design and
construction services. The Secretary may provide the program under this
subsection through a contract or agreement with a non-Federal entity or
with a non-Department Federal entity.''.
(c) Limitation on Planning and Design for Super Construction
Projects.--
(1) In general.--Section 8104(a) of title 38, United States
Code, is amended--
(A) by redesignating paragraph (3) as paragraph (4);
(B) by inserting after paragraph (2) the following
new paragraph (3):
``(3) The Secretary may not obligate or expend funds for advance
planning or design for any super construction project, until the date
that is 60 days after the date on which the Secretary submits to the
Committee on Veterans' Affairs and the Committee on Appropriations of
the Senate and the Committee on Veterans' Affairs and the Committee on
Appropriations of the House of Representatives notice of such
obligation or expenditure.''; and
(C) in paragraph (4), as redesignated by paragraph
(1) of this subsection, by adding at the end the
following new subparagraph:
``(C) The term `super construction project' means a project
for the construction, alteration, or acquisition of a medical
facility involving a total expenditure of more than
$100,000,000, but such term does not include an acquisition by
exchange.''.
(2) Applicability.--The amendments made by paragraph (1)
shall take effect on the date of the enactment of this Act and
shall apply with respect to a construction project that is
initiated on or after that date.
(d) Congressional Approval of Certain Projects.--
(1) Projects that exceed specified amount.--Subsection (c) of
section 8104 of title 38, United States Code, is amended to
read as follows:
``(c)(1) The Secretary may not obligate funds for a major medical
facility project or a super construction project approved by a law
described in subsection (a)(2) in an amount that would cause the total
amount obligated for that project to exceed the amount specified in the
law for that project (or would add to total obligations exceeding such
specified amount) by more than 10 percent unless the Committee on
Veterans' Affairs and the Committee on Appropriations of the Senate and
the Committee on Veterans' Affairs and the Committee on Appropriations
of the House of Representatives each approve in writing the obligation
of those funds.
``(2) The Secretary shall--
``(A) enter into a contract with an appropriate non-
department Federal entity with the ability to conduct forensic
audits on medical facility projects for the conduct of an
external forensic audit of the expenditures relating to any
major medical facility or super construction project for which
the total expenditures exceed the amount specified in the law
for the project by more than 25 percent; and
``(B) enter into a contract with an appropriate non-
department Federal entity with the ability to conduct forensic
audits on medical facility projects for the conduct of an
external audit of the medical center construction project in
Aurora, Colorado.''.
(2) Use of extra amounts.--Subsection (d) of such section is
amended--
(A) in paragraph (2)(B), in the matter preceding
clause (i), by striking ``Whenever'' and inserting
``Before''; and
(B) by adding at the end the following new paragraph:
``(3) The Secretary may not obligate any funds described in paragraph
(1) or amounts described in paragraph (2) before the date that is 30
days after the notification submitted under paragraph (1) or paragraph
(2)(B), as the case may be, unless the Committee on Veterans' Affairs
and the Committee on Appropriations of the Senate and the Committee on
Veterans' Affairs and the Committee on Appropriations of the House of
Representatives each approve in writing the obligation of those funds
or amounts.''.
(3) Notification requirements.--
(A) Committees required.--Subsection (d)(1) of such
section is amended by striking ``each committee'' and
inserting ``the Committee on Veterans' Affairs and the
Committee on Appropriations of the Senate and the
Committee on Veterans' Affairs and the Committee on
Appropriations of the House of Representatives''.
(B) Use of amounts from bid savings.--Subsection
(d)(2)(B) of such section is amended by adding at the
end the following new clause:
``(iv) With respect to the major construction project that is
the source of the bid savings--
``(I) the amounts already obligated or available in
the project reserve for such project;
``(II) the percentage of such project that has been
completed; and
``(III) the amount of such bid savings that is
already obligated or otherwise being used for a purpose
other than such project.''.
(e) Quarterly Report on Super Construction Projects.--
(1) In general.--At the end of subchapter I of chapter 81 of
title 38, United States Code, insert the following new section:
``Sec. 8120. Quarterly report on super construction projects
``(a) Quarterly Reports Required.--Not later than 30 days after the
last day of each fiscal quarter the Secretary shall submit to the
Committees on Veterans' Affairs of the Senate and House of
Representatives on the super construction projects carried out by the
Secretary during such quarter. Each such report shall include, for each
such project--
``(1) the budgetary and scheduling status of the project, as
of the last day of the quarter covered by the report; and
``(2) the actual cost and schedule variances of the project,
as of such day, compared to the planned cost and schedules for
the project.
``(b) Super Construction Project Defined.--In this section, the term
`super construction project' has the meaning given such term in section
8103(a)(4)(C) of this title.''.
(2) Clerical amendment.--The table of sections at the
beginning of the chapter is amended by adding at the end of the
items relating to such subchapter the following new item:
``8120. Quarterly report on super construction projects.''.
(f) Accelerated Master Planning for Each Medical Facility of the
Department of Veterans Affairs.--
(1) Existing facilities.--Not later than December 31, 2016,
the Secretary of Veterans Affairs shall complete a master plan
described in paragraph (3) for each medical facility of the
Department of Veterans Affairs.
(2) New facilities.--For each medical facility of the
Department for which construction is completed after the date
of the enactment of this Act, the Secretary shall complete a
master plan described in paragraph (3) for the facility by not
later than the earlier of the following dates:
(A) The date on which activation is completed.
(B) The date of the formal dedication of the
facility.
(3) Master plan described.--A master plan described in this
paragraph is, with respect to a medical facility of the
Department, a plan to inform investment decisions and funding
requests over a 10-year period for construction projects at
such medical facility--
(A) to meet the health care needs of a changing
veteran population through a combination of health care
from the Department and other community resources; and
(B) to maximize the best use of the land and
structures comprising such medical facility.
SEC. 3. MODIFICATION OF AUTHORIZATION OF FISCAL YEAR 2008 MAJOR MEDICAL
FACILITY PROJECT AT DEPARTMENT MEDICAL CENTER IN
TAMPA, FLORIDA.
(a) Modification of Authorization.--In chapter 3 of the Supplemental
Appropriations Act, 2008 (Public Law 110-252; 122 Stat. 2326), in the
matter under the heading ``Department of Veterans Affairs-Departmental
Administration-Construction, Major Projects'', after ``Five Year
Capital Plan'' insert the following: ``and for constructing a new bed
tower at the Department of Veterans Affairs medical center in Tampa,
Florida, in lieu of providing bed tower upgrades at such medical
center''.
(b) Emergency Designation.--
(1) In general.--Subsection (a) is designated as an emergency
requirement pursuant to section 4(g) of the Statutory Pay-As-
You-Go Act of 2010 (2 U.S.C. 933(g)).
(2) Designation in senate.--In the Senate, subsection (a) is
designated as an emergency requirement pursuant to section
403(a) of S. Con. Res. 13 (111th Congress), the concurrent
resolution on the budget for fiscal year 2010.
SEC. 4. AUTHORIZATION OF FISCAL YEAR 2015 MAJOR MEDICAL FACILITY
PROJECTS.
(a) Authorization.--The Secretary of Veterans Affairs may carry out
the following major medical facility projects, with each project to be
carried out in an amount not to exceed the amount specified for that
project:
(1) Construction of a community living center, outpatient
clinic, renovated domiciliary, and renovation of existing
buildings in Canandaigua, New York, in an amount not to exceed
$158,980,000.
(2) Seismic corrections to the mental health and community
living center in Long Beach, California, in an amount not to
exceed $126,100,000.
(3) Seismic correction of 12 buildings in West Los Angeles,
California, in an amount not to exceed $70,500,000.
(4) Construction of a spinal cord injury building and seismic
corrections in San Diego, California, in an amount not to
exceed $205,840,000.
(b) Authorization of Appropriations.--There is authorized to be
appropriated to the Secretary of Veterans Affairs for fiscal year 2015
or the year in which funds are appropriated for the Construction, Major
Projects, account, a total of $561,420,000 for the projects authorized
in subsection (a).
(c) Limitation.--The projects authorized under this section may only
be carried out using--
(1) funds appropriated for fiscal year 2015 pursuant to the
authorization of appropriations in subsection (b);
(2) funds available for Construction, Major Projects for a
fiscal year before fiscal year 2015 that remain available for
obligation;
(3) funds available for Construction, Major Projects, for a
fiscal year after fiscal year 2015 that remain available for
obligation;
(4) funds appropriated for Construction, Major Projects, for
fiscal year 2015 for a category of activity not specific to a
project;
(5) funds appropriated for Construction, Major Projects, for
a fiscal year before 2015 for a category of activity not
specific to a project; and
(6) funds appropriated for Construction, Major Projects, for
a fiscal year after 2015 for a category of activity not
specific to a project.
SEC. 5. ASSISTANT INSPECTOR GENERAL FOR CONSTRUCTION.
(a) In General.--Chapter 3 of title 38, United States Code, is
amended by inserting after section 312 the following new section:
``Sec. 312A. Assistant Inspector General for Construction
``(a) In General.--There is in the Office of Inspector General an
Assistant Inspector General for Construction. The Assistant Inspector
General for Construction is responsible for conducting, supervising,
and coordinating audits, evaluations, and investigations of the
planning, design, contracting, execution, and construction of
facilities and infrastructure of the Department, including major and
minor construction projects and leases.
``(b) Qualifications.--Each individual appointed as Assistant
Inspector General for Construction shall be an individual who has
expertise in construction and facilities management.
``(c) Reports.--(1) Not later than 60 days after the appointment of
an individual as the Assistant Inspector General for Construction, and
every calendar quarter thereafter, the Assistant Inspector General for
Construction shall submit to the Committees on Veterans' Affairs of the
Senate and House of Representatives a report summarizing the activities
of the Assistant Inspector General for Construction during the 120-day
period ending on the date of such report.
``(2) In addition to the report required in paragraph (1), and the
requirements contained in section 5 of the Inspector General Act of
1978 (5 U.S.C. App.), the Assistant Inspector General for Construction
shall promptly provide to the Committees on Veterans' Affairs of the
Senate and House of Representatives the findings of any investigation
undertaken by the Assistant Inspector General for Construction, and
shall notify the Committees promptly if the Assistant Inspector General
for Construction identifies any serious or flagrant problem or
deficiency relating to the administration or operation of any
construction program of the Department, if, during the course of any
investigation, the Assistant Inspector General for Construction
determines that Congress should take immediate action.
``(3) Nothing in this subsection shall be construed to authorize the
public disclosure of information that is--
``(A) specifically prohibited from disclosure by any other
provision of law;
``(B) specifically required by Executive Order to be
protected from disclosure in the interest of national defense
or national security or in the conduct of foreign affairs; or
``(C) a part of an ongoing criminal investigation.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by inserting after the item relating to section
312 the following new item:
``312A. Assistant Inspector General for Construction.''.
Purpose and Summary
H.R. 3106, the Construction Reform Act of 2015, was
introduced by Representative Jeff Miller of Florida on July 16,
2015. H.R. 3106, as amended, would: (1) require the Department
of Veterans Affairs (VA) to enter into an agreement with a non-
Department federal entity to provide project management
services for super construction projects involving a total
expenditure of more than $100 million; (2) require the use of
industry standards, standard designs, and best practices for VA
medical facility construction projects; (3) prohibit VA from:
obligating/expending funds for advance planning or design for
any super construction project until 60 days after
congressional notification, obligating funds for a major
medical facility project/super construction project by more
than 10 percent of the amount approved by law without
congressional approval, and using bid savings amounts/funds for
other than their original purpose before 30 days after
notifying such committees unless each committee approves the
obligation; (4) require VA to report to the Committees on
Veterans' Affairs and Appropriations of the House of
Representatives and the Senate on the use of bid savings; (5)
require quarterly reports on super construction projects; (6)
require VA to complete a master plan for each VA medical
facility; (7) authorize VA to construct a new bed tower at the
James A. Haley Veterans' Hospital in Tampa, Florida; (8)
authorize Major Construction projects in Canandaigua, New York,
and Long Beach, San Francisco, West Los Angeles, and San Diego,
California, and authorize the appropriation of $561.420 million
to carry out these projects; and, (9) create, within VA's
Office of the Inspector General, an Assistant Inspector General
for Construction to conduct, supervise, and coordinate audits,
evaluations, and investigations into the planning, design,
contracting, execution, and construction of VA facilities and
infrastructure.
Background and Need for Legislation
Section 2--Department of Veterans Affairs construction reforms
VA operates one of the Federal government's largest real
property portfolios. Most of VA's real property assets belong
to the Veterans Health Administration (VHA), which operates
more than 7,000 owned and leased buildings encompassing over
160,000 square feet of clinical and administrative space across
more than 15,000 acres of land.\1\ Much of VHA's real property
assets are outdated, with the average age of a VA medical
facility approaching sixty years, making them ill-suited to the
provision of 21st century health care. Updating these
facilities necessitates a complex and costly major medical
facility construction program.
---------------------------------------------------------------------------
\1\See, the VA Construction Review Council Activity Report,
November 2012.
---------------------------------------------------------------------------
At the Committee's request, the Government Accountability
Office (GAO) undertook an audit and issued a report in April
2013 entitled, ``Additional Actions Needed to Decrease Delays
and Lower Costs of Major Medical Facility Projects.''\2\ In
this report, GAO found that VA's four largest medical center
construction projects--in Denver, Colorado; Las Vegas, Nevada;
New Orleans, Louisiana; and, Orlando, Florida--experienced
significant cost increases and lengthy schedule delays. The
cost delays for these projects ranged from 59 percent to 144
percent, as of November 2012, with a total cost increase of
nearly $1.5 billion and an average cost increase of
approximately $366 million. The schedule delays for these
projects ranged from 14 to 74 months, with an average delay of
35 months. Unsurprisingly, GAO concluded that these findings
indicated serious weaknesses in VA's construction management
processes. Despite numerous hearings by the Committee where VA
officials were warned that these projects were significantly
delayed and over budget, VA consistently maintained that the
projects were both on time and on budget.
---------------------------------------------------------------------------
\2\See, Government Accountability Office report, ``Additional
Actions Needed to Decrease Delays and Lower Costs of Major Medical
Facility Projects.'' http://www.gao.gov/assets/660/653585.pdf.
---------------------------------------------------------------------------
These weaknesses are perhaps nowhere more apparent than in
the management of the replacement medical center construction
project in Denver, Colorado. The replacement of the existing
Denver VA Medical Center began as a discussion in 1999 between
VA and the University of Colorado regarding the possibility of
a shared facility on the former Fitzsimmons Army base in
Aurora, Colorado. After undergoing numerous scope changes over
a period of several years, VA requested appropriations in 2010
for a standalone replacement medical center project with a
total estimated cost of $800 million. Due to the issuance of
contract modifications in December 2013, the original firm
target price of $604 million (not to exceed $610 million) was
revised to $615.9 million (not to exceed $621.8 million) and
the entire project remained capped at $800 million. However, in
December 2014, VA was found by the Civilian Board of Contract
Appeals to be in breach of its contract with the project's
general contractor, Kiewit Turner (KT), who began to demobilize
from the construction site.\3\ VA entered into an interim
agreement with KT to resume construction on the project and
later informed the Committee that an additional $830 million in
funding, for a total authorization of $1.73 billion--triple the
original authorization--was needed to continue the project,
which Congress ultimately provided. VA subsequently turned to
the Army Corps of Engineers, who revised the estimated
completion cost to $1.675 billion, to manage the project to
completion. Construction is expected to conclude on February 1,
2018.
---------------------------------------------------------------------------
\3\Kiewit-Turner, A Joint Venture v. Department of Veterans Affairs
CBCA3450 (December 9, 2014). This decision led to the first time VA
ever publicly admitted that this project was either over budget or
delayed.
---------------------------------------------------------------------------
In light of the mismanagement of this and other VA major
medical facility projects, the Committee strongly believes that
VA's construction management processes must be reformed,
strengthened, and aggressively overseen. As a result, Section 2
of the bill would require VA to enter into an agreement with a
non-VA entity to provide project management services for super
construction projects involving a total expenditure of more
than $100 million. Section 2 of the bill would also require VA
to use industry standards, standard designs, and best practices
for all medical facility construction projects and to complete
a master plan for each VA medical facility. Section 2 of the
bill would further prohibit VA from: obligating or expending
funds for advance planning or design for any super construction
project until 60 days after congressional notification,
obligating funds for a major medical facility project/super
construction project by more than 10 percent of the amount
approved by law without congressional approval, and using bid
savings amounts or funds for other than their original purpose
before 30 days after notifying such committees unless each
committee approves the obligation. To ensure that Congress is
kept fully informed about the status of VA construction
projects, Section 2 of the bill would require VA to report
regularly on the use of bid savings and on all super
construction projects. In addition to the above reforms, the
Committee urges VA to use competitively awarded third-party
independent contracts to provide building information models,
construction services for validating, measuring, and monitoring
construction costs and materials, and for validation of
contractor change order requests as well as to institute a
competitively awarded building enterprise management system for
the purpose of managing all ongoing super construction projects
using real-time data information sharing between project
contractors, non-Federal entities, and VA.
Section 3--Modification of authorization of Fiscal Year 2008 major
medical facility project at Department medical center in Tampa,
Florida
The Supplemental Appropriations Act, 2008 (P.L. 110-252;
122 Stat. 2326) authorized VA to renovate and upgrade an
existing bed tower at the James A. Haley Veterans' Hospital in
Tampa, Florida. However, VA's Fiscal Year 2016 budget
submission requested authority to construct a new, replacement
bed tower, using funds previously made available, rather than
renovation and upgrade of the existing bed tower. Section 3 of
the bill would provide that authority. According to VA,
constructing a new bed tower could be completed in 38 months,
which is considerably faster than the 144 months that a
renovation would require. VA also claims that proceeding with
construction instead of renovation would eliminate the need for
12 leases, leading to a potential cost avoidance of $3.84
million, and minimize both disruptions to facility operations
and patient safety risks associated with a multi-phased
renovation. VA has estimated that the new bed tower will
consist of an approximately 220,000 gross square foot structure
between four and six towers tall and will encompass 100 medical
surgical single patient rooms and service spaces.
Section 4--Authorization of Fiscal Year 2015 major medical facility
projects
Section 8104(2) of title 38, U.S.C., requires congressional
authorization for VA major medical facility projects and major
medical facility leases. A major medical facility project is
defined as a project involving construction, alteration, or
acquisition of a medical facility involving a total expenditure
of more than $10,000,000. A major medical facility lease is
defined as a lease for space for use as a new medical facility
at an average annual rental of more than $1,000,000. Along with
each major medical facility project or lease funding request,
section 8104(b) of title 38 U.S.C., requires VA to submit a
prospectus of the proposed medical facility to include a
detailed description of the medical facility and an estimate of
the cost for the construction, alteration, lease, or other
acquisition as well as an estimate of the cost of the equipment
required for operation of such facility, demographic data,
current and projected workload and utilization data, current
and projected operating costs, the priority score assigned to
the project under the VA's prioritization methodology, and a
description of each alternative that was considered in the case
of a new or replacement medical ideology.
Section 4 of the bill would authorize Major Construction
projects in Canandaigua, New York, and Long Beach, San
Francisco, West Los Angeles, and San Diego, California, and
authorize the appropriation of $561.420 million to carry out
these projects. VA has requested authorization for each of
these projects and its justification for them can be found in
VA's Fiscal Year 2015 budget submission.
Section 5--Assistant Inspector General for Construction
The VA Office of the Inspector General (VAOIG) was
established in 1978 by the Inspector General Act of 1978 (P.L.
95-452, 92 Stat. 1101). Today, VAOIG is responsible for
conducting and supervising audits and investigations;
recommending policies designed to promote economy and
efficiency, and to prevent and detect criminal activity, waste,
abuse, and mismanagement in VA programs and operations; and
keeping the VA Secretary and Congress fully informed about
problems and deficiencies in VA programs and operations and the
need for corrective action.\4\ VAOIG is currently organized to
include four Assistant Inspectors General operating under the
Inspector General and the Deputy Inspector General. The four
current VAOIG Assistant Inspectors General are: the Assistant
Inspector General for Investigations, the Assistant Inspector
General for Audits and Evaluations, the Assistant Inspector
General for Management and Administration, and the Assistant
Inspector General for Healthcare Inspections.
---------------------------------------------------------------------------
\4\See, Office of Inspector General Department of Veterans Affairs
Semiannual Report to Congress October 1, 2014-March 31, 2015. http://
www.va.gov/oig/pubs/sars/vaoig-sar-2015-1.pdf
---------------------------------------------------------------------------
Due to the many deficiencies that have been uncovered
regarding the management of VA's construction program, the
Committee believes that the addition of an Assistant Inspector
Generalfor Construction within VAOIG's existing organizational
structure would allow for greater oversight and scrutiny of VA
construction projects. As such, Section 5 of the bill would create an
Assistant Inspector General for Construction within VAOIG. The new
Assistant Inspector General for Construction would be required to have
expertise in construction and facilities management and would be
responsible for conducting, supervising, and coordinating audits,
evaluations, and investigations into the planning, design, contracting,
execution, and construction of VA facilities and infrastructure.
Hearings
There were no full Committee hearings held on H.R. 3106, as
amended.
On July 14, 2015, the Subcommittee on Health conducted a
legislative hearing on various bills introduced and drafted in
the 114th Congress, including draft legislation to authorize VA
major medical facility construction projects for FY 2015 and to
make certain improvements in the administration of VA medical
facility construction projects. The draft bill was later
introduced as H.R. 3106. The following witnesses testified:
The Honorable Tim Walberg, U.S. House of Representatives,
7th Congressional District; Michigan; The Honorable Sean Duffy,
U.S. House of Representatives, 7th Congressional District,
Wisconsin; The Honorable Steve Stivers, U.S. House of
Representatives, 15th Congressional District, Ohio; The
Honorable Kyrsten Sinema, U.S. House of Representatives, 9th
Congressional District, Arizona; The Honorable Doug Collins,
U.S. House of Representatives, 9th Congressional District,
Georgia; The Honorable Mike Coffman, U.S. House of
Representatives, 6th Congressional District, Colorado; The
Honorable Jeff Denham, U.S. House of Representatives, 10th
Congressional District, California; The Honorable Charles
Boustany, U.S. House of Representatives, 3rd Congressional
District, Louisiana; The Honorable Brad Wenstrup, U.S. House of
Representatives, 2nd Congressional District, Ohio; Ian de
Planque, Legislative Director American Legion; Adrian Atizado,
Assistant National Legislative Director, Disabled American
Veterans; Carlos Fuentes, Senior Legislative Associate,
National Legislative Service Veterans of Foreign Wars of the
United States; and, Madhulika Agarwal MD, MPH, Deputy Under
Secretary for Health for Policy and Services, Veterans Health
Administration U.S. Department of Veterans Affairs, who was
accompanied by Janet P. Murphy MBA, Acting Deputy Under
Secretary for Health for Operations and Management, Veterans
Health Administration U.S. Department of Veterans Affairs and
Jessica Tanner, General Attorney Office of General Counsel,
U.S. Department of Veterans Affairs.
Statements for the Record were submitted by:
The American Academy of Audiology and the American Speech-
Language Association; the Children of Vietnam Veterans Health
Alliance, the International Hearing Society; Iraq and
Afghanistan Veterans of America; the National Medical
Association; Paralyzed Veterans of America; VetsFirst, a
program of the United Spinal Association: Vietnam Veterans of
America; Warrior Canine Connection; the American Academy of
Ophthalmology; and, the American Medical Association.
Subcommittee Consideration
On July 22, 2015, the Subcommittee on Health met in open
markup session, a quorum being present, and favorably forwarded
H.R. 3106, as amended, favorably to the full Committee by voice
vote. During consideration of the bill, the following amendment
was considered:
An amendment offered by Representative Mike Coffman from
Colorado, which would require VA to share any information
needed by the non-Department Federal entity construction agent
to provide full project management services for a super
construction project, provide mandatory guidelines for the
handling of change-orders to the underlying construction or
design contracts, and require VA to ensure that VA personnel
with construction responsibility receive ongoing professional
training and development on industry standards and best
practices. The amendment was agreed to by voice vote.
Committee Consideration
On September 17, 2015, the full Committee met in open
markup session, a quorum being present, and ordered H.R. 3106,
as amended, reported favorably to the House of Representatives,
by voice vote.
During consideration of the bill, the following amendments
were considered:
An amendment in the nature of a substitute by
Representative Jeff Miller of Florida, which would create an
Assistant Inspector General for Construction within VA's Office
of the Inspector General to be responsible for conducting,
supervising, and coordinating audits, evaluations, and
investigations into the planning, design, contracting,
execution, and construction of VA facilities and
infrastructure. The amendment in the nature of a substitute was
agreed to by voice vote.
An amendment to the amendment in the nature of a substitute
by Representative Julia Brownley of California, which would
require the Assistant Inspector General for Construction to
report to Congress 60 days after his/her appointment and
quarterly thereafter and to notify Congress of the findings of
any investigation undertaken as well as any serious or flagrant
problems or deficiencies requiring immediate congressional
action. The amendment to the amendment in the nature of a
substitute was agreed to by voice vote.
An amendment to the amendment in the nature of a substitute
by Representative Kathleen Rice of New York, which would
require VA to enter into a contract with an appropriate non-VA
Federal entity to conduct forensic audits of any major medical
facility or super construction project for which the total
expenditures exceed the amount specified in law by more than 25
percent and would require VA to enter into a contract with an
appropriate non-VA Federal entity to conduct a forensic audit
of the replacement medical center construction project in
Aurora, Colorado. The amendment to the amendment in the nature
of a substitute was agreed to by voice vote.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, there were no recorded votes in
connection with ordering H.R. 3106, as amended, reported to the
House. A motion by Ranking Member Corrine Brown of Florida to
report H.R. 3106, as amended, favorably to the House of
Representatives was adopted by voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are that the Secretary will use these
provisions to improve the management and strengthen the
oversight of VA construction projects, modify the authorization
of a Fiscal Year 2008 VA major medical facility project in
Tampa, Florida, and authorize Fiscal Year 2015 major medical
facility projects.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Earmarks and Tax and Tariff Benefits
H.R. 3106, as amended, does not contain any Congressional
earmarks, limited tax benefits, or limited tariff benefits as
defined in clause 9 of rule XXI of the Rules of the House of
Representatives.
Committee Cost Estimate
The Committee adopts as its own the cost estimate on H.R.
3106, as amended, prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
for H.R. 3106, as amended, provided by the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974:
U.S. Congress,
Congressional Budget Office
Washington, DC, October 22, 2015.
Hon. Jeff Miller,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 3106, the
Construction Reform Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Ann E.
Futrell.
Sincerely,
Keith Hall, Director.
Enclosure.
H.R. 3106--Construction Reform Act of 2015
H.R. 3106 would require the Department of Veterans Affairs
(VA) to hire an Assistant Inspector General for construction
projects. That official would be responsible for assessing the
planning, design, and execution of major construction projects
and leases at VA. Based on the average salary of senior
executive service employees at VA, we estimate the salary and
benefits for this position would amount to about $215,000 in
2016. After adjusting for inflation, CBO estimates that
implementing this provision would cost $1 million over the
2016-2020 period.
The bill also would modify VA's procedures for managing
major construction projects, require employee training on
industry standards of construction projects, and require
quarterly reports. CBO expects preparing necessary regulations,
developing online training modules, and preparing reports would
cost less than $500,000 over the 2016-2020 period.
In addition, the bill would authorize new construction and
renovation of five medical facilities for which funds have
already been appropriated. Because spending on those projects
would be limited to the amounts appropriated for those
purposes, CBO estimates that implementing those provisions
would not require additional appropriations.
In total, CBO estimates that implementing H.R. 3106 would
have discretionary costs of $1 million over the 2016-2020
period; such spending would be subject to the availability of
appropriated funds.
Enacting H.R. 3106 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 3106 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2026.
H.R. 3106 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Ann E. Futrell.
The estimate was approved by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 3106, as amended, prepared by the
Director of the Congressional Budget Office pursuant to section
423 of the Unfunded Mandates Reform Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
3106, as amended.
Statement of Constitutional Authority
Pursuant to Article I, section 8 of the United States
Constitution, the reported bill is authorized by Congress'
power to ``provide for the common Defense and general Welfare
of the United States.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Statement on Duplication of Federal Programs
Pursuant to section 3(g) of H. Res. 5, 114th Cong. (2015),
the Committee finds that no provision of H.R. 3106, as amended,
establishes or reauthorizes a program of the Federal Government
known to be duplicative of another Federal program, a program
that was included in any report from the Government
Accountability Office to Congress pursuant to section 21 of
Public Law 111-139, or a program related to a program
identified in the most recent Catalog of Federal Domestic
Assistance.
Disclosure of Directed Rulemaking
Pursuant to section 3(i) of H. Res. 5, 114th Cong. (2015),
the Committee estimates that H.R. 3106, as amended, contains no
directed rule making that would require the Secretary to
prescribe regulations.
Section-by-Section Analysis of the Legislation
Section 1--Short title
Section 1 would provide the short title of H.R. 3106, as
amended, as the ``Construction Reform Act of 2015.''
Section 2--Department of Veterans Affairs construction reforms
Section 2(a) would amend Section 8103 of title 38 U.S.C.,
by adding at the end a new subsection (e). Subsection (e) of
section 8103 of title 38 U.S.C., would require the Secretary to
enter into an agreement with an appropriate non-Department
Federal entity to provide full project management services--
including the management over the project design, acquisition,
construction, and contract change--for any super construction
project and require the Secretary to reimburse such Federal
entity for all costs associated with the provision of project
management services under such agreement.
Section 2(b) would amend section 8103 of title 38 U.S.C.,
by adding at the end new subsections (f), (g), (h), and (i).
Proposed subsection (f) of section 8103 of title 38 U.S.C.,
would require the Secretary to use, to the maximum extent
practicable, industry standard, standard designs, and best
practices in carrying out the construction of medical
facilities.
Proposed subsection (g) of section 8103 of title 38 U.S.C.,
would require the Secretary to provide, on a non-reimbursable
basis, a non-Department Federal entity with which the Secretary
has entered into an agreement under subsection (e): design,
planning, and construction assistance before the entity issues
a request for proposals for the design or construction of the
super construction project covered by the agreement; any
documents or information needed for the entity to carry out the
responsibilities of the entity with respect to the super
construction project; and, upon the request of the entity, any
other assistance that the entity determines necessary to carry
out such responsibilities.
Proposed subsection (h) of section 8103 of title 38 U.S.C.,
would require a non-Department Federal entity with which the
Secretary has entered into an agreement under subsection (e) to
issue a final decision on a proposed change to a contract
entered into by the non-Department Federal entity that is
estimated at a value of less than $250,000 by not later than 30
days after the date on which the change is proposed and, with
respect to a proposed change to such contract that is estimated
at a value of $250,000 or more, authorize the Secretary to
provide the entity the Secretary's recommendations regarding
the change and authorize the Secretary to issue the final
decision regarding such change during the 30-day period
beginning on the date on which the entity furnished to the
Secretary information regarding such change and, if the
Secretary does not issue a final decision during the 30-day
period described above, authorize the non-Department Federal
entity to issue a final decision regarding such change by no
later than 90 days from the date the entity is furnished
information regarding such change by the Secretary.
Proposed subsection (i) of section 8103 of title 38 U.S.C.,
would require the Secretary to ensure that each employee of the
Department with responsibilities relating to the construction
or alteration of medical facilities--including such
construction or alteration carried out pursuant to contracts or
agreements--undergoes a program of ongoing professional
training and development designed to ensure that employees
maintain adequate expertise relating to industry standards and
best practices for the acquisition of design and construction
services and authorize the Secretary to provide such training
program through a contract or agreement with a non-Department
Federal entity or with a non-Department Federal entity.
Section 2(c) would amend section 8104(a) of title 38
U.S.C., by redesignating paragraph (3) as paragraph (4); by
inserting after paragraph (2) a new paragraph (3). The new
paragraph (3) would prohibit the Secretary from obligating or
expending funds for advance planning or design for any super
construction project until 60 days after the date on which the
Secretary submits to the Committees on Veterans' Affairs and
Appropriations of the House of Representatives and Senate
notice of such obligation or expenditure. The new paragraph
(4), as redesignated in this section, contains a new
subparagraph (C) that would define the term ``super
construction project'' as a project for the construction,
alteration, and acquisition of a medical facility involving a
total expenditure of more than $1 million but not an
acquisition by exchange and stipulate that the amendments made
in this section would be required to take effect on the date of
the enactment of this Act and are required to apply with
respect to a construction project that is initiated on or after
that date.
Section 2(d) would amend subsection (c) of section 8104 of
title 38 U.S.C., to prohibit the Secretary from obligating
funds for a major medical facility project or a super
construction project approved by a law described in subsection
(a)(2) in an amount that would cause the total amount obligated
for that project to exceed the amount specified in the law for
that project (or would add to total obligations exceeding such
specified amount) by not more than 10 percentunless the
Committee on Veterans' Affairs and the Committee on Appropriations of
the Senate and the Committee on Veterans' Affairs and the Committee on
Appropriations of the House of Representatives each approve in writing
the obligation of those funds. This Section would also require the
Secretary to enter into a contract with an appropriate non-Department
Federal entity with the ability to conduct forensic audits on medical
facility projects for the conduct of an external forensic audit of the
expenditures relating to any major medical facility or super
construction project for which the total expenditures exceed the amount
specified in the law for the project by more than 25 percent and to
enter into a contract with an appropriate non-Department Federal entity
with the ability to conduct forensic audits on medical facility
projects for the conduct of an external audit of the medical center
construction project in Aurora, Colorado.'' Additionally, Section(2)(d)
would amend subsection (d) of section 8104 of title 38 U.S.C. in
paragraph (2)(B) in the matter preceding clause (i) by striking
``Whenever'' and inserting ``Before'' and by adding at the end a new
paragraph preventing the Secretary from obligating any funds described
in paragraph (1) or amounts described in (2) before the date that is 30
days after the notification submitted under paragraph (1) or paragraph
(2)(B), as the case may be, unless the Committee on Veterans' Affairs
and the Committee on Appropriations of the Senate and the Committee on
Veterans' Affairs and the Committee on Appropriations of the House of
Representatives each approve in writing the obligation of those funds
or amounts. Section 2(d) would further amend subsection (d)(1) of
section 8104 of title 38 U.S.C., by striking ``each committee'' and
inserting ``the Committee on Veterans' Affairs and the Committee on
Appropriations of the Senate and the Committee on Veterans' Affairs and
the Committee on Appropriations of the House of Representatives'' and
amend subsection (d)(2)(B) of section 8104 of title 38 U.S.C., by
adding at the end a new clause that would stipulate that, with respect
to the major construction project that is the source of the bid
savings, the amounts already obligated or available in the project
reserve for such project, the percentage of such project that has been
completed, and the amount of such bid savings that is already obligated
or otherwise being used for a purpose other than such project.
Section 2(e) would amend subchapter I of chapter 81 of
title 38 U.S.C., by inserting a new section entitled,
``Sec. 8120. Quarterly report on super construction projects''
and making relevant clerical amendments.
Sec. 8120(a) would require the Secretary to submit, by not
later than 30 days after the last day of each fiscal quarter, a
quarterly report on the super construction projects carried out
by the Secretary during such quarter to the Committees on
Veterans' Affairs of the Senate and the House of
Representatives and would require the quarterly report to
include, for each such project, the budgetary and scheduling
status of the project as of the last day of the quarter covered
by the report and the actual cost and schedule variances of the
project as of such day compared to the planned cost and
schedules for the project.
Sec. 8120(b) would define the term ``super construction
project'' as the meaning given such term in section
8103(a)(4)(C) of title 38 U.S.C.
Section 2(f) would require the Secretary to complete a
master plan to inform investment decisions and funding requests
over a 10-year period by not later than December 31, 2016, for
each medical facility to meet the health care needs of a
changing veteran population through a combination of health
care from VA and community resources and to maximize the best
use of the land and structures compromising such medical
facility. Section 2(f) would also require the Secretary to
complete a master plan for each medical facility of the
Department for which construction is completed after the date
of the enactment of this Act by not later than the earlier of
either the date on which activation is completed or the date of
the formal dedication of the facility.
Section 3--Modification of authorization of fiscal year 2008 major
medical facility project at department medical center in Tampa,
Florida
Section 3(a) would amend chapter 3 of the Supplemental
Appropriations Act of 2008 (P.L. 110-252; 122 Stat. 2326) by
inserting ``and for constructing a new bed tower in Tampa,
Florida, in lieu of providing bed tower upgrades at such
medical center'' after ``Five Year Capital Plan'' under the
heading ``Department of Veterans Affairs--Departmental
Administration--Construction, Major Projects''.
Section 3(b) would designate subsection (a) as an emergency
requirement pursuant to section 4(g) of the Statutory Pay-As-
You-Go Act of 2010 (2 U.S.C. 933(g)) and, in the Senate,
designate subsection (a) as an emergency requirement pursuant
to section 403(a) of S. Con. Res. 13 (111th Congress), the
concurrent resolution on the budget for fiscal year 2010.
Section 4--Authorization of Fiscal Year 2015 major medical facility
projects
Section 4(a) would authorize the Secretary of Veterans
Affairs to carry out the following major medical facility
projects, with each project to be carried out in an amount not
to exceed the amount specified for that project: construction
of a community living center, outpatient clinic, renovated
domiciliary, and renovation of existing buildings in
Canandaigua, New York, in an amount not to exceed $158,980,000;
seismic corrections to the mental health and community living
center in Long Beach, California, in an amount not to exceed
$126,100,000; seismic corrections of 12 buildings in West Los
Angeles, California, in an amount not to exceed $70,500,000;
and the construction of a spinal cord injury building and
seismic corrections in San Diego, California, in an amount not
to exceed $205,840,000.
Section 4(b) of the bill would authorize $561,420,000 to be
appropriated to the Secretary of Veterans Affairs for Fiscal
Year 2015 or the year in which funds are appropriated for the
Construction, Major Projects account for the projects
authorized in subsection (a).
Section 4(c) would stipulate that the projects authorized
under this Section may only be carried out using: funds
appropriated for Fiscal Year 2015 pursuant to the authorization
of appropriations in subsection (b); funds available for
Construction, Major Projects for a fiscal year before Fiscal
Year 2015 that remain available for obligation; funds available
for Construction, Major Projects, for a fiscal year after
Fiscal Year 2015 that remain available for obligation; funds
appropriated for Construction, Major Projects, for Fiscal Year
2015 for a category of activity not specific to a project;
funds appropriated for Construction, Major Projects, for a
Fiscal Year before 2015 for a category of activity not specific
to a project; and funds appropriated for Construction, Major
Projects, for a Fiscal Year after 2015 for a category of
activity not specific to a project.
Section 5--Assistant Inspector General for Construction
Section 5(a) would amend Chapter 3 of title 38 U.S.C. by
inserting, after section 312, a new section entitled,
``Sec. 312A. Assistant Inspector General for Construction.''
Proposed sec. 312A(a) would create an Assistant Inspector
General for Construction within the VA Office of the Inspector
General. The Assistant Inspector General for Construction would
be responsible for conducting, supervising, and coordinating
audits, evaluations, and investigations of the planning,
design, contracting, execution, and construction of facilities
and infrastructure of VA, including major and minor
construction projects and leases.
Proposed sec. 312A(b) would require any individual
appointment as the Assistant Inspector General for Construction
to have expertise in construction and facilities management.
Proposed sec. 312A(c) would require the Assistant Inspector
General for Construction to submit a report summarizing his/her
activities during the 120-day period ending on the day of the
report to the Committees on Veterans' Affairs of the Senate and
the House of Representatives by not later than 60 days after an
Assistant Inspector General for Construction is appointed and
quarterly after that. Sec. 312A(c) would also require the
Assistant Inspector General for Construction to promptly
provide the findings of any investigation undertaken to the
Committees on Veterans' Affairs of the Senate and the House of
Representatives and to promptly notify the Committees if a
serious or flagrant problem or deficiency relating to the
administration or operation of any VA construction program is
identifying if, during the course of the investigation, the
Assistant Inspector General for Construction determines that
Congress should take immediate action. Sec. 312A(c) would
further stipulate the prohibition against public disclosure of
any information that is specifically prohibited from disclosure
by any other provision of law or specifically required by
Executive Order to be protected from disclosure in the interest
of national defense or national security or in the conduct of
foreign affairs or part of an ongoing criminal investigation.
Section 5(b) would amend the table of contents at the
beginning of Chapter 3 of title 38 U.S.C., by inserting ``312A.
Assistant Inspector General for Construction'' after the item
relating to section 312.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART I--GENERAL PROVISIONS
* * * * * * *
CHAPTER 3--DEPARTMENT OF VETERANS AFFAIRS
Sec.
301. Department.
* * * * * * *
312A. Assistant Inspector General for Construction.
* * * * * * *
Sec. 312A. Assistant Inspector General for Construction
(a) In General.--There is in the Office of Inspector General
an Assistant Inspector General for Construction. The Assistant
Inspector General for Construction is responsible for
conducting, supervising, and coordinating audits, evaluations,
and investigations of the planning, design, contracting,
execution, and construction of facilities and infrastructure of
the Department, including major and minor construction projects
and leases.
(b) Qualifications.--Each individual appointed as Assistant
Inspector General for Construction shall be an individual who
has expertise in construction and facilities management.
(c) Reports.--(1) Not later than 60 days after the
appointment of an individual as the Assistant Inspector General
for Construction, and every calendar quarter thereafter, the
Assistant Inspector General for Construction shall submit to
the Committees on Veterans' Affairs of the Senate and House of
Representatives a report summarizing the activities of the
Assistant Inspector General for Construction during the 120-day
period ending on the date of such report.
(2) In addition to the report required in paragraph (1), and
the requirements contained in section 5 of the Inspector
General Act of 1978 (5 U.S.C. App.), the Assistant Inspector
General for Construction shall promptly provide to the
Committees on Veterans' Affairs of the Senate and House of
Representatives the findings of any investigation undertaken by
the Assistant Inspector General for Construction, and shall
notify the Committees promptly if the Assistant Inspector
General for Construction identifies any serious or flagrant
problem or deficiency relating to the administration or
operation of any construction program of the Department, if,
during the course of any investigation, the Assistant Inspector
General for Construction determines that Congress should take
immediate action.
(3) Nothing in this subsection shall be construed to
authorize the public disclosure of information that is--
(A) specifically prohibited from disclosure by any
other provision of law;
(B) specifically required by Executive Order to be
protected from disclosure in the interest of national
defense or national security or in the conduct of
foreign affairs; or
(C) a part of an ongoing criminal investigation.
* * * * * * *
PART VI--ACQUISITION AND DISPOSITION OF PROPERTY
* * * * * * *
CHAPTER 81--ACQUISITION AND OPERATION OF HOSPITAL AND DOMICILIARY
FACILITIES; PROCUREMENT AND SUPPLY; ENHANCED-USE LEASES OF REAL
PROPERTY
SUBCHAPTER I--ACQUISITION AND OPERATION OF MEDICAL FACILITIES
Sec.
8101. Definitions.
* * * * * * *
8120. Quarterly report on super construction projects.
* * * * * * *
SUBCHAPTER I--ACQUISITION AND OPERATION OF MEDICAL FACILITIES
* * * * * * *
Sec. 8103. Authority to construct and alter, and to acquire sites for,
medical facilities
(a) Subject to section 8104 of this title, the Secretary--
(1) may construct or alter any medical facility and
may acquire, by purchase, lease, condemnation,
donation, exchange, or otherwise, such land or
interests in land as the Secretary considers necessary
for use as the site for such construction or
alteration;
(2) may acquire, by purchase, lease, condemnation,
donation, exchange, or otherwise, any facility
(including the site of such facility) that the
Secretary considers necessary for use as a medical
facility; and
(3) in order to assure compliance with section
8110(a)(2) of this title, in the case of any outpatient
medical facility for which it is proposed to lease
space and for which a qualified lessor and an
appropriate leasing arrangement are available, shall
execute a lease for such facility within 12 months
after funds are made available for such purpose.
(b) Whenever the Secretary considers it to be in the interest
of the United States to construct a new medical facility to
replace an existing medical facility, the Secretary (1) may
demolish the existing facility and use the site on which it is
located for the site of the new medical facility, or (2) if in
the judgment of the Secretary it is more advantageous to
construct such medical facility on a different site in the same
locality, may exchange such existing facility and the site of
such existing facility for the different site.
(c) Whenever the Secretary determines that any site acquired
for the construction of a medical facility is not suitable for
that purpose, the Secretary may exchange such site for another
site to be used for that purpose or may sell such site.
(d)(1) The Secretary may provide for the acquisition of not
more than three facilities for the provision of outpatient
services or nursing home care through lease-purchase
arrangements on real property under the jurisdiction of the
Department of Veterans Affairs.
(2)(A) In carrying out this subsection and notwithstanding
any other provision of law, the Secretary may lease, with or
without compensation and for a period of not to exceed 35
years, to another party any of the real property described in
paragraph (1) of this subsection.
(B) Such real property shall be used as the site of a
facility referred to in paragraph (1) of this subsection--
(i) constructed and owned by the lessee of such real
property; and
(ii) leased under paragraph (3)(A) of this subsection
to the Department for such use and for such other
activities as the Secretary determines are appropriate.
(3)(A) The Secretary may enter into a lease for the use of
any facility described in paragraph (2)(B) of this subsection
for not more than 35 years under such terms and conditions as
may be in the best interests of the Department.
(B) Each agreement to lease a facility under subparagraph (A)
of this paragraph shall include a provision that--
(i) the obligation of the United States to make
payments under the agreement is subject to the
availability of appropriations for that purpose; and
(ii) the ownership of such facility shall vest in the
United States at the end of such lease.
(4)(A) The Secretary may sublease any space in such a
facility to another party at a rate not less than--
(i) the rental rate paid by the Secretary for such
space under paragraph (3) of this subsection; plus
(ii) the amount the Secretary pays for the costs of
administering such facility (including operation,
maintenance, utility, and rehabilitation costs) which
are attributable to such space.
(B) In any such sublease, the Secretary shall include such
terms relating to default and nonperformance as the Secretary
considers appropriate to protect the interests of the United
States.
(5) The Secretary shall use the receipts of any payment for
the lease of real property under paragraph (2) for the payment
of the lease of a facility under paragraph (3).
(6) The authority to enter into an agreement under this
subsection--
(A) shall not take effect until the Secretary has
entered into agreements under section 316 of this title
to carry out at least three collocations; and
(B) shall expire on October 1, 1993.
(e) In the case of any super construction project (as such
term is defined in section 8104(a)(4)(C)), the Secretary shall
enter into an agreement with an appropriate non-Department
Federal entity to provide full project management services for
the super construction project, including management over the
project design, acquisition, construction, and contract
changes. Such agreement shall provide that the Secretary shall
reimburse such Federal entity for all costs associated with the
provision of project management services under the agreement.
(f) To the maximum extent practicable, the Secretary shall
use industry standards, standard designs, and best practices in
carrying out the construction of medical facilities.
(g)(1) The Secretary shall provide to a non-Department
Federal entity with which the Secretary has entered into an
agreement under subsection (e)--
(A) design, planning, and construction assistance
before the entity issues a request for proposals for
the design or construction of the super construction
project covered by the agreement;
(B) any documents or information needed for the
entity to carry out the responsibilities of the entity
with respect to the super construction project; and
(C) upon the request of the entity, any other
assistance that the entity determines necessary to
carry out such responsibilities.
(2) Any assistance provided under paragraph (1) shall be
provided to the non-Department Federal entity on a non-
reimbursable basis.
(h)(1) With respect to a proposed change to a contract
entered into by a non-Department Federal entity with which the
Secretary has entered into an agreement under subsection (e)
that is estimated at a value of less than $250,000, the non-
Department Federal entity shall issue a final decision
regarding such change not later than 30 days after the date on
which the change is proposed.
(2) With respect to a proposed change to such a contract that
is estimated at a value of $250,000 or more--
(A) the Secretary may provide to the entity the
recommendations of the Secretary regarding such change;
(B) during the 30-day period beginning on the date on
which the entity furnishes to the Secretary information
regarding such change, the Secretary may issue the
final decision regarding such change; and
(C) if the Secretary does not issue a final decision
under subparagraph (B), during the 30-day period
following the period described in such paragraph, the
entity shall issue a final decision regarding such a
change no later than 90 days from when the entity
furnished information regarding such a change to the
Secretary.
(i) The Secretary shall ensure that each employee of the
Department with responsibilities relating to the construction
or alteration of medical facilities, including such
construction or alteration carried out pursuant to contracts or
agreements, undergoes a program of ongoing professional
training and development. Such program shall be designed to
ensure that employees maintain adequate expertise relating to
industry standards and best practices for the acquisition of
design and construction services. The Secretary may provide the
program under this subsection through a contract or agreement
with a non-Federal entity or with a non-Department Federal
entity.
Sec. 8104. Congressional approval of certain medical facility
acquisitions
(a)(1) The purpose of this subsection is to enable Congress
to ensure the equitable distribution of medical facilities
throughout the United States, taking into consideration the
comparative urgency of the need for the services to be provided
in the case of each particular facility.
(2) No funds may be appropriated for any fiscal year, and the
Secretary may not obligate or expend funds (other than for
advance planning and design), for any major medical facility
project or any major medical facility lease unless funds for
that project or lease have been specifically authorized by law.
(3) The Secretary may not obligate or expend funds for
advance planning or design for any super construction project,
until the date that is 60 days after the date on which the
Secretary submits to the Committee on Veterans' Affairs and the
Committee on Appropriations of the Senate and the Committee on
Veterans' Affairs and the Committee on Appropriations of the
House of Representatives notice of such obligation or
expenditure.
[(3)] (4) For the purpose of this subsection:
(A) The term ``major medical facility project'' means
a project for the construction, alteration, or
acquisition of a medical facility involving a total
expenditure of more than $10,000,000, but such term
does not include an acquisition by exchange.
(B) The term ``major medical facility lease'' means a
lease for space for use as a new medical facility at an
average annual rental of more than $1,000,000.
(C) The term ``super construction project'' means a
project for the construction, alteration, or
acquisition of a medical facility involving a total
expenditure of more than $100,000,000, but such term
does not include an acquisition by exchange.
(b) Whenever the President or the Secretary submit to the
Congress a request for the funding of a major medical facility
project (as defined in subsection (a)(3)(A)) or a major medical
facility lease (as defined in subsection (a)(3)(B)), the
Secretary shall submit to each committee, on the same day, a
prospectus of the proposed medical facility. Any such
prospectus shall include the following:
(1) A detailed estimate of the total costs of the
medical facility to be constructed, altered, leased, or
otherwise acquired under this subchapter, including a
description of the location of such facility and, in
the case of a prospectus proposing the construction of
a new or replacement medical facility, a detailed
report of the consideration that was given to acquiring
an existing facility by lease or purchase and to the
sharing of health-care resources with the Department of
Defense under section 8111 of this title. Such detailed
estimate shall include an identification of each of the
following:
(A) Total construction costs.
(B) Activation costs.
(C) Special purpose alterations (lump-sum
payment) costs.
(D) Number of personnel.
(E) Total costs of ancillary services,
equipment, and all other items.
(2) Demographic data applicable to such facility,
including information on projected changes in the
population of veterans to be served by the facility
over a five-year period, a ten-year period, and a
twenty-year period.
(3) Current and projected workload and utilization
data regarding the facility, including information on
projected changes in workload and utilization over a
five-year period, a ten-year period, and a twenty-year
period.
(4) Projected operating costs of the facility,
including both recurring and non-recurring costs
(including and identifying both recurring and non-
recurring costs (including activation costs and total
costs of ancillary services, equipment and all other
items)) over a five-year period, a ten-year period, and
a twenty-year period.
(5) The priority score assigned to the project or
lease under the Department's prioritization methodology
and, if the project or lease is being proposed for
funding before a project or lease with a higher score,
a specific explanation of the factors other than the
priority score that were considered and the basis on
which the project or lease is proposed for funding
ahead of projects or leases with higher priority
scores.
(6) In the case of a prospectus proposing the
construction of a new or replacement medical facility,
each of the following:
(A) A detailed estimate of the total costs
(including total construction costs, activation
costs, special purpose alterations (lump-sum
payment) costs, number of personnel and total
costs of ancillary services, equipment and all
other items) for each alternative to
construction of the facility that was
considered.
(B) A comparison of total costs to total
benefits for each such alternative.
(C) An explanation of why the preferred
alternative is the most effective means to
achieve the stated project goals and the most
cost-effective alternative.
(7) In the case of a prospectus proposing funding for
a major medical facility lease, a detailed analysis of
how the lease is expected to comply with Office of
Management and Budget Circular A-11 and section 1341 of
title 31 (commonly referred to as the ``Anti-Deficiency
Act''). Any such analysis shall include--
(A) an analysis of the classification of the
lease as a ``lease-purchase'', ``capital
lease'', or ``operating lease'' as those terms
are defined in Office of Management and Budget
Circular A-11;
(B) an analysis of the obligation of
budgetary resources associated with the lease;
and
(C) an analysis of the methodology used in
determining the asset cost, fair market value,
and cancellation costs of the lease.
[(c) Not less than 30 days before obligating funds for a
major medical facility project approved by a law described in
subsection (a)(2) of this section in an amount that would cause
the total amount obligated for that project to exceed the
amount specified in the law for that project (or would add to
total obligations exceeding such specified amount) by more than
10 percent, the Secretary shall provide the committees with
notice of the Secretary's intention to do so and the reasons
for the specified amount being exceeded.]
(c)(1) The Secretary may not obligate funds for a major
medical facility project or a super construction project
approved by a law described in subsection (a)(2) in an amount
that would cause the total amount obligated for that project to
exceed the amount specified in the law for that project (or
would add to total obligations exceeding such specified amount)
by more than 10 percent unless the Committee on Veterans'
Affairs and the Committee on Appropriations of the Senate and
the Committee on Veterans' Affairs and the Committee on
Appropriations of the House of Representatives each approve in
writing the obligation of those funds.
(2) The Secretary shall--
(A) enter into a contract with an appropriate non-
department Federal entity with the ability to conduct
forensic audits on medical facility projects for the
conduct of an external forensic audit of the
expenditures relating to any major medical facility or
super construction project for which the total
expenditures exceed the amount specified in the law for
the project by more than 25 percent; and
(B) enter into a contract with an appropriate non-
department Federal entity with the ability to conduct
forensic audits on medical facility projects for the
conduct of an external audit of the medical center
construction project in Aurora, Colorado.
(d)(1) Except as provided in paragraph (2), in any case in
which the Secretary proposes that funds be used for a purpose
other than the purpose for which such funds were appropriated,
the Secretary shall promptly notify [each committee] the
Committee on Veterans' Affairs and the Committee on
Appropriations of the Senate and the Committee on Veterans'
Affairs and the Committee on Appropriations of the House of
Representatives, in writing, of the particulars involved and
the reasons why such funds were not used for the purpose for
which appropriated.
(2)(A) In any fiscal year, unobligated amounts in the
Construction, Major Projects account that are a direct result
of bid savings from a major construction project may only be
obligated for major construction projects authorized for that
fiscal year or a previous fiscal year.
(B) [Whenever] Before the Secretary obligates amounts for a
major construction project under subparagraph (A), the
Secretary shall submit to the Committee on Veterans' Affairs
and the Committee on Appropriations of the Senate and the
Committee on Veterans' Affairs and the Committee on
Appropriations of the House of Representatives notice of the
following:
(i) The major construction project that is the source
of the bid savings.
(ii) The other major construction project for which
the amounts are being obligated.
(iii) The amounts being obligated for such other
major construction project.
(iv) With respect to the major construction project
that is the source of the bid savings--
(I) the amounts already obligated or
available in the project reserve for such
project;
(II) the percentage of such project that has
been completed; and
(III) the amount of such bid savings that is
already obligated or otherwise being used for a
purpose other than such project.
(C) The Secretary may not obligate an amount under
subparagraph (A) to expand the purpose of a major construction
project except pursuant to a provision of law enacted after the
date on which the Secretary submits to the committees described
in subparagraph (B) notice of the following:
(i) The major construction project that is the source
of the bid savings.
(ii) The major construction project for which the
Secretary intends to expand the purpose.
(iii) A description of such expansion of purpose.
(iv) The amounts the Secretary intends to obligate to
expand the purpose.
(3) The Secretary may not obligate any funds described in
paragraph (1) or amounts described in paragraph (2) before the
date that is 30 days after the notification submitted under
paragraph (1) or paragraph (2)(B), as the case may be, unless
the Committee on Veterans' Affairs and the Committee on
Appropriations of the Senate and the Committee on Veterans'
Affairs and the Committee on Appropriations of the House of
Representatives each approve in writing the obligation of those
funds or amounts.
(e) The Secretary may accept gifts or donations for any of
the purposes of this subchapter.
(f) The Secretary may not obligate funds in an amount in
excess of $500,000 from the Advance Planning Fund of the
Department toward design or development of a major medical
facility project (as defined in subsection (a)(3)(A)) until--
(1) the Secretary submits to the committees a report
on the proposed obligation; and
(2) a period of 30 days has passed after the date on
which the report is received by the committees.
(g) The limitation in subsection (f) does not apply to a
project for which funds have been authorized by law in
accordance with subsection (a)(2).
(h)(1) Not less than 30 days before entering into a major
medical facility lease, the Secretary shall submit to the
Committees on Veterans' Affairs of the Senate and the House of
Representatives--
(A) notice of the Secretary's intention to enter into
the lease;
(B) a detailed summary of the proposed lease;
(C) a description and analysis of any differences
between the prospectus submitted pursuant to subsection
(b) and the proposed lease; and
(D) a scoring analysis demonstrating that the
proposed lease fully complies with Office of Management
and Budget Circular A-11.
(2) Each committee described in paragraph (1) shall ensure
that any information submitted to the committee under such
paragraph is treated by the committee with the same level of
confidentiality as is required by law of the Secretary and
subject to the same statutory penalties for unauthorized
disclosure or use as the Secretary.
(3) Not more than 30 days after entering into a major medical
facility lease, the Secretary shall submit to each committee
described in paragraph (1) a report on any material differences
between the lease that was entered into and the proposed lease
described under such paragraph, including how the lease that
was entered into changes the previously submitted scoring
analysis described in subparagraph (D) of such paragraph.
* * * * * * *
Sec. 8120. Quarterly report on super construction projects
(a) Quarterly Reports Required.--Not later than 30 days after
the last day of each fiscal quarter the Secretary shall submit
to the Committees on Veterans' Affairs of the Senate and House
of Representatives on the super construction projects carried
out by the Secretary during such quarter. Each such report
shall include, for each such project--
(1) the budgetary and scheduling status of the
project, as of the last day of the quarter covered by
the report; and
(2) the actual cost and schedule variances of the
project, as of such day, compared to the planned cost
and schedules for the project.
(b) Super Construction Project Defined.--In this section, the
term ``super construction project'' has the meaning given such
term in section 8103(a)(4)(C) of this title.
* * * * * * *
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