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.

(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 ultility 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).

2).

(3) Equal opportunity. (See § 1-12.803

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

DISPUTES

Insert the clause prescribed in § 1-7.102-12, and in negotiated contracts add a paragraph (c), as follows:

(5) Officials not to benefit. (See § 1-7.102-17).

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

(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.

(7) Convict labor. (See § 1-12.204.) (8) Contract work hours and Safety Standards Act-overtime compensation. (See § 1-12.303).

(9) Disputes.

(10) Conflicts.

CONFLICTS

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 ire, 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

$ 1-4.410-6

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 (11) 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 authorized 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 (See Subcontracting Program. 1.1310-2(b)).

§ 1

(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

Postreview or periodic re

porting. Under governing regulations (41 CFR 101-11.404-2, Schedule 3, Procurement

and Supply Records), a copy of each exe-
cuted utility service procurement docu-
ment and supporting records is required
to be retained in the procuring agency's
file for a period of 6 years after comple-
tion of service. During the service period
and the ensuing 6 years, all such docu-
ments and records shall be subject to
such on-site postreview or periodic re-
porting as may be required by GSA. (See
also § 1-4.411 on prior review of certain
by executive
proposed procurements
agencies.)

§ 1-4.411 Prior review of certain pro-
posed procurements.

§ 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 § 14.411-3 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 expendi ture, 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 § 1-4411-3 below. If prior review is handled by GSA, it will follow the provisions set forth in § 1-4.411-2. 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]

§ 1-4.411-2 Prior review by GSA.

(a) Where a procuring agency refers the proposed procurements specified in § 1-4.411-1 (a) for prior review by GSA,

the guidelines set forth in § 1-4.411-4 will be observed by GSA.

(b) Where a proposed procurement is referred by a procuring agency for prior review by GSA, the agency is authorized to complete the negotiation and execution thereof if no comments are made by GSA to the agency within 20 regular working days (or within such lesser period as may be agreed upon where time is a critical factor) from the date the proposal, documents, and data relating to the proposed procurement are received by GSA for prior review. GSA will acknowledge the date of receipt of the referral from the agency.

§ 1-4.411-3 Alternative prior review by the procuring agency.

(a) Where a procuring agency. as of the effective date of the regulations in this subpart, has an established program and personnel technically qualified to deal with specialized utilities problems, adequate to accomplish its own prior review of the proposed utility procurements specified above in § 1-4.411-1(a), the agency shall notify the Administrator of General Services if it desires to continue its general responsibility for such prior review. This notification to the Administrator shall give the date, cite the implementing document, and summarize the review procedures relating to the agency's current program of prior review of proposed utility procurements. Continuation by the agency of its established general responsibility for prior review shall not be deemed to preclude referral of any specific case for prior review by GSA, whenever desired by the agency.

(b) Any agency having an established program as described in paragraph (a) of this section and continuing its established general responsibility for prior review shall provide by agency procedure that its review shall be exercised at technical and management levels sufficiently high to assure uniform application of the guidelines set forth in § 1-4.411-4. However, proposed procurement documents requiring prior review may be prepared for signature by any agency official acting within the scope of his delegated authority.

(c) A copy of each procurement document executed pursuant to § 1-4.4111(a) shall be retained in the procuring agency's file until the end of the retention period specified in § 1-4.410-6. In addition, if the procurement document

is an authorization under an applicable
GSA area wide contract, the agency shall
furnish or arrange to furnish an executed
counterpart or conformed copy to GSA
pursuant to § 1-4.407(c). All procure-
ment documents executed pursuant to
§ 1-4.411-1(a) shall be subject to such
on-site postreview or periodic reporting
as may be required by GSA.
§ 1-4.411-4

Guidelines for prior review.

Whether the prior review of the proposed procurements specified in § 1-4.411-1(a) is handled by GSA in accordance with § 1-4.411-2 or by the procuring agency in accordance with § 1-4.411-3, the guidelines set forth below in this § 1-4.411-4 shall be observed:

(a) Complete information relating to each proposed procurement shall be assembled by the procuring agency sufficiently in advance to permit full review. Such information shall include a technical description or specifications of the type and quality of the required services and a copy of any service proposal or proposed contract. If not included in the foregoing, a copy of the following additional documents and data shall be furnished wherever applicable:

(1) Copies of all applicable rate schedules, published or unpublished, currently used by available utility suppliers in billings to customers having service requirements similar to those of the procuring agency.

(2) The following data concerning quantity, quality, and time schedule of the required services: (1) Statement as to date initial service is required. (11) Technical description or specifications of the type and quality of the required services. (iii) Data on estimated maximum demand, average monthly consumption, and estimated annual cost for the first calendar year of full service. (iv) Known or estimated time schedule for growth to ultimate requirements. (v) Estimated ultimate maximum demand, ultimate average monthly consumption, and estimated annual cost of ultimate required services and facilities. (3) Identification of all available sources of supply and a statement as to the ability of each source to provide the required services. This should include the location and a description of each available supplier's facilities at the nearest point of service.

(4) The following data concerning proposed facilities and related charges

or costs: (1) Proposed refundable or nonrefundable connection charge, termination liability, or other facilities charge to be paid by the Government, if any, together with a description of the proposed supplier facilities and estimated construction costs entering into the determination of the proposed facilities charge. (ii) A statement by the supplier that such proposed facilities charge is not in excess of the charge that other customers would be required to pay for like facilities under similar circumstances. (iii) Description of the proposed Government-owned facilities and estimated construction costs. If any, needed to procure the required services.

(5) Identification of any unusual factors affecting the procurement.

(b) Approval of a proposed procurement specified in § 1-4.411-1(a), after prior review by GSA or the procuring agency, shall be based on written determinations and supporting findings meeting all the following criteria as a minimum in each case:

(1) The proposed supplier is either the sole source of the required service or has been selected after consideration of more than one source of supply as provided in § 1-4.406-1;

(2) The service to be provided is adequate in terms of quantity, quality, and time schedule to meet the procuring agency's needs;

(3) The selected rate schedule is the most advantageous of the rate schedules available to the agency in terms of economy, efficiency, or service:

(4) The proposed facilities charge. If any, is necessary to secure the required service. is based on current cost or pricing data. is reasonable in total amount. and may be certified for payment by the agency: and

(5) The proposed procurement fulfills the requirements of this FPR Subpart 1-4.4.

§ 1-4.412

Capital credits from REAfinanced cooperatives.

See § 101-36.3 for methods of processing capital credits issued by Rural Electrification

cooperatives.

Administration-financed

Subpart 1-4.6-Livestock Products SOURCE: The provisions of this Subpart 1-4.6 appear at 29 F.R. 10185, July 24, 1964. unless otherwise noted.

§ 1-4.600 Scope.

This subpart sets forth the policies and procedures applicable to the procurement of livestock products.

§ 1-4.601 General.

Public Law 85-765, as amended, commonly known as the Humane Slaughter Act of 1958 7 U.S.C. 1901-1906), provides certain restrictions on the procurement of livestock products by Federal agencies and instrumentalities. The Act states the policy of the United States to be that the slaughtering of livestock, and the handling of livestock in connection with slaughter, shall be carried out only by humane methods. In essence the Act prohibits the purchase by the Federal Government of livestock products produced or processed by any slaughterer or processor which in any of its plants (or in the plants of an af filiated slaughterer or processor) slaugh ters, or handles in connection with slaughter, livestock by any method other than humane. Further, the Act requires a supplier to make a statement concerning his eligibility under the Act to supply livestock products, the statement to be such that the maker will be subject to prosecution if the statement is false.

§ 1-4.602 Definition of livestock prod.

ucts.

"Livestock products” means any article of food, or any article intended for of capable of being used as food. for either humans or animals, which is derived or prepared. in whole or in part, from slaughtered cattle, calves, horses, mules sheep. swine, or goats. Livestock products do not include (a) supplies, the animal product portion of which is less than 5 percent by weight of the net unit weight, and (b) poultry.

§ 1-4.603 Exception.

The requirements of this Subpart 1-46 do not supply to contracts for livestock products, executed and to be performed outside the United States, its possessions. and Puerto Rico.

§ 1-4.604 Procedures.

(a) Proposed suppliers of livestock products shall be informed of the requirements of the Humane Slaughter Act and shall be required to furnish a statement of eligibility in accordance with this § 1-4.604.

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