41.201 Policy
Source: FAR 41.201 on acquisition.gov
Federal agencies must acquire utility services through written contracts that comply with both federal and state requirements, ensuring best value and legal compliance.
Overview
FAR 41.201 establishes the Federal Government's policy for acquiring utility services, emphasizing that agencies must obtain these services from sources that offer the best value in terms of economy, efficiency, reliability, or service. For acquisitions above the simplified acquisition threshold, agencies are required to use bilateral written contracts that include all mandatory FAR clauses, regardless of whether the utility's rates or terms are regulated. Agencies cannot use supplier forms to bypass these requirements. The section also addresses compliance with state laws regarding the purchase of electricity, especially under Section 8093 of the Department of Defense Appropriations Act of 1988, and outlines exceptions for certain energy contracts and circumstances. Before acquiring electric utility services competitively, contracting officers must ensure that such competition does not violate state law, and alternative suppliers must certify compliance with relevant statutes.
Key Rules
- Best Value Sourcing
- Agencies must obtain utility services from the most advantageous sources considering cost, efficiency, reliability, and service quality.
- Written Contract Requirement
- For acquisitions above the simplified acquisition threshold, a bilateral written contract with required FAR clauses is mandatory.
- State Law Compliance
- Agencies must comply with state laws and utility commission rulings when purchasing electricity, with specific exceptions for certain federal and military contracts.
- Competitive Acquisition Restrictions
- Contracting officers must confirm that competitive procurement of electric utility services does not conflict with state law, and suppliers must certify compliance.
Responsibilities
- Contracting Officers: Must ensure contracts include required clauses, verify compliance with state law, and obtain legal counsel as needed.
- Contractors: Must provide representations of compliance with state law and federal statutes when offering electric utility services.
- Agencies: May set internal procedures but must adhere to statutory and regulatory requirements, and cannot use supplier forms to avoid FAR clauses.
Practical Implications
- This section ensures federal utility acquisitions are cost-effective, legally compliant, and transparent.
- It prevents agencies from bypassing federal requirements by using supplier forms and enforces adherence to both federal and state regulations.
- Common pitfalls include failing to include required clauses, not verifying state law compliance, or improperly using supplier documentation.
(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.)
(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 of1988, 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 http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title42-section8287&num=0&edition=prelim" target="_blank">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 https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title10-section2922&num=0&edition=prelim" target="_blank">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
(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 of1978;
(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 Com-mission.
(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 Law100-202 (see 41.201(d)).