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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: January 4, 2005

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

SOURCE: Federal Register, January 4, 2005, Vol. 70, No. 2, page 298

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

ACTION: Final Rule

SYNOPSIS: GSA is amending the GSAR to add GSAR 552.233-71, Disputes (Utility Contracts), which addresses disputes involving tariffed retail rates, tariff rate schedules, and tariffed terms.

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

For more on the proposed rule, see the July 6, 2004, FEDERAL CONTRACTS DISPATCH "General Services Administration Acquisition Regulation (GSAR); Disputes and Appeals Under Public Utility Contracts."

EFFECTIVE DATE: January 4, 2005.

FOR FURTHER INFORMATION CONTACT: Ernest Woodson, at 202-501-3775.

SUPPLEMENTAL INFORMATION: Federal Acquisition Regulation (FAR) Subpart 33.2, Disputes and Appeals, implements the requirements of the Contract Disputes Act of 1978, which establishes procedures and requirements for asserting and resolving claims. It is the government's policy to resolve all contractual issues in dispute by mutual agreement at the contracting officer level. 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). Nevertheless, 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 lie 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. On July 6, 2004, GSA published a proposed rule to 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 GSAR 533.215, Contract Clause, which would include the prescription for GSAR 552.233-71). No comments were received on the proposed rule, so it is adopted as final without changes.

The text of the new GSAR 552.233-1 is as follows:

"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.

Copyright 2005 by Panoptic Enterprises. All Rights Reserved.

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