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THE FAR
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2024: The FAR - Federal Acquisition Regulations, Part 41
2024: The FAR - Federal Acquisition Regulations, Part 41
2024: The FAR - Federal Acquisition Regulations, Part 41
2024: The FAR - Federal Acquisition Regulations, Part 41
2024 Webinar Series
THE FAR
FAR PART #41:
Acquisition Of Utility Services
SPEAKER: William Stowe
FIRM: Jackson Walker L.L.P.
EMAIL: wstowe@jw.com
PHONE: (713) 752-4360
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Part 41 – Acquisition of Utility Services
(1) Applicability
(2) Definitions – “Utility Services?” “Connection Charges?” “Termination
Liabilities?”
(3) Statutory and Delegated Authority
(4) Acquiring Utility Services
(5) Requests for Assistance from GSA
(6) Administration (Monthly and Annual Reviews, Rate Changes, Interventions)
(7) Solicitation Provisions and Contract Clauses
(8) Forms and Formats
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Part 41.102 – Applicability
(1) Applies to the “acquisition of utility services for the Government, including
connection charges and termination liabilities.” (FAR 41.102(a))
(2) Does NOT apply to:
• Utilities produced, distributed, or sold by another Federal agency (need to use
interagency agreements)
• Utility services obtained by purchase, exchange, or otherwise by a Federal
power or water marketing agency incident to that agency's marketing or
distribution program
• Cable television and telecommunications services;
• Acquisition of natural or manufactured gas when purchased as a commodity;
• Acquisition of utilities services in foreign countries;
(FAR 41.102(b))
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Part 41.102 – Applicability
Does NOT apply to (continued):
• Acquisition of rights in real property, acquisition of public utility facilities, and on-
site equipment needed for the facility's own distribution system, or
construction/maintenance of Government-owned equipment and real property; or
• Third party financed shared-savings projects authorized by 42 U.S.C. 8287.
However, agencies may utilize part 41 for any energy savings or purchased
utility service directly resulting from implementation of a third party financed
shared-savings project under 42 U.S.C. 8287 for periods not to exceed 25 years.
(FAR 41.102(b))
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Part 41.101 – Definitions
(1) Applies to the “acquisition of utility services for the Government, including
connection charges and termination liabilities.” (FAR 41.102(a))
(2) “Utility Services” means “a service such as furnishing electricity, natural or
manufactured gas, water, sewerage, thermal energy, chilled water, steam, hot water,
or high temperature hot water. The application of part 41 to other services (e.g.,
rubbish removal, snow removal) may be appropriate when the acquisition is not
subject to the 41 U.S.C. chapter 67, Service Contract Labor Standards (see 37.107).”
(FAR 41.101)
 Thus, the list is not all-inclusive!
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Part 41.101 – Definitions
(1) “Connection Charges” means “all nonrecurring costs, whether refundable or
nonrefundable, to be paid by the Government to the utility supplier for the
required connecting facilities, which are installed, owned, operated, and
maintained by the utility supplier (see Termination liability).” (FAR 41.101)
(2) “Termination Liabilities” means “a contingent Government obligation to pay a
utility supplier the unamortized portion of a connection charge and any other
applicable nonrefundable service charge as defined in the contract in the event
the Government terminates the contract before the cost of connection facilities
has been recovered by the utility supplier (see “Connection charge”).” (FAR
41.101).
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Part 41.103 – Statutory and Delegated Authority
(1) GSA is authorized to contract for utility services for periods not exceeding 10 years. Authorized to
prescribe policies/methods governing acquisition and supply of utility services for Federal agencies,
including related functions (e.g., appearing before Federal and state regulatory bodies). (FAR
41.103(a)(1); 40 U.S.C. § 501)
(2) DOD is authorized to acquire utility services for military facilities. (FAR 41.103(a)(2); 10 U.S.C. § 3201(a),
40 U.S.C. § 113(e)(3))
(3) DOE is authorized to acquire utility services. Authorized to enter into new contracts or modify existing
contracts for electric services for periods not exceeding 25 years for uranium enrichment installations.
(FAR 41.103(a)(3); 42 U.S.C. § 7251, et seq.; 42 U.S.C. § 2204)
(4) GSA has delegated its authority to enter into utility service contracts for periods not exceeding ten
years to DOD and DOE, and for connection charges only to the Dept. of Veteran Affairs, though
contracting must be consistent with Part 41. (FAR 41.103).
(5) Other agencies may send requests for delegations to GSA. Even if it delegates, GSA will, as necessary,
conduct review of acquisitions. (FAR 41.103(b).
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Part 41.103 – Statutory and Delegated Authority
(1) Requests for delegations: Other agencies must include certification from
agency’s Senior Procurement Executive that the agency has:
1. An established acquisition program;
2. Personnel technically qualified to deal with specialized utilities
problems; and
3. The ability to accomplish its own pre-award contract review.
(FAR 41.103(c))
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Part 41.2 – Acquiring Utility Services - Policy
(1) Acquisition General Policy: “Subject to paragraph (d) of this section, it is the policy of the
Federal Government that agencies obtain required utility services from sources of supply which
are most advantageous to the Government in terms of economy, efficiency, reliability, or
service.” (FAR 41.201(a))
(2) Caveats (paragraph (d)):
1. “Section 8093 of the Department of Defense Appropriations Act of 1988, Pub.L. 100–202,
provides that none of the funds appropriated by that Act or any other Act with respect to any
fiscal year by any department, agency, or instrumentality of the United States, may be used
for the purchase of electricity by the Government in any manner that is inconsistent with
state law governing the providing of electric utility service, including state utility commission
rulings and electric utility franchises or service territories established pursuant to state
statute, state regulation, or state-approved territorial agreements.” (FAR 41.201(d)(1))
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Part 41.2 – Acquiring Utility Services - Policy
2. Caveats (continued):
Note: The court in Baltimore Gas & Elec. Co. v. United States, 133 F. Supp. 2d 721,
741 (D. Md. 2001) held that FAR 41.201(d)(1)’s provision relating to adherence to
state law does not apply to the purchase of electricity distribution services, as opposed
to the purchase of the commodity of electricity.
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Part 41.2 – Acquiring Utility Services - Policy
2. Caveats (continued):
3. The Act does not preclude:
a) Agencies from entering into a contract pursuant to 42 U.S.C. 8287 (pertaining to the subject of shared
energy savings including cogeneration);
b) The Secretary of a military department from entering into a contract pursuant to 10 U.S.C. 2922a (which
pertains to contracts for energy or fuel for military installations including the provision and operation of
energy production facilities); or
c) The Secretary of a military department from purchasing electricity from any provider when the utility or
utilities having applicable state-approved franchise or other service authorizations are found by the
Secretary to be unwilling or unable to meet unusual standards for service reliability that are necessary
for purposes of national defense.
(FAR 41.201(d)(2))
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Part 41.2 – Acquiring Utility Services - Policy
(1) Caveats (continued):
3. Further, Agencies may:
a) Consistent with applicable state law, enter into contracts for the purchase or transfer of electricity to the
agency by a non utility, including a qualifying facility under the Public Utility Regulatory Policies Act of
1978;
b) Enter into an interagency agreement, pursuant to FARs 41.206 and 17.5, with a Federal power
marketing agency or the Tennessee Valley Authority for the transfer of electric power to the agency;
and
c) Enter into a contract with an electric utility under the authority or tariffs of FERC.
(FAR 41.201(d)(3))
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Part 41.2 – Acquiring Utility Services - Policy
(1) Other Policies:
• “Except for acquisitions at or below the simplified acquisition threshold, agencies shall acquire
utility services by a bilateral written contract, which must include the clauses required by
41.501, regardless of whether rates or terms and conditions of service are fixed or adjusted by
a regulatory body. Agencies may not use the utility supplier's forms and clauses to avoid the
inclusion of provisions and clauses required by 41.501 or by statute. (See 41.202(c) for
procedures to be used when the supplier refuses to execute a written contract.)” (FAR
41.201(b))
• Simplified acquisition threshold (as of June 11, 2024) is $250,000 (with some variations
depending on circumstance)
• Cannot use supplier’s forms to avoid required clauses!
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Part 41.2 – Acquiring Utility Services - Policy
(1) Other Policies:
• Counter-intuitive policies relating to competition. Is this the FAR?!
• “Prior to acquiring electric utility services on a competitive basis, the contracting officer shall determine, with the
advice of legal counsel, by a market survey or any other appropriate means, e.g. consultation with the state
agency responsible for regulating public utilities, that such competition would not be inconsistent with state law
governing the provision of electric utility service, including state utility commission rulings and electric utility
franchises or service territories established pursuant to state statute, state regulation, or state-approved
territorial agreements. Proposals from alternative electric suppliers shall provide a representation that service
can be provided in a manner consistent with section 8093 of Public Law 100–202 (see 41.201(d)).” (FAR
41.201(e))
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Part 41.2 – Acquiring Utility Services - Procedures
(1) Acquisition Procedure: Before executing, contracting officer must comply with parts 6 and 7 and 41.201 (d)
and (e) [discussed previously]. In accordance with parts 6 and 7, agencies shall conduct market surveys and
perform acquisition planning in order to promote and provide for full and open competition “provided that the
contracting officer determines that any resultant contract would not be inconsistent with applicable state law
governing the provision of electric utility services.” (FAR 41.202(a))
(2) What does market survey entail? “If competition for an entire utility service is not available, the market survey
may be used to determine the availability of competitive sources for certain portions of the requirement. The
scope of the term “entire utility service” includes the provision of the utility service capacity, energy, water,
sewage, transportation, standby or back-up service, transmission and/or distribution service, quality assurance,
system reliability, system operation and maintenance, metering, and billing.” (Id.)
--> Market survey includes considering (FAR 41.202(b)):,
(1) GSA areawide contracts (see FAR 41.204);
2) Separate contracts (see FAR 41.205); and
(3) Interagency agreements (see FAR 41.206).
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Part 41.2 – Acquiring Utility Services - Procedures
(1) What happens when a utility supplier refuses to execute a tendered contract?
• The agency “shall obtain a written definite and final refusal signed by a corporate officer or other
responsible official of the supplier (or if unobtainable, document any unwritten refusal), and transmit this
document, along with statements of the reasons for the refusal and the record of negotiations, to GSA at
the address specified at 41.301(a).” (FAR 41.202(c)) “Unless urgent and compelling circumstances exist,
the contracting officer shall notify GSA prior to acquiring utility services without executing a tendered
contract.” (Id.)
• “After such notification, the agency may proceed with the acquisition and pay for the utility service
under the provisions of 31 U.S.C. 1501(a)(8)—
i. By issuing a purchase order in accordance with 13.302; or
ii. By ordering the necessary utility service and paying for it upon the presentation of an invoice,
provided that a determination is approved by the head of the contracting activity that a written
contract cannot be obtained and that the issuance of a purchase order is not feasible.” (FAR
41.202(c))
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Part 41.2 – Acquiring Utility Services - Procedures
(1) What happens when a utility supplier refuses to execute a tendered contract? (continued)
• Where there is no bilateral written contract, the contracting officer must establish a “utility history file” on
each acquisition of utility service provided by a contractor, which shall contain, in addition to applicable
documents in 4.803, various information set forth in FAR 4.202(d).
• Contracting officer must continue (annually) to attempt to execute a bilateral written contract and
document this. (FAR 41.202(e)) Must also notify GSA (Id.)
• Bottom line: possible that FAR clauses may not be included! Is this the FAR?!
• But NO SUBTERFUGE!
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Part 41.2 – Acquiring Utility Services - GSA Areawide Contracts, Separate Contracts, Interagency
Agreements
(1) GSA Areawide Contracts
• Entered into by GSA for use by Federal agencies. They provide a pre-established contractual vehicle for
ordering utility services. (FAR 41.204(a))
• Provide for ordering utility service at rates approved and/or established by a regulatory body and
published in a tariff or rate schedule. (FAR 41.204(b)(1)) “However, agencies are permitted to negotiate
other rates and terms and conditions of service with the supplier.” (Id.) “Rates other than those published
may require the approval of the regulatory body.” (Id.)
• List of areawide contracts available at GSA regional offices and/or GSA’s Energy Division
(www.gsa.gov/energy; Email: energy@gsa.gov).
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Part 41.2 – Acquiring Utility Services - GSA Areawide Contracts, Separate Contracts, Interagency
Agreements
(1) GSA Areawide Contracts (continued)
• Mandatory with exceptions. “Any Federal agency having a requirement for utility services within an area
covered by an areawide contract shall acquire services under that areawide contract unless—
1. Service is available from more than one supplier; or
2. The head of the contracting activity or designee otherwise determines that use of the areawide
contract is not advantageous to the Government. If service is available from more than one supplier,
service shall be acquired using competitive acquisition procedures (see 41.202(a)). The determination
required by paragraph (c)(1)(ii) of this section shall be documented in the contract file with an
information copy furnished to GSA at the address in 41.301(a).”
(FAR 41.204(c)(1))
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Part 41.2 – Acquiring Utility Services - GSA Areawide Contracts, Separate Contracts, Interagency
Agreements
(1) GSA Areawide Contracts (continued)
• Nuts and bolts: “Each areawide contract includes an authorization form for ordering service, connection,
disconnection, or change in service. Upon execution of an authorization by the contracting officer and utility
supplier, the utility supplier is required to furnish services, without further negotiation, at the current,
applicable published or unpublished rates, unless other rates, and/or terms and conditions are separately
negotiated by the Federal agency with the supplier.” (FAR 41.204(c)(2))
• Contracting officer must “execute the Authorization, and attach it to a Standard Form (SF) 26,
Award/Contract, along with any modifications such as connection charges, special facilities, or service
arrangements.” (FAR 41.204(c)(3)) Find forms at www.gsa.gov.
• Specific fiscal, operational, and administrative requirements, applicable rates, technical information, and
maps or drawings of delivery points, etc. must be incorporated. (FAR 41.204(c)(3))
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Part 41.2 – Acquiring Utility Services - GSA Areawide Contracts, Separate Contracts, Interagency
Agreements
2. Separate Contracts
• “In the absence of an areawide contract or interagency agreement (see 41.206), agencies shall acquire
utility services by separate contract . . . .” (FAR 41.205(a))
• Contracting officer must document the contract file with various required information (FAR 41.205(b))
• Contract between 1 and 10 years “may be justified, and is usually required, where any of the following
circumstances exist:
1. The Government will obtain lower rates, larger discounts, or more favorable terms and conditions of
service;
2. A proposed connection charge, termination liability, or any other facilities charge to be paid by the
Federal Government will be reduced or eliminated; or
3. The utility service supplier refuses to render the desired service except under a contract exceeding
a 1–year period.” (FAR 41.205(d))
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Part 41.2 – Acquiring Utility Services - GSA Areawide Contracts, Separate Contracts, Interagency
Agreements
3. Interagency agreements
• “Agencies shall use interagency agreements (e.g., consolidated purchase, joint use, or cross-service
agreements) when acquiring utility service or facilities from other Government agencies and shall comply
with the policies and procedures at 17.502–2, The Economy Act.” (FAR 41.206)
• Must use formal agreement. Requires a determination and findings. Consult FAR 17.502-2 for more
information.
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Part 41.3 – Requests for Assistance from GSA
1. Upon request, GSA will “provide technical and acquisition assistance, or will delegate its contracting authority
for the furnishing of the services described in this part for any Federal agency, mixed-ownership Government
corporation, the District of Columbia, the Senate, the House of Representatives, or the Architect of the Capitol
and any activity under the Architect's direction.” (FAR 41.203(a))
2. Must be submitted to the appropriate office: requests for delegations of authority from GSA, or for assistance
with a proposed contract, must be submitted to the appropriate GSA regional office where service is required.
(FAR 41.301(a))
3. Must be timely. Requests for contracting assistance must be sent not later than 120 days prior to the date new
services are required to commence or an existing contract will expire. (FAR 41.301(b)) The request must
contain a variety of information set forth in FAR 41.301(b), (c), (d).
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Part 41.4 – Administration (Monthly and Annual Reviews, Rate Changes, Interventions)
1. Monthly and Annual Reviews:
• Agencies must review utility service invoices on a monthly basis. (FAR 41.401) Must review all utility
accounts, with annual values exceeding the simplified acquisition threshold, on an annual basis. (Id.)
“Annual reviews of accounts with annual values at or below the simplified acquisition threshold shall be
conducted when deemed advantageous to the Government.” (Id.)
• Different purposes: Purpose of the monthly review is to ensure the accuracy of utility service invoices. The
purpose of the annual review is “to ensure that the utility supplier is furnishing the services to each facility
under the utility's most economical, applicable rate and to examine competitive markets for more
advantageous service offerings.” (Id.) “The annual review shall be based upon the facility's usage,
conditions and characteristics of service at each individual delivery point for the most recent 12 months.”
(Id.) “If a more advantageous rate is appropriate, the Federal agency shall request the supplier to make
such rate change immediately.” (Id.)
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Part 41.4 – Administration (Monthly and Annual Reviews, Rate Changes, Interventions)
2. Rate changes and regulatory intervention:
• Where changes are proposed to rates or terms and conditions of service, “the agency shall promptly
determine whether the proposed change is reasonable, justified, and not discriminatory.” (FAR 41.402(a))
• If the change may be of interest “to other Federal agencies, and intervention before a regulatory body is
considered justified, the matter shall be referred to GSA.” (FAR 41.402(b)) “The agency may request from
GSA a delegation of authority for the agency to intervene on behalf of the consumer interests of the
Federal executive agencies (see 41.301).” (FAR 41.402(b))
• If a regulatory body approves a rate change, “any rate change shall be made a part of the contract by
unilateral contract modification or otherwise documented in accordance with agency procedures.” (FAR
41.402, 52.241-7) “The approved applicable rate shall be effective on the date determined by the
regulatory body and resulting rates and charges shall be paid promptly to avoid late payment provisions.
Copies of the modification containing the approved rate change shall be sent to the agency's paying office
or office responsible for verifying billed amounts (see 41.401).” (FAR 41.402(c))
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Part 41.4 – Administration (Monthly and Annual Reviews, Rate Changes, Interventions)
2. Rate changes and regulatory intervention (continued):
• Where utility supplier is not regulated and the rates, terms, and conditions of service are subject to
negotiation pursuant to the clause at 52.241–8 (“Change in Rates or Terms and Conditions of Service for
Unregulated Services), “any rate change shall be made a part of the contract by contract modification, with
copies sent to the agency's paying office or office responsible for verifying billed amounts.” (FAR
41.402(d))
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Part 41.5 – Solicitation Provisions and Contract Clauses
1. Contracting officer shall insert in solicitations and contracts for utility services the following clauses or
clauses that are substantially the same (FAR 41.501(b)-(c)):
• FAR 52.241-1 (Electric Service Territory Compliance Representation) when proposals from alternative
electric suppliers are sought;
• FAR 52.241–2, Order of Precedence—Utilities;
• FAR 52.241–3, Scope and Duration of Contract;
• FAR 52.241–4, Change in Class of Service;
• FAR 52.241–5, Contractor's Facilities; and
• FAR 52.241–6, Service Provisions.
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Part 41.5 – Solicitation Provisions and Contract Clauses
2. Contracting officer shall insert in solicitations and contracts for utility services the following clauses or
clauses that are substantially the same under the prescribed conditions (FAR 41.501(d)):
i. FAR 52.241–7, Change in Rates or Terms and Conditions of Service for Regulated Services, when the
utility services are subject to a regulatory body. [But see exceptions]
ii. FAR 52.241–8, Change in Rates or Terms and Conditions of Service for Unregulated Services, when the
utility services are not subject to a regulatory body.
iii. FAR 52.241–9, Connection Charge, when a refundable connection charge is required to be paid by the
Government to compensate the contractor for furnishing additional facilities necessary to supply service.
[But see Alternates]
iv. FAR 52.241–10, Termination Liability, when payment is to be made to the contractor upon termination of
service in conjunction with or in lieu of a connection charge upon completion of the facilities.
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Part 41.5 – Solicitation Provisions and Contract Clauses
2. Contracting officer shall insert in solicitations and contracts for utility services the following clauses or
clauses that are substantially the same under the prescribed conditions (FAR 41.501(d)):
v. FAR 52.241–11, Multiple Service Locations (as defined in 41.101), when providing for possible
alternative service locations, except under areawide contracts, is required.
vi. FAR 52.241–12, Nonrefundable, Nonrecurring Service Charge, when the Government is required to pay
a nonrefundable, nonrecurring membership fee, a charge for initiation of service, or a contribution for the
cost of facilities construction. The Government may provide for inclusion of such agreed amount or fee
as a part of the connection charge, a part of the initial payment for services, or as periodic payments to
fulfill the Government's obligation.
vii. 52.241–13, Capital Credits, when the Federal Government is a member of a cooperative and is entitled
to capital credits, consistent with the bylaws and governing documents of the cooperative.
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J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
Part 41.5 – Solicitation Provisions and Contract Clauses
2. Select clauses:
FAR 52.241–7, Change in Rates or Terms and Conditions of Service for Regulated Services, when the utility
services are subject to a regulatory body.
(a) This clause applies to the extent services furnished under this contract are subject to regulation by a regulatory body. The Contractor agrees to give
*__________ written notice of (1) the filing of an application for change in rates or terms and conditions of service concurrently with the filing of the
application and (2) any changes pending with the regulatory body as of the date of contract award. Such notice shall fully describe the proposed change. If,
during the term of this contract, the regulatory body having jurisdiction approves any changes, the Contractor shall forward to the Contracting Officer a copy
of such changes within 15 days after the effective date thereof. The Contractor agrees to continue furnishing service under this contract in accordance with
the amended tariff, and the Government agrees to pay for such service at the higher or lower rates as of the date when such rates are made effective.
(b) The Contractor agrees that throughout the life of this contract the applicable published and unpublished rate schedule(s) shall not be in excess of the
lowest cost published and unpublished rate schedule(s) available to any other customers of the same class under similar conditions of use and
service.
(c) In the event that the regulatory body promulgates any regulation concerning matters other than rates which affects this contract, the Contractor
shall immediately provide a copy to the Contracting Officer. The Government shall not be bound to accept any new regulation inconsistent with
Federal laws or regulations.
(d) (d) Any changes to rates or terms and conditions of service shall be made a part of this contract by the issuance of a contract modification unless otherwise
specified in the contract. The effective date of the change shall be the effective date by the regulatory body. Any factors not governed by the regulatory
body will have an effective date as agreed to by the parties.
2024 Webinar Series - THE FAR
J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
Part 41.5 – Solicitation Provisions and Contract Clauses
2. Select clauses (continued):
FAR 52.241–7, Change in Rates or Terms and Conditions of Service for Regulated Services, when the utility
services are subject to a regulatory body.
Note: State regulators may have additional notice requirements!
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J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
Parts 41.6, 41.7 – Forms and Formats
1. Forms:
• Unless using an areawide contract, a purchase order, or an interagency agreement, agencies must use
the Standard Form (SF) 33, Solicitation, Offer and Award; SF 26, Award/Contract; or SF 1447,
Solicitation/Contract. (FAR 41.601(a))
• Contracting officer must incorporate the applicable rate schedule in each contract, purchase order or
modification. (FAR 41.601(b))
2. Formats:
• Obtain specification formats for the following utility services from GSA: electric service; water service;
steam service; sewage service; natural gas service. (FAR 41.701(a))
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Parts 41.6, 41.7 – Forms and Formats
2. Formats (continued):
• Contracting officers may modify the specification format and “attach technical items, details on
Government ownership of equipment and real property and maintenance or repair obligations, maps or
drawings of delivery points, and other information deemed necessary to fully define the service
conditions.” (FAR 41.701(b))
• Specifications and attachments must be inserted in Section C of the utility service solicitation and contract.
(FAR 41.701(c))
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SPEAKER: William Stowe
FIRM: Jackson Walker L.L.P.
EMAIL: wstowe@jw.com
PHONE: (713) 752-4360
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2024 Webinar Series
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The FAR:
Federal Acquisition Regulations
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2024: The FAR - Federal Acquisition Regulations, Part 41

  • 1. 2024 Webinar Series The FAR: Federal Acquisition Regulations Understand the rules of the federal contracting game - and play to win! J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 2. 2024 Webinar Series THE FAR ABOUT THE SERIES:  We’ll cover each PART of THE FAR  Typically held Wednesdays and Fridays, 12pm  Complimentary  Recorded  Video Posted on YouTube https://www.youtube.com/@jenniferschaus/videos  PPT Posted on Slideshare.net  Sponsor/Advertising Options Available J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 3. 2024 Webinar Series THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 4. 2024 Webinar Series THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 5. 2024 Webinar Series THE FAR ABOUT US:  Services for FED GOV CONTRACTORS:  Washington DC based;  Professional services for established gov cons;  Market Analysis to GSA Schedules;  Contract Administration, etc. J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 6. 2024 Webinar Series THE FAR ABOUT US:  Services for THOSE SELLING TO FED CONTRACTORS:  Newsletter Advertising;  Webinar Advertising;  Social Media Advertising;  Event Sponsorship;  Ask for our MEDIA KIT! J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 7. Marketing TO Federal Contractors? Digital Advertising Offer 30,600+ Newsletter Subscribers 90% Federal Contractors 23% - 32% Open Rates (12 Mo Ave) 4% - 12% Click Rates (12 Mo Ave) -------------------------------- hello@JenniferSchaus.com for details
  • 9. US SENATE – & - HOUSE OF REPRESENTATIVES Scheduled Hearings
  • 11. VA APEX ACCELERATOR - 2024 TRAINING EVENTS THURSDAY, JUNE 13th 11.30am-1.30pm GSA Schedules: Requirements, Proposal Prep and – What’s Next REGISTER: https://virginiaptac.ecenterdirect.com/events/4448 TUESDAY, AUGUST 6th 1pm-3pm Marketing 101 For Federal Contractors: Attract The Primes, Attract The Government REGISTER: https://virginiaptac.ecenterdirect.com/events/4452 TUESDAY, NOVEMBER 12th 9.30am-11.30am GSA Schedules: Requirements, Proposal Prep and – What’s Next REGISTER: https://virginiaptac.ecenterdirect.com/events/4456
  • 12. MD APEX ACCELERATOR - 2024 TRAINING EVENTS THURSDAY, JUL 25th 2024 10am-11am Kickstart Your Federal Marketing REGISTER: https://mdptac.ecenterdirect.com/events/15242 THURSDAY, DEC 5th 2024 10am-11am GSA Schedules - What You Need To Know REGISTER: https://mdptac.ecenterdirect.com/events/15244
  • 13. Our Sponsored Content Webinars Palmetier Law – Part 1 of 2 - Thursday JUNE 20 SBIR / STTR Unleashing Small Business Innovations: A Path To Growth & Prosperity https://attendee.gotowebinar.com/register/819675359822707801 Palmetier Law – Part 2 of 2 Thursday JUNE 27 SBIR / STTR Unleashing Small Business Innovations: A Path To Growth & Prosperity https://attendee.gotowebinar.com/register/4351522212519190620
  • 14. Federal Government Contractors SUMMER SOIREE Monday June 24th John F Kennedy Center 530PM - 730PM Meet The FED GOV & Network with Contractors! TICKETS REQUIRED IN ADVANCE https://govsummer2024.eventbrite.com
  • 15. SPONSORS – GOVERNMENT – IN-KIND SPONSORS Federal Government Contractors - SUMMER SOIREE Monday June 24th - John F Kennedy Ctr - 530PM - 730PM SPONSORSHIPS OPPORTUNITIES AVAILABLE
  • 16. Federal Government Contractors SUMMER SOIREE Monday June 24th - John F Kennedy Ctr - 530PM - 730PM SPONSORSHIPS OPPORTUNITIES AVAILABLE MEET THE GOVERNMENT
  • 17. 2024 Webinar Series - THE FAR THANK YOU TO OUR WEBINAR SPONSORS J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 18. The FAR – Federal Acquisition Regulations - WEBINAR SERIES 2024 JSchaus & Associates – Washington DC – hello@JenniferSchaus.com
  • 19.  Full training calendar: virginiaptac.org & useful links  Register for free counseling: https://virginiaptac.org/services/counseling/  Your “one stop” shop for Government Contracting assistance  Reach us at apex@gmu.edu or 703-277-7750 This APEX Accelerator is funded in part through a cooperative agreement with the Department Next Steps?
  • 24. 2024 Webinar Series THE FAR FAR PART #41: Acquisition Of Utility Services SPEAKER: William Stowe FIRM: Jackson Walker L.L.P. EMAIL: wstowe@jw.com PHONE: (713) 752-4360 J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 25. 2024 Webinar Series - THE FAR Part 41 – Acquisition of Utility Services (1) Applicability (2) Definitions – “Utility Services?” “Connection Charges?” “Termination Liabilities?” (3) Statutory and Delegated Authority (4) Acquiring Utility Services (5) Requests for Assistance from GSA (6) Administration (Monthly and Annual Reviews, Rate Changes, Interventions) (7) Solicitation Provisions and Contract Clauses (8) Forms and Formats J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 26. 2024 Webinar Series - THE FAR Part 41.102 – Applicability (1) Applies to the “acquisition of utility services for the Government, including connection charges and termination liabilities.” (FAR 41.102(a)) (2) Does NOT apply to: • Utilities produced, distributed, or sold by another Federal agency (need to use interagency agreements) • Utility services obtained by purchase, exchange, or otherwise by a Federal power or water marketing agency incident to that agency's marketing or distribution program • Cable television and telecommunications services; • Acquisition of natural or manufactured gas when purchased as a commodity; • Acquisition of utilities services in foreign countries; (FAR 41.102(b)) J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 27. 2024 Webinar Series - THE FAR Part 41.102 – Applicability Does NOT apply to (continued): • Acquisition of rights in real property, acquisition of public utility facilities, and on- site equipment needed for the facility's own distribution system, or construction/maintenance of Government-owned equipment and real property; or • Third party financed shared-savings projects authorized by 42 U.S.C. 8287. However, agencies may utilize part 41 for any energy savings or purchased utility service directly resulting from implementation of a third party financed shared-savings project under 42 U.S.C. 8287 for periods not to exceed 25 years. (FAR 41.102(b)) J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 28. 2024 Webinar Series - THE FAR Part 41.101 – Definitions (1) Applies to the “acquisition of utility services for the Government, including connection charges and termination liabilities.” (FAR 41.102(a)) (2) “Utility Services” means “a service such as furnishing electricity, natural or manufactured gas, water, sewerage, thermal energy, chilled water, steam, hot water, or high temperature hot water. The application of part 41 to other services (e.g., rubbish removal, snow removal) may be appropriate when the acquisition is not subject to the 41 U.S.C. chapter 67, Service Contract Labor Standards (see 37.107).” (FAR 41.101)  Thus, the list is not all-inclusive! J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 29. 2024 Webinar Series - THE FAR Part 41.101 – Definitions (1) “Connection Charges” means “all nonrecurring costs, whether refundable or nonrefundable, to be paid by the Government to the utility supplier for the required connecting facilities, which are installed, owned, operated, and maintained by the utility supplier (see Termination liability).” (FAR 41.101) (2) “Termination Liabilities” means “a contingent Government obligation to pay a utility supplier the unamortized portion of a connection charge and any other applicable nonrefundable service charge as defined in the contract in the event the Government terminates the contract before the cost of connection facilities has been recovered by the utility supplier (see “Connection charge”).” (FAR 41.101). J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 30. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.103 – Statutory and Delegated Authority (1) GSA is authorized to contract for utility services for periods not exceeding 10 years. Authorized to prescribe policies/methods governing acquisition and supply of utility services for Federal agencies, including related functions (e.g., appearing before Federal and state regulatory bodies). (FAR 41.103(a)(1); 40 U.S.C. § 501) (2) DOD is authorized to acquire utility services for military facilities. (FAR 41.103(a)(2); 10 U.S.C. § 3201(a), 40 U.S.C. § 113(e)(3)) (3) DOE is authorized to acquire utility services. Authorized to enter into new contracts or modify existing contracts for electric services for periods not exceeding 25 years for uranium enrichment installations. (FAR 41.103(a)(3); 42 U.S.C. § 7251, et seq.; 42 U.S.C. § 2204) (4) GSA has delegated its authority to enter into utility service contracts for periods not exceeding ten years to DOD and DOE, and for connection charges only to the Dept. of Veteran Affairs, though contracting must be consistent with Part 41. (FAR 41.103). (5) Other agencies may send requests for delegations to GSA. Even if it delegates, GSA will, as necessary, conduct review of acquisitions. (FAR 41.103(b).
  • 31. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.103 – Statutory and Delegated Authority (1) Requests for delegations: Other agencies must include certification from agency’s Senior Procurement Executive that the agency has: 1. An established acquisition program; 2. Personnel technically qualified to deal with specialized utilities problems; and 3. The ability to accomplish its own pre-award contract review. (FAR 41.103(c))
  • 32. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - Policy (1) Acquisition General Policy: “Subject to paragraph (d) of this section, it is the policy of the Federal Government that agencies obtain required utility services from sources of supply which are most advantageous to the Government in terms of economy, efficiency, reliability, or service.” (FAR 41.201(a)) (2) Caveats (paragraph (d)): 1. “Section 8093 of the Department of Defense Appropriations Act of 1988, Pub.L. 100–202, provides that none of the funds appropriated by that Act or any other Act with respect to any fiscal year by any department, agency, or instrumentality of the United States, may be used for the purchase of electricity by the Government in any manner that is inconsistent with state law governing the providing of electric utility service, including state utility commission rulings and electric utility franchises or service territories established pursuant to state statute, state regulation, or state-approved territorial agreements.” (FAR 41.201(d)(1))
  • 33. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - Policy 2. Caveats (continued): Note: The court in Baltimore Gas & Elec. Co. v. United States, 133 F. Supp. 2d 721, 741 (D. Md. 2001) held that FAR 41.201(d)(1)’s provision relating to adherence to state law does not apply to the purchase of electricity distribution services, as opposed to the purchase of the commodity of electricity.
  • 34. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - Policy 2. Caveats (continued): 3. The Act does not preclude: a) Agencies from entering into a contract pursuant to 42 U.S.C. 8287 (pertaining to the subject of shared energy savings including cogeneration); b) The Secretary of a military department from entering into a contract pursuant to 10 U.S.C. 2922a (which pertains to contracts for energy or fuel for military installations including the provision and operation of energy production facilities); or c) The Secretary of a military department from purchasing electricity from any provider when the utility or utilities having applicable state-approved franchise or other service authorizations are found by the Secretary to be unwilling or unable to meet unusual standards for service reliability that are necessary for purposes of national defense. (FAR 41.201(d)(2))
  • 35. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - Policy (1) Caveats (continued): 3. Further, Agencies may: a) Consistent with applicable state law, enter into contracts for the purchase or transfer of electricity to the agency by a non utility, including a qualifying facility under the Public Utility Regulatory Policies Act of 1978; b) Enter into an interagency agreement, pursuant to FARs 41.206 and 17.5, with a Federal power marketing agency or the Tennessee Valley Authority for the transfer of electric power to the agency; and c) Enter into a contract with an electric utility under the authority or tariffs of FERC. (FAR 41.201(d)(3))
  • 36. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - Policy (1) Other Policies: • “Except for acquisitions at or below the simplified acquisition threshold, agencies shall acquire utility services by a bilateral written contract, which must include the clauses required by 41.501, regardless of whether rates or terms and conditions of service are fixed or adjusted by a regulatory body. Agencies may not use the utility supplier's forms and clauses to avoid the inclusion of provisions and clauses required by 41.501 or by statute. (See 41.202(c) for procedures to be used when the supplier refuses to execute a written contract.)” (FAR 41.201(b)) • Simplified acquisition threshold (as of June 11, 2024) is $250,000 (with some variations depending on circumstance) • Cannot use supplier’s forms to avoid required clauses!
  • 37. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - Policy (1) Other Policies: • Counter-intuitive policies relating to competition. Is this the FAR?! • “Prior to acquiring electric utility services on a competitive basis, the contracting officer shall determine, with the advice of legal counsel, by a market survey or any other appropriate means, e.g. consultation with the state agency responsible for regulating public utilities, that such competition would not be inconsistent with state law governing the provision of electric utility service, including state utility commission rulings and electric utility franchises or service territories established pursuant to state statute, state regulation, or state-approved territorial agreements. Proposals from alternative electric suppliers shall provide a representation that service can be provided in a manner consistent with section 8093 of Public Law 100–202 (see 41.201(d)).” (FAR 41.201(e))
  • 38. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - Procedures (1) Acquisition Procedure: Before executing, contracting officer must comply with parts 6 and 7 and 41.201 (d) and (e) [discussed previously]. In accordance with parts 6 and 7, agencies shall conduct market surveys and perform acquisition planning in order to promote and provide for full and open competition “provided that the contracting officer determines that any resultant contract would not be inconsistent with applicable state law governing the provision of electric utility services.” (FAR 41.202(a)) (2) What does market survey entail? “If competition for an entire utility service is not available, the market survey may be used to determine the availability of competitive sources for certain portions of the requirement. The scope of the term “entire utility service” includes the provision of the utility service capacity, energy, water, sewage, transportation, standby or back-up service, transmission and/or distribution service, quality assurance, system reliability, system operation and maintenance, metering, and billing.” (Id.) --> Market survey includes considering (FAR 41.202(b)):, (1) GSA areawide contracts (see FAR 41.204); 2) Separate contracts (see FAR 41.205); and (3) Interagency agreements (see FAR 41.206).
  • 39. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - Procedures (1) What happens when a utility supplier refuses to execute a tendered contract? • The agency “shall obtain a written definite and final refusal signed by a corporate officer or other responsible official of the supplier (or if unobtainable, document any unwritten refusal), and transmit this document, along with statements of the reasons for the refusal and the record of negotiations, to GSA at the address specified at 41.301(a).” (FAR 41.202(c)) “Unless urgent and compelling circumstances exist, the contracting officer shall notify GSA prior to acquiring utility services without executing a tendered contract.” (Id.) • “After such notification, the agency may proceed with the acquisition and pay for the utility service under the provisions of 31 U.S.C. 1501(a)(8)— i. By issuing a purchase order in accordance with 13.302; or ii. By ordering the necessary utility service and paying for it upon the presentation of an invoice, provided that a determination is approved by the head of the contracting activity that a written contract cannot be obtained and that the issuance of a purchase order is not feasible.” (FAR 41.202(c))
  • 40. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - Procedures (1) What happens when a utility supplier refuses to execute a tendered contract? (continued) • Where there is no bilateral written contract, the contracting officer must establish a “utility history file” on each acquisition of utility service provided by a contractor, which shall contain, in addition to applicable documents in 4.803, various information set forth in FAR 4.202(d). • Contracting officer must continue (annually) to attempt to execute a bilateral written contract and document this. (FAR 41.202(e)) Must also notify GSA (Id.) • Bottom line: possible that FAR clauses may not be included! Is this the FAR?! • But NO SUBTERFUGE!
  • 41. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - GSA Areawide Contracts, Separate Contracts, Interagency Agreements (1) GSA Areawide Contracts • Entered into by GSA for use by Federal agencies. They provide a pre-established contractual vehicle for ordering utility services. (FAR 41.204(a)) • Provide for ordering utility service at rates approved and/or established by a regulatory body and published in a tariff or rate schedule. (FAR 41.204(b)(1)) “However, agencies are permitted to negotiate other rates and terms and conditions of service with the supplier.” (Id.) “Rates other than those published may require the approval of the regulatory body.” (Id.) • List of areawide contracts available at GSA regional offices and/or GSA’s Energy Division (www.gsa.gov/energy; Email: energy@gsa.gov).
  • 42. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - GSA Areawide Contracts, Separate Contracts, Interagency Agreements (1) GSA Areawide Contracts (continued) • Mandatory with exceptions. “Any Federal agency having a requirement for utility services within an area covered by an areawide contract shall acquire services under that areawide contract unless— 1. Service is available from more than one supplier; or 2. The head of the contracting activity or designee otherwise determines that use of the areawide contract is not advantageous to the Government. If service is available from more than one supplier, service shall be acquired using competitive acquisition procedures (see 41.202(a)). The determination required by paragraph (c)(1)(ii) of this section shall be documented in the contract file with an information copy furnished to GSA at the address in 41.301(a).” (FAR 41.204(c)(1))
  • 43. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - GSA Areawide Contracts, Separate Contracts, Interagency Agreements (1) GSA Areawide Contracts (continued) • Nuts and bolts: “Each areawide contract includes an authorization form for ordering service, connection, disconnection, or change in service. Upon execution of an authorization by the contracting officer and utility supplier, the utility supplier is required to furnish services, without further negotiation, at the current, applicable published or unpublished rates, unless other rates, and/or terms and conditions are separately negotiated by the Federal agency with the supplier.” (FAR 41.204(c)(2)) • Contracting officer must “execute the Authorization, and attach it to a Standard Form (SF) 26, Award/Contract, along with any modifications such as connection charges, special facilities, or service arrangements.” (FAR 41.204(c)(3)) Find forms at www.gsa.gov. • Specific fiscal, operational, and administrative requirements, applicable rates, technical information, and maps or drawings of delivery points, etc. must be incorporated. (FAR 41.204(c)(3))
  • 44. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - GSA Areawide Contracts, Separate Contracts, Interagency Agreements 2. Separate Contracts • “In the absence of an areawide contract or interagency agreement (see 41.206), agencies shall acquire utility services by separate contract . . . .” (FAR 41.205(a)) • Contracting officer must document the contract file with various required information (FAR 41.205(b)) • Contract between 1 and 10 years “may be justified, and is usually required, where any of the following circumstances exist: 1. The Government will obtain lower rates, larger discounts, or more favorable terms and conditions of service; 2. A proposed connection charge, termination liability, or any other facilities charge to be paid by the Federal Government will be reduced or eliminated; or 3. The utility service supplier refuses to render the desired service except under a contract exceeding a 1–year period.” (FAR 41.205(d))
  • 45. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.2 – Acquiring Utility Services - GSA Areawide Contracts, Separate Contracts, Interagency Agreements 3. Interagency agreements • “Agencies shall use interagency agreements (e.g., consolidated purchase, joint use, or cross-service agreements) when acquiring utility service or facilities from other Government agencies and shall comply with the policies and procedures at 17.502–2, The Economy Act.” (FAR 41.206) • Must use formal agreement. Requires a determination and findings. Consult FAR 17.502-2 for more information.
  • 46. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.3 – Requests for Assistance from GSA 1. Upon request, GSA will “provide technical and acquisition assistance, or will delegate its contracting authority for the furnishing of the services described in this part for any Federal agency, mixed-ownership Government corporation, the District of Columbia, the Senate, the House of Representatives, or the Architect of the Capitol and any activity under the Architect's direction.” (FAR 41.203(a)) 2. Must be submitted to the appropriate office: requests for delegations of authority from GSA, or for assistance with a proposed contract, must be submitted to the appropriate GSA regional office where service is required. (FAR 41.301(a)) 3. Must be timely. Requests for contracting assistance must be sent not later than 120 days prior to the date new services are required to commence or an existing contract will expire. (FAR 41.301(b)) The request must contain a variety of information set forth in FAR 41.301(b), (c), (d).
  • 47. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.4 – Administration (Monthly and Annual Reviews, Rate Changes, Interventions) 1. Monthly and Annual Reviews: • Agencies must review utility service invoices on a monthly basis. (FAR 41.401) Must review all utility accounts, with annual values exceeding the simplified acquisition threshold, on an annual basis. (Id.) “Annual reviews of accounts with annual values at or below the simplified acquisition threshold shall be conducted when deemed advantageous to the Government.” (Id.) • Different purposes: Purpose of the monthly review is to ensure the accuracy of utility service invoices. The purpose of the annual review is “to ensure that the utility supplier is furnishing the services to each facility under the utility's most economical, applicable rate and to examine competitive markets for more advantageous service offerings.” (Id.) “The annual review shall be based upon the facility's usage, conditions and characteristics of service at each individual delivery point for the most recent 12 months.” (Id.) “If a more advantageous rate is appropriate, the Federal agency shall request the supplier to make such rate change immediately.” (Id.)
  • 48. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.4 – Administration (Monthly and Annual Reviews, Rate Changes, Interventions) 2. Rate changes and regulatory intervention: • Where changes are proposed to rates or terms and conditions of service, “the agency shall promptly determine whether the proposed change is reasonable, justified, and not discriminatory.” (FAR 41.402(a)) • If the change may be of interest “to other Federal agencies, and intervention before a regulatory body is considered justified, the matter shall be referred to GSA.” (FAR 41.402(b)) “The agency may request from GSA a delegation of authority for the agency to intervene on behalf of the consumer interests of the Federal executive agencies (see 41.301).” (FAR 41.402(b)) • If a regulatory body approves a rate change, “any rate change shall be made a part of the contract by unilateral contract modification or otherwise documented in accordance with agency procedures.” (FAR 41.402, 52.241-7) “The approved applicable rate shall be effective on the date determined by the regulatory body and resulting rates and charges shall be paid promptly to avoid late payment provisions. Copies of the modification containing the approved rate change shall be sent to the agency's paying office or office responsible for verifying billed amounts (see 41.401).” (FAR 41.402(c))
  • 49. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.4 – Administration (Monthly and Annual Reviews, Rate Changes, Interventions) 2. Rate changes and regulatory intervention (continued): • Where utility supplier is not regulated and the rates, terms, and conditions of service are subject to negotiation pursuant to the clause at 52.241–8 (“Change in Rates or Terms and Conditions of Service for Unregulated Services), “any rate change shall be made a part of the contract by contract modification, with copies sent to the agency's paying office or office responsible for verifying billed amounts.” (FAR 41.402(d))
  • 50. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.5 – Solicitation Provisions and Contract Clauses 1. Contracting officer shall insert in solicitations and contracts for utility services the following clauses or clauses that are substantially the same (FAR 41.501(b)-(c)): • FAR 52.241-1 (Electric Service Territory Compliance Representation) when proposals from alternative electric suppliers are sought; • FAR 52.241–2, Order of Precedence—Utilities; • FAR 52.241–3, Scope and Duration of Contract; • FAR 52.241–4, Change in Class of Service; • FAR 52.241–5, Contractor's Facilities; and • FAR 52.241–6, Service Provisions.
  • 51. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.5 – Solicitation Provisions and Contract Clauses 2. Contracting officer shall insert in solicitations and contracts for utility services the following clauses or clauses that are substantially the same under the prescribed conditions (FAR 41.501(d)): i. FAR 52.241–7, Change in Rates or Terms and Conditions of Service for Regulated Services, when the utility services are subject to a regulatory body. [But see exceptions] ii. FAR 52.241–8, Change in Rates or Terms and Conditions of Service for Unregulated Services, when the utility services are not subject to a regulatory body. iii. FAR 52.241–9, Connection Charge, when a refundable connection charge is required to be paid by the Government to compensate the contractor for furnishing additional facilities necessary to supply service. [But see Alternates] iv. FAR 52.241–10, Termination Liability, when payment is to be made to the contractor upon termination of service in conjunction with or in lieu of a connection charge upon completion of the facilities.
  • 52. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.5 – Solicitation Provisions and Contract Clauses 2. Contracting officer shall insert in solicitations and contracts for utility services the following clauses or clauses that are substantially the same under the prescribed conditions (FAR 41.501(d)): v. FAR 52.241–11, Multiple Service Locations (as defined in 41.101), when providing for possible alternative service locations, except under areawide contracts, is required. vi. FAR 52.241–12, Nonrefundable, Nonrecurring Service Charge, when the Government is required to pay a nonrefundable, nonrecurring membership fee, a charge for initiation of service, or a contribution for the cost of facilities construction. The Government may provide for inclusion of such agreed amount or fee as a part of the connection charge, a part of the initial payment for services, or as periodic payments to fulfill the Government's obligation. vii. 52.241–13, Capital Credits, when the Federal Government is a member of a cooperative and is entitled to capital credits, consistent with the bylaws and governing documents of the cooperative.
  • 53. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.5 – Solicitation Provisions and Contract Clauses 2. Select clauses: FAR 52.241–7, Change in Rates or Terms and Conditions of Service for Regulated Services, when the utility services are subject to a regulatory body. (a) This clause applies to the extent services furnished under this contract are subject to regulation by a regulatory body. The Contractor agrees to give *__________ written notice of (1) the filing of an application for change in rates or terms and conditions of service concurrently with the filing of the application and (2) any changes pending with the regulatory body as of the date of contract award. Such notice shall fully describe the proposed change. If, during the term of this contract, the regulatory body having jurisdiction approves any changes, the Contractor shall forward to the Contracting Officer a copy of such changes within 15 days after the effective date thereof. The Contractor agrees to continue furnishing service under this contract in accordance with the amended tariff, and the Government agrees to pay for such service at the higher or lower rates as of the date when such rates are made effective. (b) The Contractor agrees that throughout the life of this contract the applicable published and unpublished rate schedule(s) shall not be in excess of the lowest cost published and unpublished rate schedule(s) available to any other customers of the same class under similar conditions of use and service. (c) In the event that the regulatory body promulgates any regulation concerning matters other than rates which affects this contract, the Contractor shall immediately provide a copy to the Contracting Officer. The Government shall not be bound to accept any new regulation inconsistent with Federal laws or regulations. (d) (d) Any changes to rates or terms and conditions of service shall be made a part of this contract by the issuance of a contract modification unless otherwise specified in the contract. The effective date of the change shall be the effective date by the regulatory body. Any factors not governed by the regulatory body will have an effective date as agreed to by the parties.
  • 54. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Part 41.5 – Solicitation Provisions and Contract Clauses 2. Select clauses (continued): FAR 52.241–7, Change in Rates or Terms and Conditions of Service for Regulated Services, when the utility services are subject to a regulatory body. Note: State regulators may have additional notice requirements!
  • 55. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Parts 41.6, 41.7 – Forms and Formats 1. Forms: • Unless using an areawide contract, a purchase order, or an interagency agreement, agencies must use the Standard Form (SF) 33, Solicitation, Offer and Award; SF 26, Award/Contract; or SF 1447, Solicitation/Contract. (FAR 41.601(a)) • Contracting officer must incorporate the applicable rate schedule in each contract, purchase order or modification. (FAR 41.601(b)) 2. Formats: • Obtain specification formats for the following utility services from GSA: electric service; water service; steam service; sewage service; natural gas service. (FAR 41.701(a))
  • 56. 2024 Webinar Series - THE FAR J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com Parts 41.6, 41.7 – Forms and Formats 2. Formats (continued): • Contracting officers may modify the specification format and “attach technical items, details on Government ownership of equipment and real property and maintenance or repair obligations, maps or drawings of delivery points, and other information deemed necessary to fully define the service conditions.” (FAR 41.701(b)) • Specifications and attachments must be inserted in Section C of the utility service solicitation and contract. (FAR 41.701(c))
  • 57. 2024 Webinar Series THE FAR CONTACT ME WITH QUESTIONS! SPEAKER: William Stowe FIRM: Jackson Walker L.L.P. EMAIL: wstowe@jw.com PHONE: (713) 752-4360 J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 58. 2024 Webinar Series THE FAR Please subscribe to our YouTube Channel for Gov Con Content Uploads including THESE WEBINARS! https://www.youtube.com/@jenniferschaus/videos J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com
  • 59. 2024 Webinar Series The FAR: Federal Acquisition Regulations THANK YOU FOR JOINING US! J Schaus & Associates, WASHINGTON DC – hello@JenniferSchaus.com