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    Is there a deviation in the FAR that allows Utility agencies (for example, the local government's water utility agency) to write the contract in their own format and deviate from the format in the FAR?


    Answer

    1. Added input from the requester indicates that the local government in question is in Guam. Therefore, the FAR and DFARS references quoted below in pertinent part are applicable to this response.

    FAR 1.401 -- Definition
    “Deviation” means any one or combination of the following:
      (a) The issuance or use of a policy, procedure, solicitation provision, contract clause, method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the FAR.
      (b) The omission of any solicitation provision or contract clause when its prescription requires its use.
      (d) The use of a solicitation provision or contract clause prescribed by the FAR on a “substantially as follows” or “substantially the same as” basis, if such use is inconsistent with the intent, principle, or substance of the prescription or related coverage on the subject matter in the FAR.

    FAR 2.101 -- Definitions
    “Substantially as follows” or “substantially the same as,” when used in the prescription and introductory text of a provision or clause, means that authorization is granted to prepare and utilize a variation of that provision or clause to accommodate requirements that are peculiar to an individual acquisition; provided that the variation includes the salient features of the FAR provision or clause, and is not inconsistent with the intent, principle, and substance of the FAR provision or clause or related coverage of the subject matter.

    “United States” when used in a geographic sense, means the 50 States and the District of Columbia, except as follows:
      (1) For use in Subpart 3.10, see the definition at 3.1001.
      (2) For use in Subpart 22.8, see the definition at 22.801.
      (3) For use in Subpart 22.10, see the definition at 22.1001.
      (4) For use in Subpart 22.13, see the definition at 22.1301.
      (5) For use in Subpart 22.16, see the definition at 22.1601.
      (6) For use in Subpart 22.18, see the definition at 2.1801.
      (7) For use in Part 23, see the definition at 23.001.
      (8) For use in Part 25, see the definition at 25.003.
      (9) For use in Part 27, see the definition at 27.001.
      (10) For use in Subpart 47.4, see the definition at 47.401.

    FAR Subpart 41.2 -- Acquiring Utility Services

    FAR 41.201 -- Policy
    (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.

    FAR 41.501 -- Solicitation Provision and Contract Clauses
    (a) Because the terms and conditions under which utility suppliers furnish service may vary from area to area, the differences may influence the terms and conditions appropriate to a particular utility’s contracting situation. To accommodate requirements that are peculiar to the contracting situation, this section prescribes provisions and clauses on a “substantially the same as” basis (see 52.101) which permits the contracting officer to prepare and utilize variations of the prescribed provision and clauses in accordance with agency procedures.

    FAR 41.601 -- Utility Services Forms
    (a) If acquiring utility services under other than an areawide contract, a purchase order or an interagency agreement, the Standard Form (SF) 33, Solicitation, Offer and Award; SF 26, Award/Contract; or SF 1447, Solicitation/Contract, shall be used.

    DFARS Subpart 241.2 -- Acquiring Utility Services

    DFARS 241.201 – Policy
    (2) Purchases of utility services outside the United States may use—
      (i) Formats and technical provisions consistent with local practice; and
      (ii) Dual language forms and contracts.

    DFARS 241.501 – Solicitation provision and contract clauses
    DFARS 241.501-70 – Additional clauses

    2. As specified in FAR 2.101, the definition of the “United States” means the 50 States and the District of Columbia for the purpose of acquiring utility services under FAR Subpart 41.2 and DFARS Subpart 241.2. Therefore, because the acquisition of the utility services will be in Guam, DoD policy as described above permits the use of formats that are consistent with local practice. Additionally, FAR 41.601 permits the use of the SF 1447 for the acquisition of utility services. Unlike the SF 33 or the SF 26, the first page of the SF 1447, which could be used in this case, is a simple contract cover sheet that does not invoke the use of the Uniform Contract Format (UCF) as specified in FAR 15.204-1.  Therefore, even if the contemplated acquisition of utility services were to be conducted in the United States as defined above, the use of the UCF would still not be required.

    3. Based on the above, provided that the applicable contract clauses as prescribed in FAR 41.501, DFARS 241.501, and DFARS 241.501-70 are used in the contract on a “substantially the same as” basis as defined in FAR 2.101, then the contemplated acquisition of utility services using formats consistent with local practice would be compliant with existing DoD policy and procedures and would not constitute a deviation as defined in FAR 1.401.  (Although, we would recommend the use of the SF 1447 cover page for administrative purposes.) Therefore, there are no "deviations" as defined above in the FAR relating to the contract format for the acquisition of utility services, but none would be required in this case because of the implementation of these requirements as specified in the DFARS.


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