[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR41.201]



[Page 774-775]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 41_ACQUISITION OF UTILITY SERVICES--Table of Contents

 

                 Subpart 41.2_Acquiring Utility Services

 

Sec. 41.201  Policy.





    (a) 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.

    (b) 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.)



[[Page 775]]



    (c) Specific operating and management details, such as procedures 

for internal agency contract assistance and review, delegations of 

authority, and approval thresholds, may be prescribed by an individual 

agency subject to compliance with applicable statutes and regulations.

    (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.

    (2) The Act does not preclude--

    (i) The head of a Federal agency from entering into a contract 

pursuant to 42 U.S.C. 8287 (which pertains to the subject of shared 

energy savings including cogeneration);

    (ii) The Secretary of a military department from entering into a 

contract pursuant to 10 U.S.C. 2394 (which pertains to contracts for 

energy or fuel for military installations including the provision and 

operation of energy production facilities); or

    (iii) 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.

    (3) Additionally, the head of a Federal agency may--

    (i) 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;

    (ii) Enter into an interagency agreement, pursuant to 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

    (iii) Enter into a contract with an electric utility under the 

authority or tariffs of the Federal Energy Regulatory Commission.

    (e) 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)).



[59 FR 67018, Dec. 28, 1994, as amended at 60 FR 34759, July 3, 1995; 61 

FR 39190, July 26, 1996; 64 FR 10533, Mar. 4, 1999]