Page images
PDF
EPUB

or other written requests for service. A standard utility supplier application form or similar document shall not be used, and if a Government purchase order or other written request for service will not be accepted by the utility supplier, the agency shall negotiate a formal bilateral written contract.

§ 1-4.410-2 Documentation of procure

ments from regulated utility suppliers. Utility services may be procured by executive agencies by a simple procurement document, such as one of those mentioned in § 1-4.410-1, rather than by a formal bilateral written contract, when the utility supplier's rates are fixed or adjusted by a Federal, State, or other public regulatory body, except that a formal bilateral written contract shall be used under one or more of the following circumstances:

(a) The utility service is available from more than one source of supply, in which case such service shall be procured as provided in § 1-4.406-1.

(b) The supplier requires the execution of a contract.

(c) The annual cost of the service to be procured is estimated by the using agency, at the time of initiation of the service or annual review of the expenditure, to be over $10,000.

(d) A proposed connection charge for connecting the using agency's facilities to the supplier's facilities, a termination liability for discontinuance of service or removal of facilities, the purchase cost or cumulative leasing cost of special facilities, or any other facilities charge to be paid by the agency (whether or not refundable) is estimated to exceed a total of $10,000.

(e) The executive agency concludes that a formal bilateral written contract is in the best interest of the Government. 131 FR 16417, Dec. 23, 1966, as amended at 40 FR 44140, Sept. 25, 1975)

when the utility supplier's rates are not fixed or adjusted by a Federal, State, or other public regulatory body, and one or more of the following circumstances exists:

(a) The utility service is available from more than one source of supply, in which case such service shall be procured as provided in § 1-4.406-1.

(b) The supplier requires the execution of a contract.

(c) The annual cost of the service to be procured is estimated by the using agency, at the time of initiation of the service or annual review of the expenditure, to be over $10,000.

(d) A proposed connection charge for connecting the using agency's facilities to the supplier's facilities, a termination liability for discontinu. ance of service or removal of facilities, the purchase cost or cumulative leasing cost of special facilities, or any other facilities charge to be paid by the agency (whether or not refundable) is estimated to exceed a total of $10,000.

(e) The executive agency concludes that a formal bilateral written contract is in the best interest of the Gov. ernment. (31 FR 16417, Dec. 23, 1966, as amended at 40 FR 44140, Sept. 25, 1975)

§ 1-4.410-4 Negotiations with utility sup

pliers. (a) In the event that a utility supplier declines, after appropriate initial request, to execute a formal bilateral written contract when required by this Subpart 1-4.4, the contracting officer ordinarily shall continue negotiations in an endeavor to obtain the supplier's consent to such a contract. However, after a definite and final refusal by the supplier to execute a contract, the agency may procure services by use of a Government purchase order or other written request for service. The agency shall immediately report the supplier's refusal to execute a contract to GSA, forwarding full documentation, including a copy of the record of negotiations. A full record of the negotiations with the supplier, including the reasons for the supplier's position, shall be retained in the procuring agency's file.

§ 1-4.410-3 Documentation of procure

ments from unregulated utility suppli

ers. Utility services shall be procured by executive agencies by a formal bilateral written contract, rather than by a simple procurement document, such as one of those mentioned in § 1-4.410-1,

CONFLICTS

(b) Representatives of GSA are available to provide assistance to executive agencies at any stage of negotiation of a proposed procurement in order to facilitate the consummation of a mutually satisfactory contract between the agency and the supplier. § 1-4.410-5 Uniform clauses for utility

service contracts. The commercial forms and provisions used by utility companies shall be used by agencies in procuring utility services required for their programs in accordance with the procedures prescribed in this subpart. However, all utility service contracts shall include the clauses prescribed by this section in the manner indicated. The clauses classified as "mandatory” shall be included in all contracts. Clauses which are classified “when applicable" shall be included in accordance with the individual requirements for the use of those clauses.

(a) Clauses that are mandatory.
(1) Definitions. (See § 1-7.102-1).

(2) Examination of records by Comptroller General. (See § 1-7.103-3).

(3) Equal opportunity. (See $ 112.803-2).

(4) Certification of nonsegregated facilities. (See 8 1-12.803-10.)

(5) Officials not to benefit. (See § 17.102-17).

(6) Covenant against contingent fees. (See § 1-1.503).

(7) Convict labor. (See § 1-12.204.)

(8) Contract work hours and Safety Standards Act-overtime compensation. (See § 1-12.303).

(9) Disputes.

To the extent of any inconsistency between the provisions of this contract and any schedule, rider, or exhibit incorporated in this contract by reference or other ie, or any of the Contractor's rules and regulations, the provisions of this contract shall control.

(11) Listing of employment openings. (See § 1-12.1102-2).

(12) Payment of interest on Contractors' claims. (See § 1-1.322).

(13) Utilization of Minority Business Enterprises. (See § 1-1.1310-2(a)).

(14) Utilization of Small Business Concerns. (See § 1-1.710-3(a)).

(15) Utilization of Labor Surplus Area Concerns. (See § 1-1.805-3(a)).

(16) Employment of the handicapped. (See $ 1-12.1304-1).

(17) Clean air and water. (See § 11.2302-2).

(b) Clauses to be used when applicable. The following clauses shall be used when applicable:

(1) Gratuities. The following clause should be used when the contract is for utility services to be used wholly or partly by one or more installations of the Armed Services.

GRATUITIES (a) The Government may, by written notice to the Contractor, terminate the right of the Contractor to proceed under this contract if it is found, after notice and hearing, by the Head of the agency or his duly authorized representative, that gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the Contractor, or any agent or representative of the Contractor, to any officer or employee of the Government with a view toward securing a contract or securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such contract; Provided, That the existence of the facts upon which the Head of the agency or his duly authorized representative makes such findings shall be in issue and may be reviewed in any competent court.

(b) In the event this contract is terminated as provided in paragraph (a) hereof, the Government shall be entitled (i) to pursue the same remedies against the Contractor as it could pursue in the event of a breach of the contract by the Contractor, and (ii) as a penalty in addition to any other damages to which it may be entitled by law, to exemplary damages in an amount (as determined by the Head of the agency or his duly author

DISPUTES Insert the clause prescribed in § 17.102-12, and in negotiated contracts add a paragraph (c), as follows:

(c) The provisions of (a) above shall not apply to disputes which are subject to the jurisdiction of a Federal, State, or other appropriate regulatory body. The provisions of (a) above shall also be subject to the requirements of the law with respect to the rendering of utility services and the collection of regulated rates.

(10) Conflicts.

of 6 years after completion of service. During the service period and the ensuing 6 years, all such documents and records shall be subject to such on-site post review or periodic reporting as may be required by GSA. (See also § 14.411 on prior review of certain proposed procurements by executive agencies.)

§ 1-4.411. Prior review of certain proposed

procurements.

ized representative) which shall be not less than three nor more than ten times the costs incurred by the Contractor in providing any such gratuities to any such officer or employee,

(c) The rights and remedies of the Government provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract. (2) Parties of interest.

PARTIES OF INTEREST This contract shall be binding upon and inure to the benefit of the successors, legal representatives, and assignees of the respective parties hereto.

(3) Privacy Act. (See 1-1.327-5(c)).

(4) Minority Business Enterprises Subcontracting Program. (See $ 11.1310-2(b)).

(5) Small Business Subcontracting Program. (See § 1-1.710-3(b)).

(6) Labor Surplus Area Subcontracting Program. (See § 1-1.805-3(b)).

(7) Cost accounting standards. Insert the three notices for solicitations as set forth in § 1-3.1203(a)(3), (h)(2), and (i)(2) in negotiated solicitations under the conditions contained in Subpart 1-3.12. Incorporate the required contract clauses set forth in $$ 1-3.1204-1 and 1-3.1204-2 in negotiated contracts under the conditions contained in Subpart 1-3.12. Note that as provided in § 1-3.1203, the notices and clauses shall not be used when the price is set by law or regulation or the contract is otherwise exempt under § 1-3.1203(a)(1) or (2).

(c) GSA has included the uniform mandatory clauses listed in paragraph (a) of this section in its GSA Form 1685, Supplemental Provisions (Utility Service Contract). Upon request, GSA will furnish a copy of this form to any agency for its guidance, use, or reproduction as an agency form. [40 FR 60020, 60030, Dec. 31, 1975) § 1-4.410-6 Post review or periodic report

§ 1-4.411-1 General.

(a) Proposed utility procurements by executive agencies, including proposed contracts, proposed authorizations under applicable GSA areawide contracts, and proposed memorandums of understanding for consolidated purchase, joint use, or cross-service by one agency for another agency, shall be subject to prior review by GSA or, in the alternative, by the procuring agency as described in § 1-4.411-3 below, before execution thereof, if either of the following circumstances applies:

(1) The annual cost of the service to be procured is estimated by the using agency, at the time of initiation of the service or annual review of the expenditure, to exceed $50,000; or

(2) A proposed connection charge, termination liability, or any other facilities charge to be paid by the agency (whether or not refundable) is estimated to exceed a total of $10,000.

(b) Proposed utility procurement specified in paragraph (a) of this section shall be referred to GSA for prior review unless the procuring agency has an established program and personnel technically qualified to deal with specialized utilities problems, as described in § 1-4.411-3 below. If prior review is handled by GSA, it will follow the provisions set forth in § 14.411-2. If, however, prior review is handled by the procuring agency, it shall follow the provisions set forth in § 1-4.411-3. In either event guidelines to be used in such prior reviews are set forth in § 1-4.411-4. [31 FR 16417, Dec. 23, 1966, as amended at 40 FR 44140, Sept. 25, 1975)

ing.

Under governing regulations (41 CFR 101-11.404-2, Schedule 3, Procurement and Supply Records), a copy of each executed utility service procurement document and supporting records is required to be retained in the procuring agency's file for a period

8 1-4.411-2 Prior review by GSA.

ing prior review may be prepared for (a) Where a procuring agency refers

signature by any agency official acting

within the scope of his delegated authe proposed procurements specified in § 1-4.411-1(a) for prior review by

thority.

(c) A copy of each procurement docGSA, the guidelines set forth in $ 1

ument executed pursuant to § 1-4.4114.411-4 will be observed by GSA.

1(a) shall be retained in the procuring (b) Where a proposed procurement

agency's file until the end of the reis referred by a procuring agency for

tention period specified in § 1-4.410-6. prior review by GSA, the agency is au

In addition, if the procurement docuthorized to complete the negotiation and execution thereof if no comments

ment is an authorization under an apare made by GSA to the agency within

plicable GSA areawide contract, the 20 regular working days (or within

agency shall furnish or arrange to fursuch lesser period as may be agreed

nish an executed counterpart or conupon where time is a critical factor)

formed copy to GSA pursuant to $ 1from the date the proposal, docu

4.407(c). All procurement documents ments, and data relating to the pro

executed pursuant to § 1-4.411-1(a)

shall be subject to such on-site postreposed procurement are received by GSA for prior review. GSA will ac

view or periodic reporting as may be knowledge the date of receipt of the

required by GSA. referral from the agency.

§ 1-4.411-4 Guidelines for prior review. § 1-4.411-3 Alternative prior review by the Whether the prior review of the proprocuring agency.

posed procurements specified in $ 1(a) Where a procuring agency, as of

4.411-1(a) is handled by GSA in acthe effective date of the regulations in

cordance with $ 1-4.411-2 or by the this subpart, has an established pro

procuring agency in accordance with gram and personnel technically quali

§ 1-4.411-3, the guidelines set forth fied to deal with specialized utilities below in this § 1-4.411-4 shall be obproblems, adequate to accomplish its served: own prior review of the proposed util

(a) Complete information relating to itv procurements specified above in each proposed procurement shall be 8 1-4.411-1(a), the agency shall notify assembled by the procuring agency the Administrator of General Services sufficiently in advance to permit full if it desires to continue its general re- review. Such information shall include sponsibility for such prior review. This a technical description or specificanotification to the Administrator shall tions of the type and quality of the regive the date, cite the implementing quired services and a copy of any serydocument, and summarize the review ice proposal or proposed contract. If

edures relating to the agency's not included in the foregoing, a copy current program of prior review of of the following additional documents proposed utility procurements. Con- and data shall be furnished wherever tinuation by the agency of its estab applicable: lished general responsibility for prior (1) Copies of all applicable rate review shall not be deemed to preclude schedules, published or unpublished, referral of any specific case for prior currently used by available utility supreview by GSA, whenever desired by pliers in billings to customers having the agency.

service requirements similar to those (b) Any agency having an estab of the procuring agency. lished program as described in para (2) The following data concerning graph (a) of this section and continu- quantity, quality, and time schedule of ing its established general responsibili. the required services: ty for prior review shall provide by (i) Statement as to date initial servagency procedure that its review shall ice is required. be exercised at technical and manage. (ii) Technical description or specifiment levels sufficiently high to assure cations of the type and quality of the uniform application of the guidelines required services. set forth in § 1-4.411-4. However, pro (iii) Data on estimated maximum posed procurement documents requir- demand, average monthly consump

pr

tion, and estimated annual cost for the (3) The selected rate schedule is the first calendar year of full service.

most advantageous of the rate sched(iv) Known or estimated time sched- ules available to the agency in terms ule for growth to ultimate require- of economy, efficiency, or service; ments.

(4) The proposed facilities charge, if (v) Estimated ultimate maximum any, is necessary to secure the redemand, ultimate average monthly quired service, is based on current cost consumption, and estimated annual or pricing data, is reasonable in total cost of ultimate required services and amount, and may be certified for payfacilities.

ment by the agency; and (3) Identification of all available

(5) The proposed procurement fulsources of supply and a statement as

fills the requirements of this FPR to the ability of each source to provide

Subpart 1-4.4. the required services. This should in

§ 1-4.412 Capital credits from REA-fi. clude the location and a description of each available supplier's facilities at

nanced cooperatives. the nearest point of service.

See § 101-36.3 for methods of proc(4) The following data concerning

essing capital credits issued by Rural proposed facilities and related charges

Electrification

Administration-fior costs:

nanced cooperatives. (i) Proposed refundable or nonrefun- (36 FR 13686, July 23, 1971) dable connection charge, termination liability, or other facilities charge to

Subpart 1-4.5 (Reserved) be paid by the Government, if any, together with a description of the pro

Subpart 1-4.6—Livestock Products posed supplier facilities and estimated construction costs entering into the

SOURCE: 29 FR 10185, July 24, 1964, unless determination of the proposed facili

otherwise noted. ties charge.

(ii) A statement by the supplier that $ 1-4.600 Scope. such proposed facilities charge is not

This subpart sets forth the policies in excess of the charge that other cus

and procedures applicable to the protomers would be required to pay for

curement of livestock products. like facilities under similar circumstances.

§ 1-4.601 General. (iii) Description of the proposed

Public Law 85-765, as amended, comGovernment-owned facilities and esti

monly known as the Humane Slaughmated construction costs, if any,

ter Act of 1958 (7 U.S.C. 1901-1906), needed to procure the required serv

provides certain restrictions on the ices.

procurement of livestock products by (5) Identification of any unusual fac Federal agencies and instrumentaltors affecting the procurement.

ities. The Act states the policy of the (b) Approval of a proposed procure United States to be that the slaughterment specified in § 1-4.411-1(a), after ing of livestock, and the handling of prior review by GSA or the procuring livestock in connection with slaughter, agency, shall be based on written de

shall be carried out only by humane terminations and supporting findings methods. In essence, the Act prohibits meeting all the following criteria as a the purchase by the Federal Governminimum in each case:

ment of livestock products produced (1) The proposed supplier is either or processed by any slaughterer or the sole source of the required service processor which in any of its plants or has been selected after considera- (or in the plants of an affiliated tion of more than one source of supply slaughterer or processor) slaughters, as provided in § 1-4.406-1;

or handles in connection with slaugh(2) The service to be provided is ade ter, livestock by any method other quate in terms of quantity, quality, than humane. Further, the Act reand time schedule to meet the procur- quires a supplier to make a statement ing agency's needs;

concerning his eligibility under the

« PreviousContinue »