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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: July 6, 2004

SUBJECT: General Services Administration Acquisition Regulation (GSAR); Disputes and Appeals Under Public Utility Contracts

SOURCE: Federal Register, July 6, 2004, Vol. 69, No. 128, page 40729

AGENCIES: Office of Governmentwide Policy, General Services Administration (GSA)

ACTION: Proposed Rule

SYNOPSIS: GSA is proposing to add GSAR 552.233-71, Disputes (Utility Contracts), to make disputes involving public utility service subject to the jurisdiction and regulation of the utility rate commission having jurisdiction.

EDITOR'S NOTE: The GSAR is the shaded part of the GSA Acquisition Manual, which is available on the Internet at http://www.acqnet.gov/GSAM/gsam.html.

DATES: Comments on the proposed rule must be submitted on or before September 7, 2004.

ADDRESSES: Submit comments, identified by "GSAR Case 2004-G501," to: (1) http://www.regulations.gov; (2) http://www.acqnet.gov/far/ProposedRules/proposed.htm; (3) e-mail: gsarcase.2004-G501@gsa.gov; (4) fax: 202-501-4067; or (5) mail: General Services Administration, Regulatory Secretariat (MVA), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.

FOR FURTHER INFORMATION CONTACT: Ernest Woodson, 202-501-3775, or by e-mail to: ernest.woodson@gsa.gov.

SUPPLEMENTAL INFORMATION: Federal Acquisition Regulation (FAR) Subpart 33.2, Disputes and Appeals, establishes procedures and requirements for asserting and resolving claims subject to the Contract Disputes Act of 1978. It is the government's policy to resolve all contractual controversies by mutual agreement at the contracting officer level whenever possible. However, the Contract Disputes Act provides for various agency Boards of Contract Appeals and the United States Court of Federal Claims to resolve appeals of a contracting officer's decision. This is implemented by the inclusion of FAR 52.233-1, Disputes, in all solicitations and contracts (except those with a foreign government or an international organization under certain conditions).

Notwithstanding this broad authority to decide contract appeals, the boards and the court do not have authority to interpret tariffs or tariff-related matters established through public hearings in each jurisdiction for regulated utilities. The authority pertaining to these matters lies with state public utility commissions.

GSA's Public Building Service awards contracts for public utility services, and occasionally disputes involving tariffs and tariff related matters arise from those contracts. This proposed rule would add GSAR 552.233-71 as a supplement to FAR 52.233-1 "in solicitations and contracts for utility services subject to the jurisdiction and regulation of a utility rate commission" (proposed prescription for GSAR 552.233-1 in proposed GSAR 533.215, Contract Clause). The text of GSAR 552.233-1 would be:

"The requirements of the Disputes clause at Federal Acquisition Regulation (FAR) 52.233-1 are supplemented to provide that matters involving the interpretation of tariffed retail rates, tariff rate schedules, and tariffed terms provided under this contract are subject to the jurisdiction and regulation of the utility rate commission having jurisdiction."

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2004 by Panoptic Enterprises. All Rights Reserved.

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