[Federal Register: February 13, 2004 (Volume 69, Number 30)]
[Rules and Regulations]
[Page 7105-7111]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe04-2]
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DEPARTMENT OF AGRICULTURE
Rural Utilities Service
7 CFR Parts 1724, 1726, and 1755
RIN 0572-AB67
Revision of Electric Program Standard Contract Forms
AGENCY: Rural Utilities Service, USDA.
ACTION: Final rule.
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SUMMARY: The Rural Utilities Service (RUS) is amending its regulations
to revise its standard forms of contracts that borrowers are required
to use when contracting for construction and procurement, that are or
will be financed by loans made or guaranteed by RUS, in accordance with
applicable RUS regulations. RUS is updating, consolidating, and
streamlining these standard forms of contracts. These changes are being
made to improve the usefulness of the standard forms of contract and to
make it easier for RUS borrowers to utilize these standard forms of
contract.
DATES: This rule will become effective on March 15, 2004.
FOR FURTHER INFORMATION CONTACT: Fred J. Gatchell, Deputy Director,
Electric Staff Division, Rural Utilities Service, U.S. Department of
Agriculture, Stop 1569, 1400 Independence Ave., SW., Washington, DC
20250-1569. Telephone: (202) 720-1398. FAX: (202) 720-7491. E-mail:
Fred.Gatchell@usda.gov.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This rule has been determined to be not significant for the
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget (OMB).
Executive Order 12372
This rule is excluded from the scope of Executive Order 12372,
Intergovernmental Consultation, which may require consultation with
State and local officials. See the final rule related notice entitled,
``Department Programs and Activities Excluded from Executive Order
12372,'' (50 FR 47034) advising that RUS loans and loan guarantees were
not covered by Executive Order 12372.
[[Page 7106]]
Executive Order 12988
This rule has been reviewed under Executive Order 12988, Civil
Justice Reform. RUS has determined that this rule meets the applicable
standards provided in section 3 of the Executive Order. In addition,
all State and local laws and regulations that are in conflict with this
rule will be preempted; no retroactive effect will be given to this
rule; and in accordance with section 212(e) of the Department of
Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e))
administrative appeal procedures, if any, must be exhausted before an
action against the Department or its agencies may be initiated.
Regulatory Flexibility Act Certification
It has been determined that the Regulatory Flexibility Act is not
applicable to this rule since the Rural Utilities Service is not
required by 5 U.S.C. 551 et seq. or any other provision of law to
publish a notice of proposed rulemaking with respect to the subject
matter of this rule.
National Environmental Policy Act Certification
The Administrator of RUS has determined that this rule will not
significantly affect the quality of the human environment as defined by
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
Therefore, this action does not require an environmental impact
statement or assessment.
Catalog of Federal Domestic Assistance
The program described by this rule is listed in the Catalog of
Federal Domestic Assistance Programs under number 10.850, Rural
Electrification Loans and Loan Guarantees. This catalog is available on
a subscription basis from the Superintendent of Documents, the United
States Government Printing Office, Washington, DC 20402-9325, telephone
number (202) 512-1800.
Information Collection and Recordkeeping Requirements
The reporting and recordkeeping requirements contained in this rule
have been approved by the Office of Management and Budget (OMB)
pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35)
under OMB control number 0572-0107.
Unfunded Mandates
This rule contains no Federal mandates (under the regulatory
provision of Title II of the Unfunded Mandates Reform Act of 1995) for
State, local, and tribal governments or the private sector. Thus, this
rule is not subject to the requirements of sections 202 and 205 of the
Unfunded Mandates Reform Act of 1995.
Background
The standard loan agreement between RUS and its electric borrowers
provides that, in accordance with applicable RUS regulations, the
borrower shall use standard forms of contracts promulgated by RUS for
construction, procurement, engineering services, and architectural
services financed by a loan made or guaranteed by RUS. RUS also
provides forms of contracts which serve as guidance to borrowers and
which borrowers may use at their discretion. RUS is updating,
consolidating, and streamlining the standard forms of contracts used
for construction and procurement. The forms affected are:
Primary Contract Forms
1. RUS Form 198, Rev. 2-95, Equipment Contract. This form is used
for equipment purchases.
2. RUS Form 200, Rev. 2-95, Construction Contract--Generating. This
form is used for generating plant construction or for the furnishing
and installation of major items of equipment.
3. RUS Form 201, Rev. 2-95, Right-of-Way Clearing Contract. This
form is used for distribution line right-of-way clearing work which is
to be performed separate from line construction.
4. RUS Form 203, Rev. 2-95, Transmission System Right-of-Way
Clearing Contract. This form is used for transmission right-of-way
clearing work which is to be performed separate from line construction.
5. RUS Form 257, Rev. 2-95, Contract to Construct Buildings. This
form is used to construct headquarters buildings and other structure
construction.
6. RUS Form 764, Rev. 2-95, Substation and Switching Station
Erection Contract. This form is used to construct substations and
switching stations.
7. RUS Form 786, Rev. 2-95, Electric System Communications and
Control Equipment Contract. This form is used for delivery and
installation of equipment for system communications.
8. RUS Form 790, Rev. 2-95, Distribution Line Extension
Construction Contract (Labor and Materials). This form is used for
limited distribution construction accounted for under work order
procedure.
9. RUS Form 792, Rev. 2-95, Distribution Line Extension
Construction Contract (Labor Only). This form is used for limited
distribution construction accounted for under work order procedure.
10. RUS Form 830, Rev. 2-95, Electric System Construction Contract
(Labor and Materials). This form is used for distribution and
transmission line project construction.
11. RUS Form 831, Rev. 2-95, Electric Transmission Construction
Contract (Labor and Materials). This form is used for transmission line
project construction.
Secondary Contract Forms
1. RUS Form 168b, Rev. 2-95, Contractor's Bond. This form is used
to obtain a surety bond and is included in RUS Forms 200, 201, 203,
257, 764, 786, 790, 792, 830, and 831.
2. RUS Form 168c, Rev. 2-95, Contractor's Bond (less than $1
million). This form is used in lieu of RUS Form 168b to obtain a surety
bond when contractor's surety has accepted a Small Business
Administration guarantee.
3. RUS Form 180, Rev. 2-95, Construction Contract Amendment. This
form is used to amend distribution line construction contracts.
4. RUS Form 181, Rev. 2-95, Certificate of Completion, Contract
Construction for Buildings. This form is used for the closeout of RUS
Form 257.
5. RUS Form 187, Rev. 2-95, Certificate of Completion, Contract
Construction. This form is used for the closeout of and is included in
RUS Forms 200, 203, 764, 786, 830, and 831.
6. RUS Form 213, Rev. 11-99, Certificate (``Buy American''). This
form is used to document compliance with the ``Buy American''
requirement.
7. RUS Form 224, Rev. 2-95, Waiver and Release of Lien. This form
is used for the closeout of and is included in RUS Forms 200, 203, 764,
786, 830, and 831.
8. RUS Form 231, Rev. 2-95, Certificate of Contractor. This form is
used for the closeout of and is included in RUS Forms 200, 203, 764,
786, 830, and 831.
9. RUS Form 238, Rev. 2-95, Construction or Equipment Contract
Amendment. This form is used to amend contracts except distribution
line construction contracts.
10. RUS Form 251, Rev. 2-95, Material Receipt. This form is used to
document receipt of owner furnished materials and is included in RUS
Forms 764, 830, and 831.
11. RUS Form 254, Rev. 2-95, Construction Inventory. This form is
used for the closeout of RUS Forms 203, 764, 830, and 831.
12. RUS Form 307, Rev. 2-95, Bid Bond. This form is used to obtain
a bid
[[Page 7107]]
bond and is included in RUS Forms 200, 203, 257, 764, 830, and 831.
13. RUS Form 792b, Rev. 2-95, Certificate of Construction and
Indemnity Agreement. This form is used for the closeout of and is
included in RUS Forms 201, 790, 792.
14. RUS Form 792c, Rev. 2-95, Supplemental Contract for Additional
Project. This form is used to amend and is included in RUS Forms 201,
790, 792.
Guidance Forms
1. RUS Form 172, Rev. 9-58, Certificate of Inspection, Contract
Construction. This form is used to notify RUS that construction is
ready for inspection.
2. RUS Form 173, Rev. 3-55, Materials Contract. This form is used
for distribution, transmission, and general plant material purchases.
3. RUS Form 274, Rev. 6-81, Bidder's Qualifications. This form is
used to document bidder's qualifications.
4. RUS Form 282, Rev. 11-53, Subcontract. This form is used for
subcontracting.
5. RUS Form 458, Rev. 3-55, Materials Contract. This form is used
to obtain generation plant material and equipment purchases not
requiring acceptance tests at the project site.
Major Changes
The revisions to the listed contract forms include:
1. Eliminate unneeded forms. This includes merging the Form 181
into the Form 187, merging the Form 180 and 792c into the Form 238,
merging the Form 201, 203, and 764 into the Form 830, and eliminating
Forms 180, 181, 201, 203, 764 and 792c. We are also eliminating
infrequently used guidance forms (Forms 172, 173, 274, 282, and 458.)
2. Make forms suitable for ``subject to'' or ``not subject to'' RUS
approval. This includes merging the Form 831 into the Form 830 and
eliminating Form 831.
3. Make construction contract forms suitable for ``labor only'' or
``labor and material.'' This includes merging the Form 792 into the
Form 790 and eliminating Form 792.
4. Standardize tables and information pages and incorporate them as
separate attachments. RUS is planning to publish the ``Construction
Assembly Units'' pages as a separate bulletin. This would allow the
borrower to include in its bid package only those construction assembly
unit pages that are relevant to a particular project.
5. Maximize consistency among forms. This includes standardizing
common provisions and terminology, and adding a ``Notice and
Instructions to Bidders'' to forms not having one. This also includes
restructuring the Form 198, Equipment Contract, to a ``proposal'' and
``acceptance'' format (like the other forms), and adding certain
provisions, such as insurance and protection to persons and property,
applicable to work performed at the project site, such as technical
assistance during installation.
6. Add a provision regarding assignment of the contract to RUS for
security purposes.
7. Update and clarify certain contract provisions in the forms.
This includes:
a. Clarify that the contractor (not the owner or engineer) is
solely responsible for the means and methods of construction and for
the supervision of the contractor's employees.
b. Delete the reference to a ``Supervisor'' appointed by RUS.
c. Delete the reference to the loan contract and owner's access to
funding.
d. Delete the option for eliminating retainage after the contract
is 50 percent complete.
e. Update the ``Buy American'' and ``Civil Rights'' requirements.
f. Eliminating gender specific terms such as him, his, and
materialmen.
Comments
RUS published an Advanced Notice of Proposed Rulemaking in the
Federal Register on September 16, 1998, at 63 FR 49503. Comments were
received from two distribution borrowers and two power supply
borrowers. RUS also published a Notice of Proposed Rulemaking in the
Federal Register on July 2, 2002, at 67 FR 44396. Comments were
received from one distribution borrower, one power supply borrower, and
two engineering consultants. RUS reviewed and considered all comments.
Several of the comments are addressed herein. Commenters requested that
RUS:
Add a liquidated damages clause to the Forms 198
and 200. This comment has been incorporated.
Allow electronic reproduction for all or part of
the forms. This comment has been incorporated. RUS has removed many of
the tables contained in the forms and made them optional attachments
which may be modified (electronically or otherwise) as needed. RUS is
also allowing exact electronic reproduction of the contract forms. This
change is also being made to 7 CFR 1724, Electric Engineering,
Architectural Services and Design Policies and Procedures.
Modify the closeout and accounting requirements
for certain types of contract forms. RUS has determined that it will
not make this suggested change. RUS believes that the existing
requirements are a reasonable balance between ease of use and
accountability.
Include certification forms concerning lobbying
and debarment. RUS has included a certification form for debarment. RUS
has determined that a lobbying form is not needed in the contract
forms.
Eliminate the requirement to include owner
furnished materials under the contractor's bond for certain contracts.
RUS has determined that it will not make this suggested change. RUS
believes that the existing bonding requirements are necessary for
protection of the borrower's and the government's financial interests.
Add or modify a number of contract provisions to
define or clarify the contractor's obligations. RUS has modified the
contract provisions as appropriate to clarify the contractor's
obligations.
Clarify the nature of Form 830. Form 830 is
called a ``Lump Sum'' contract, but the document refers to a ``Proposal
on Unit Basis'' (Article I, Section 5). This comment has been
incorporated by revising the subtitle of the Form 830 to read ``Project
Construction.''
Expand the ``Discrepancy in Unit Prices''
section (Notice & Instructions to Bidders, Item 15) to include
multiplication as well as addition. This comment has been incorporated.
Add a statement regarding new equipment and
materials to Article I, Section 4. This comment has been incorporated
and we have combined Sections 2 and 4.
Add a provision that observation or testing by
the Owner does not relieve the Bidder of its obligations under the
contract. This comment has been incorporated.
Add a provision to the warranty concerning
warranty of work repaired or replaced under the warranty. This comment
has been incorporated.
Change payment terms to allow the Owner to
determine the number of elapsed days before payment is due to the
Bidder. In the interest of fairness to both parties to the contract,
RUS has determined that it will not make this suggested change.
Revise payment terms on ``1 Lot'' contracts.
Since projects of this type are not common under this standard form of
contract, RUS has determined that it will not make this suggested
change.
Add ``grazing land'' to the protection provision
concerning ``cultivated lands.'' This comment has been incorporated.
Add a provision for contract termination for
Owner's convenience. In
[[Page 7108]]
the interest of fairness to both parties to the contract, RUS has
determined that it will not make this suggested change.
Add a provision concerning Owner's right to
duplicate and use drawings and other technical data furnished under the
contract. Since the contract form does not specifically request
drawings and other technical data, RUS has determined that it will not
make this suggested change. If the Owner or Engineer requests such
information, details concerning the Owner's right to duplicate and use
such information should be included in such a request.
In Form 257, Buildings, remove references to
``unit prices'' and ``de-energize.'' This comment has been
incorporated.
In Form 198, Equipment Contract, revise the
``Due Diligence'' provision concerning knowledge of the site. This
comment has been incorporated.
RUS should specify when contracts require RUS
approval. RUS has determined that it will not make this suggested
change. The Owner is to insert this information into the standard form.
Eliminate the requirement for bid bonds for
small projects. RUS has determined that it will not make this suggested
change. A bid bond (or check) is equally important for a small project
as for a large project.
Remove the cost of ``Owner Furnished Materials''
from ``labor only'' contracts. RUS has determined that it will not make
this suggested change. However, if a borrower can demonstrate a
reasonable benefit and adequate material control, we will consider
allowing a borrower to remove the cost of owner furnished material from
the cost of the contract on a case-by-case basis.
Eliminate the requirement to include ``Owner
Furnished Materials'' under the Contractor's Bond. RUS has determined
that it will not make this suggested change. Since the contractor has
control of the Owner Furnished Materials, it is important to have the
protection of the Contractor's Bond for the full amount of the
contract.
Include a provision to prevent the Contractor
for changing the Owner for salvaged materials reused in the line
construction. RUS has determined that it will not make this suggested
change. With proper material control, this should not be an issue.
Clarify whether the Form 830, Project
Construction Contract, will include a provision concerning salvage and
reuse of the Owner's material. RUS has determined that it will not make
this suggested change. With proper material control, this should not be
an issue.
Clarify whether a Form 254, Construction
Inventory, is needed with a Form 830, Project Construction Contract.
Form 254 is required for a Form 830 contract by Sec. 1726.403.
Include a provision for assessing damages for
late performance by the contractor in the Form 790, Non-Site Specific
Construction Contract. RUS has determined that it will not make this
suggested change. The borrower has adequate remedies under the law.
Clarify the remedy for Contractor's failure to
pay material suppliers and subcontractors. RUS has determined that it
will not make this suggested change. The borrower has adequate remedies
under the law.
Change the engineer's certification in Form 187,
Certificate of Completion, from ``in all respects in strict
compliance'' to ``in compliance'' with the contract. This comment has
been incorporated.
Allow an ``Hourly Labor and Equipment Rate
Schedule'' in the contract forms. RUS has determined that it will not
make this suggested change.
Add a ``Third Year'' option to the Form 790,
Non-Site Specific Construction Contract. This comment has been
incorporated by changing the form to allow the borrower to insert an
option of up to four years.
Correct various editorial and reference
inconsistencies. This comment has been incorporated by making these
corrections as applicable.
One commenter suggested that by eliminating Form 274, Bidder's
Qualifications, RUS is not encouraging prequalification of bidders. On
the contrary, RUS requires prequalification of bidders (see 7 CFR
1726.23) for all contracts. RUS is eliminating the Form 274 because RUS
believes that the substance of the bidder's qualification is more
important than the form used. Borrowers and engineers may use whatever
form or format they feel is appropriate for obtaining bidder's
qualifications.
Other Changes
In addition to the modifications of the contract forms and the
associated changes in 7 CFR 1726, RUS is making several other minor
changes and corrections to 7 CFR 1726. For example, Sec. 1726.125(b),
which covers approval by RUS of plans and specifications for generating
facilities, is being removed because this topic is now covered in 7 CFR
1724, Electric Engineering, Architectural Services and Design Policies
and Procedures. Since some of the electric program contract forms are
also used in the RUS telecommunications program, RUS is changing the
list of forms in 7 CFR 1755. RUS is also removing the reference to year
2000 compliance since this is no longer relevant.
List of Subjects
7 CFR Part 1724
Electric power, Loan programs--energy, Reporting and recordkeeping
requirements, Rural areas.
7 CFR Part 1726
Electric power, Loan programs--energy, Reporting and recordkeeping
requirements, Rural areas.
7 CFR Part 1755
Loan programs--communications, Reporting and recordkeeping
requirements, Rural areas, Telecommunications.
0
For reasons set forth in the preamble, RUS amends 7 CFR chapter XVII as
follows:
PART 1724--ELECTRIC ENGINEERING, ARCHITECTURAL SERVICES AND DESIGN
POLICIES AND PROCEDURES
0
1. The authority citation for part 1724 continues to read as follows:
Authority: 7 U.S.C. 901 et seq., 1921 et seq., 6941 et seq.
Subpart F--RUS Contract Forms
0
2. Amend Sec. 1724.71 by revising paragraph (b) to read as follows:
Sec. 1724.71 Borrower contractual obligations.
* * * * *
(b) Compliance. If a borrower is required by this part or by its
loan agreement with RUS to use a listed standard form of contract, the
borrower shall use the listed contract form in the format available
from RUS, either paper or electronic format. Exact electronic
reproduction is acceptable. The approved RUS standard forms of contract
shall not be retyped, changed, modified, or altered in any manner not
specifically authorized in this part or approved by RUS in writing on a
case-by-case basis. Any modifications approved by RUS on a case-by-case
basis must be clearly shown so as to indicate the modification
difference from the standard form of contract.
* * * * *
[[Page 7109]]
PART 1726--ELECTRIC SYSTEM CONSTRUCTION POLICIES AND PROCEDURES
0
3. The authority citation for part 1726 continues to read as follows:
Authority: 7 U.S.C. 901 et seq., 1921 et seq., 6941 et seq.
Subpart A--General
0
4. Revise Sec. 1726.20 to read as follows:
Sec. 1726.20 Standards and specifications.
All materials, equipment, and construction must meet the minimum
requirements of all applicable RUS standards and specifications. (See
part 1728 of this chapter, Electric Standards and Specifications for
Materials and Construction, which is applicable regardless of the
source of funding.)
0
5. Revise Sec. 1726.24 by revising paragraph (b)(1) to read as follows:
Sec. 1726.24 Standard forms of contracts for borrowers.
* * * * *
(b) * * *
(1) Contract forms. The borrower must use RUS Form 238,
Construction or Equipment Contract Amendment, for any change or
addition in any contract for construction or equipment.
* * * * *
0
6. Revise Sec. 1726.25 to read as follows:
Sec. 1726.25 Subcontracts.
Subcontracts are not subject to RUS approval and need not be
submitted to RUS unless specifically requested by RUS on a case by case
basis.
0
7. Amend Sec. 1726.27 by revising paragraphs (a) and (b) to read as
follows:
Sec. 1726.27 Contractor's bonds.
(a) RUS Form 168b, Contractor's Bond, shall be used when a
contractor's bond is required by RUS Forms 200, 257, 786, 790, or 830
unless the contractor's surety has accepted a Small Business
Administration guarantee and the contract is for $1 million or less.
(b) RUS Form 168c, Contractor's Bond, shall be used when a
contractor's bond is required by RUS Forms 200, 257, 786, 790, or 830
and the contractor's surety has accepted a Small Business
Administration guarantee and the contract is for $1 million or less.
* * * * *
Subpart B--Distribution Facilities
0
8. Amend Sec. 1726.50 by revising paragraph (a)(2) to read as follows:
Sec. 1726.50 Distribution line materials and equipment.
(a) * * *
(2) The borrower may, in its discretion, use RUS Form 198,
Equipment Contract, or a written purchase order for purchases of
equipment of less than $500,000 and for all materials.
* * * * *
0
9. Amend Sec. 1726.51 by revising paragraph (a) to read as follows:
Sec. 1726.51 Distribution line construction.
(a) Contract forms. The borrower must use RUS Form 790, or 830, as
outlined in this paragraph (a), for distribution line construction,
except for minor modifications or improvements.
(1) The borrower may use RUS Form 790, Electric System Construction
Contract--Non-Site Specific Construction, under the following
circumstances:
(i) For contracts for which the borrower supplies all materials and
equipment; or
(ii) For non-site specific construction contracts accounted for
under the work order procedure; or
(iii) If neither paragraph (a)(1)(i) or (a)(1)(ii) of this section
are applicable, the borrower may use RUS Form 790 for contracts, up to
a cumulative total of $250,000 or one percent of net utility plant
(NUP), whichever is greater, per calendar year of distribution line
construction, exclusive of the cost of owner furnished materials and
equipment.
(2) The borrower must use RUS Form 830, Electric System
Construction Contract--Project Construction, for all other distribution
line construction.
* * * * *
Subpart C--Substation and Transmission Facilities
0
10. Amend Sec. 1726.76 by revising paragraph (a)(2) to read as follows:
Sec. 1726.76 Substation and transmission line materials and equipment.
(a) * * *
(2) The borrower may, in its discretion, use RUS Form 198,
Equipment Contract, or a written purchase order for purchases of
equipment of less than $500,000 and for all materials.
* * * * *
0
11. Amend Sec. 1726.77 by revising paragraph (a) to read as follows:
Sec. 1726.77 Substation and transmission line construction.
(a) Contract forms. The borrower must use RUS Form 830, Electric
System Construction Contract--Project Construction, for construction of
substations, except for minor modifications or improvements.
* * * * *
Subpart D--Generation Facilities
0
12. Amend Sec. 1726.125 by removing paragraph (b) and redesignating
paragraphs (c) and (d) as paragraphs (b) and (c), respectively.
Subpart F--General Plant
0
13. Amend Sec. 1726.175 by revising paragraph (a) to read as follows:
Sec. 1726.175 General plant materials.
* * * * *
(a) Contract forms. The borrower may, in its discretion, use RUS
Form 198, Equipment Contract, or a written purchase order.
* * * * *
Subpart H--Modifications to RUS Standard Contract Forms
0
14. Amend Sec. 1726.250 by revising it to read as follows:
Sec. 1726.250 General.
RUS provides standard forms of contract for the procurement of
materials, equipment, and construction and for contract amendments and
various related forms for use by RUS borrowers. See Sec. 1726.304 for a
listing of these forms and how to obtain them. The standard forms of
contract shall be used by the borrowers in accordance with the
provisions of this part. RUS will give prior approval to certain
modifications to these forms without changing the applicable
requirements for RUS approval. Such approved modifications are set
forth in this subpart. These are the only modifications given prior RUS
approval.
0
15. Amend Sec. 1726.252 revising paragraph (a) and removing paragraph
(d) to read as follows:
Sec. 1726.252 Prior approved contract modification related to
liability for special and consequential damages.
* * * * *
(a) Insert new paragraphs in the ``Notice and Instructions to
Bidders'' as follows:
``Proposals are invited on the basis of alternative Liability
Clause Numbers 1 and 2. The Owner will determine on which Liability
Clause basis the award will be made. Any other liability clauses in the
proposal or any other modifications will be considered not responsive
and unacceptable. These Liability Clauses are defined as follows:
Liability Clause Number 1. This will include unmodified all of the
standard
[[Page 7110]]
terms and conditions of the form of contract furnished by the Owner and
attached hereto.
Liability Clause Number 2. This will include the following
paragraph, in addition to all of the standard terms and conditions,
otherwise unmodified, of the form of contract furnished by the Owner
and attached hereto:
`Except for the Bidder's willful delay or refusal to perform the
contract in accordance with its terms, the Bidder's liability to the
Owner for special or consequential damages on account of breach of this
contract shall not exceed in total an amount equal to ---- percent [the
borrower will insert an appropriate percentage between 0 and 100
percent, inclusive] of the contract price.' ''
* * * * *
Sec. 1726.254 [Removed and Reserved]
0
16. Remove and reserve Sec. 1726.254.
0
17. Amend Sec. 1726.255 by revising paragraph (c) and removing
paragraphs (d) and (e) to read as follows:
Sec. 1726.255 Prior approved contract modification related to
indemnification.
* * * * *
(c) If the alternative indemnification provision in paragraph (a)
or (b) of this section is chosen by the borrower, the language of
paragraph (a) or (b) of this section would be inserted in lieu of
paragraph (i) of the section indicated in the RUS standard construction
contract forms as follows:
(1) RUS Form 198, Equipment Contract, article IV, section 1(d).
(2) RUS Form 200, Construction Contract--Generating, article IV,
section 1(d).
(3) RUS Form 257, Contract to Construct Buildings, article IV,
section 1(d).
(4) RUS Form 786, Electric System Communications and Control
Equipment Contract, article IV, section 1(d).
(5) RUS Form 790, Electric System Construction Contract--Non-Site
Specific Construction, article IV, section 1(g).
(6) RUS Form 830, Electric System Construction Contract--Project
Construction, article IV, section 1(g).
Subpart I--RUS Standard Forms
0
18. Amend Sec. 1726.301 by revising paragraph (b) to read as follows:
Sec. 1726.301 Borrower contractual obligations.
* * * * *
(b) Compliance. If a borrower is required by this part or by its
loan agreement with RUS to use a listed standard form of contract, the
borrower shall use the listed contract form in the format available
from RUS, either paper or electronic format. Exact electronic
reproduction is acceptable. The approved RUS standard forms of contract
shall not be retyped, changed, modified, or altered in any manner not
specifically authorized in this part or approved by RUS in writing on a
case-by-case basis. Any modifications approved by RUS on a case-by-case
basis must be clearly shown so as to indicate the modification
difference from the standard form of contract.
* * * * *
0
19. Amend Sec. 1726.302 by revising paragraph (b) to read as follows:
Sec. 1726.302 Notice and publication of listed contract forms.
* * * * *
(b) Availability. Listed standard forms of contract are available
from: Rural Utilities Service, Program Development and Regulatory
Analysis, U.S. Department of Agriculture, Stop 1522, 1400 Independence
Avenue, SW., Washington DC 20250-1522, telephone number (202) 720-8674.
The listed standard forms of contract are also available on the RUS Web
site at: http://www.usda.gov/rus/electric/forms/index.htm. The listed
standard forms of contract can be found in Sec. 1724.304(c), List of
Required Contract Forms.
0
20. Amend Sec. 1726.304 by revising paragraph (c) and (d) to read as
follows:
Sec. 1726.304 List of electric program standard contract forms.
* * * * *
(c) List of required contract forms.
(1) RUS Form 168b, Rev. 2-04, Contractor's Bond. This form is used
to obtain a surety bond and is used with RUS Forms 200, 257, 786, 790,
and 830.
(2) RUS Form 168c, Rev. 2-04, Contractor's Bond (less than $1
million). This form is used in lieu of RUS Form 168b to obtain a surety
bond when contractor's surety has accepted a Small Business
Administration guarantee.
(3) RUS Form 187, Rev. 2-04, Certificate of Completion, Contract
Construction. This form is used for the closeout of RUS Forms 200, 257,
786, and 830.
(4) RUS Form 198, Rev. 2-04, Equipment Contract. This form is used
for equipment purchases.
(5) RUS Form 200, Rev. 2-04, Construction Contract--Generating.
This form is used for generating plant construction or for the
furnishing and installation of major items of equipment.
(6) RUS Form 213, Rev. 2-04, Certificate (``Buy American''). This
form is used to document compliance with the ``Buy American''
requirement.
(7) RUS Form 224, Rev. 2-04, Waiver and Release of Lien. This form
is used for the closeout of RUS Forms 198, 200, 257, 786, 790, and 830.
(8) RUS Form 231, Rev. 2-04, Certificate of Contractor. This form
is used for the closeout of RUS Forms 198, 200, 257, 786, 790, and 830.
(9) RUS Form 238, Rev. 2-04, Construction or Equipment Contract
Amendment. This form is used for amendments.
(10) RUS Form 254, Rev. 2-04, Construction Inventory. This form is
used for the closeout of RUS Form 830. Minor electronic modifications
are acceptable for RUS Form 254.
(11) RUS Form 257, Rev. 2-04, Contract to Construct Buildings. This
form is used to construct headquarters buildings and other structure
construction.
(12) RUS Form 307, Rev. 2-04, Bid Bond. This form is used to obtain
a bid bond.
(13) RUS Form 786, Rev. 2-04, Electric System Communications and
Control Equipment Contract (including installation). This form is used
for delivery and installation of equipment for system communications.
(14) RUS Form 790, Rev. 2-04, Electric System Construction
Contract--Non-Site Specific Construction. This form is used for limited
distribution construction accounted for under work order procedure.
(15) RUS Form 792b, Rev. 2-04, Certificate of Construction and
Indemnity Agreement. This form is used for the closeout of RUS Form
790.
(16) RUS Form 830, Rev. 2-04, Electric System Construction
Contract--Project Construction. This form is used for distribution and
transmission line project construction.
(d) List of guidance contract forms. RUS does not currently publish
any guidance forms for electric borrowers.
Subpart J--Contract Closeout
0
21. Amend Sec. 1726.401 by removing the introductory text.
0
22. Amend Sec. 1726.403 by revising the introductory text and paragraph
(c) to read as follows:
Sec. 1726.403 Project construction contract closeout.
This section is applicable to contracts executed on RUS Forms 200,
257, 786, and 830.
* * * * *
(c) Closeout documents. (1) Upon satisfactory completion of
construction (including all changes and corrections
[[Page 7111]]
by the contractor), the borrower (acting through its architect or
engineer, if applicable) will obtain executed copies of the following
documents:
(i) RUS Form 187, Certificate of Completion, Contract Construction.
(ii) RUS Form 213, ``Buy American'' certificate.
(iii) RUS Form 224, Waiver and Release of Lien, from each
manufacturer, supplier, and contractor which has furnished material or
services or both in connection with the construction.
(iv) RUS Form 231, Certificate of Contractor.
(v) RUS Form 254, Construction Inventory, including all supporting
documents, such as RUS Forms 254a-c, construction change orders, and
amendments for contracts executed on RUS Form 830.
(vi) Certification by the project architect or engineer in
accordance with Sec. 1726.403(a), if applicable.
(vii) Final design documents, as outlined in part 1724 of this
chapter.
(2) Distribution of closeout documents. (i) The borrower will
retain one copy of each of the documents identified in paragraph (c)(1)
of this section in accordance with applicable RUS requirements
regarding retention of records.
(ii) For contracts subject to RUS approval, the borrower will
submit the following closeout documents for RUS approval (through the
GFR except for generation projects):
(A) RUS Form 187, Certificate of Completion, Contract Construction.
(B) RUS Form 231, Certificate of Contractor.
(C) RUS Form 254, Construction Inventory, including all supporting
documents, such as RUS Forms 254a-c and construction change orders, for
contracts executed on RUS Form 830.
(iii) For contracts not subject to RUS approval, the closeout is
not subject to RUS approval. The borrower will send one copy of RUS
Form 187 to RUS for information prior to or in conjunction with the
applicable RUS Form 219, Inventory of Work Orders. The remaining
closeout documents need not be sent to RUS unless specifically
requested by RUS.
* * * * *
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23. Amend Sec. 1726.404 by revising the introductory text to read as
follows:
Sec. 1726.404 Non-site specific construction contract closeout.
This section is applicable to contracts executed on RUS Form 790.
* * * * *
PART 1755--TELECOMMUNICATIONS STANDARDS AND SPECIFICATIONS FOR
MATERIALS, EQUIPMENT, AND CONSTRUCTION
0
24. The authority citation for part 1755 continues to read as follows:
Authority: 7 U.S.C. 901 et seq., 1921 et seq., 6941 et seq.
0
25. Amend Sec. 1755.30 by revising paragraphs (c)(4) through (c)(8),
(c)(12) through (c)(14), (c)(17), and (c)(24) to read as follows:
Sec. 1755.30 List of telecommunications standard contract forms.
* * * * *
(c) * * *
(4) RUS Form 168b, issued 2-04, Contractor's Bond.
(5) RUS Form 168c, issued 2-04, Contractor's Bond.
(6) RUS Form 181a, issued 3-66, Certificate of Completion (Force
Account Construction).
(7) RUS Form 187, issued 2-04, Certificate of Completion, Contract
Construction.
(8) RUS Form 213, issued 2-04, Certificate (Buy American).
* * * * *
(12) RUS Form 224, issued 2-04, Waiver and Release of Lien.
(13) RUS Form 231, issued 2-04, Certificate of Contractor.
(14) RUS Form 238, issued 2-04, Construction or Equipment Contract
Amendment.
* * * * *
(17) RUS Form 257, issued 2-04, Contract to Construct Buildings.
* * * * *
(24) RUS Form 307, issued 2-04, Bid Bond.
* * * * *
Dated: January 30, 2004.
Hilda Gay Legg,
Administrator, Rural Utilities Service.
[FR Doc. 04-3115 Filed 2-12-04; 8:45 am]
BILLING CODE 3410-15-P