42 U.S.C. § 8287 : US Code - Section 8287: Authority to enter into contracts

Search 42 U.S.C. § 8287 : US Code - Section 8287: Authority to enter into contracts

(a) In general
(1) The head of a Federal agency may enter into contracts under
this subchapter solely for the purpose of achieving energy savings
and benefits ancillary to that purpose. Each such contract may,
notwithstanding any other provision of law, be for a period not to
exceed 25 years. Such contract shall provide that the contractor
shall incur costs of implementing energy savings measures,
including at least the costs (if any) incurred in making energy
audits, acquiring and installing equipment, and training personnel,
in exchange for a share of any energy savings directly resulting
from implementation of such measures during the term of the
contract.
(2)(A) Contracts under this subchapter shall be energy savings
performance contracts and shall require an annual energy audit and
specify the terms and conditions of any Government payments and
performance guarantees. Any such performance guarantee shall
provide that the contractor is responsible for maintenance and
repair services for any energy related equipment, including
computer software systems.
(B) Aggregate annual payments by an agency to both utilities and
energy savings performance contractors, under an energy savings
performance contract, may not exceed the amount that the agency
would have paid for utilities without an energy savings performance
contract (as estimated through the procedures developed pursuant to
this section) during contract years. The contract shall provide for
a guarantee of savings to the agency, and shall establish payment
schedules reflecting such guarantee, taking into account any
capital costs under the contract.
(C) Federal agencies may incur obligations pursuant to such
contracts to finance energy conservation measures provided
guaranteed savings exceed the debt service requirements.
(D) A Federal agency may enter into a multiyear contract under
this subchapter for a period not to exceed 25 years, without
funding of cancellation charges before cancellation, if -
(i) such contract was awarded in a competitive manner pursuant
to subsection (b)(2) of this section, using procedures and
methods established under this subchapter;
(ii) funds are available and adequate for payment of the costs
of such contract for the first fiscal year;
(iii) 30 days before the award of any such contract that
contains a clause setting forth a cancellation ceiling in excess
of $10,000,000, the head of such agency gives written
notification of such proposed contract and of the proposed
cancellation ceiling for such contract to the appropriate
authorizing and appropriating committees of the Congress; and
(iv) such contract is governed by part 17.1 of the Federal
Acquisition Regulation promulgated under section 421 of title 41
or the applicable rules promulgated under this subchapter.
(b) Implementation
(1)(A) The Secretary, with the concurrence of the Federal
Acquisition Regulatory Council established under section 421(a) of
title 41, not later than 180 days after October 24, 1992, shall, by
rule, establish appropriate procedures and methods for use by
Federal agencies to select, monitor, and terminate contracts with
energy service contractors in accordance with laws governing
Federal procurement that will achieve the intent of this section in
a cost-effective manner. In developing such procedures and methods,
the Secretary, with the concurrence of the Federal Acquisition
Regulatory Council, shall determine which existing regulations are
inconsistent with the intent of this section and shall formulate
substitute regulations consistent with laws governing Federal
procurement.
(B) The procedures and methods established pursuant to
subparagraph (A) shall be the procedures and contracting methods
for selection, by an agency, of a contractor to provide energy
savings performance services. Such procedures and methods shall
provide for the calculation of energy savings based on sound
engineering and financial practices.
(2) The procedures and methods established pursuant to paragraph
(1)(A) shall -
(A) allow the Secretary to -
(i) request statements of qualifications, which shall, at a
minimum, include prior experience and capabilities of
contractors to perform the proposed types of energy savings
services and financial and performance information, from firms
engaged in providing energy savings services; and
(ii) from the statements received, designate and prepare a
list, with an update at least annually, of those firms that are
qualified to provide energy savings services;
(B) require each agency to use the list prepared by the
Secretary pursuant to subparagraph (A)(ii) unless the agency
elects to develop an agency list of firms qualified to provide
energy savings performance services using the same selection
procedures and methods as are required of the Secretary in
preparing such lists; and
(C) allow the head of each agency to -
(i) select firms from the list prepared pursuant to
subparagraph (A)(ii) or the list prepared by the agency
pursuant to subparagraph (B) to conduct discussions concerning
a particular proposed energy savings project, including
requesting a technical and price proposal from such selected
firms for such project;
(ii) select from such firms the most qualified firm to
provide energy savings services based on technical and price
proposals and any other relevant information;
(iii) permit receipt of unsolicited proposals for energy
savings performance contracting services from a firm that such
agency has determined is qualified to provide such services
under the procedures established pursuant to paragraph (1)(A),
and require agency facility managers to place a notice in the
Commerce Business Daily announcing they have received such a
proposal and invite other similarly qualified firms to submit
competing proposals; and
(iv) enter into an energy savings performance contract with a
firm qualified under clause (iii), consistent with the
procedures and methods established pursuant to paragraph
(1)(A).
(3) A firm not designated as qualified to provide energy savings
services under paragraph (2)(A)(i) or paragraph (2)(B) may request
a review of such decision to be conducted in accordance with
procedures to be developed by the board of contract appeals of the
General Services Administration.
(c) Sunset requirements
The authority to enter into new contracts under this section
shall cease to be effective on October 1, 2016.