Section .0100 – General Provisions

Link to law: http://reports.oah.state.nc.us/ncac/title 01 - administration/chapter 41 - state energy office/subchapter b/subchapter b rules.html
Published: 2015

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SUBCHAPTER 41b – GUARANTEED ENERGY SAVINGS CONTRACTS

 

SECTION .0100 – GENERAL PROVISIONS

 

01 ncac 41b .0101          RESPONSIBILITY

 

History Note:        Authority G.S. 143-64.17A(c1); 143-64.17F;

143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004.

01 NCAC 41B .0102          SCOPE

This Subchapter shall apply to State governmental units

engaging in guaranteed energy savings contracts.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

143-64.17A (c1);

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 ncac 41b .0103          RULE MAKING AUTHORITY

 

History Note:        Authority G.S. 143-64.17A(c1); 143-64.17F;

143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004.

 

01 NCAC 41B .0104          DEFINITIONS

For the purposes of this Chapter, the following definitions

apply:

(1)           Terms used herein that are defined in G.S.

143-64.17 shall have the same definitions as in G.S. 143-64.17.

(2)           "Agency."  A North Carolina State governmental unit that is soliciting, through a Request for Proposals (RFP), to enter

into a guaranteed energy savings contract.

(3)           "Annual reconciliation statement." A

report disclosing shortfalls or surplus between guaranteed energy and

operational savings specified in the guaranteed energy savings contract and

actual energy and operational savings incurred during each 12 month term

commencing from the time that the energy conservation measures became fully

operational.

(4)           "Contract."  A guaranteed energy savings

contract.

(5)           "Offer."  The response to an RFP means

the same as "bid" or "proposal."

(6)           "Investment grade audit" or

"investment grade analysis."  A cost-benefit analysis of energy

efficiency investments including a review of potential cost savings through

operation and maintenance changes.

(7)           "Life-cycle cost analysis."  A method for

estimating the total cost of an energy-using component or building over its

useful life, including cost factors such as purchase price, or construction,

renovation, or leasing costs, energy use, maintenance, interest, and inflation.

(8)           "Measurement and verification review." 

An examination of energy measures installed under each contract, using

methodology to measure the operation of energy-using systems before and after

change, to verify the performance and savings of the installed equipment.

(9)           "Qualified provider."  A person,

business, or organization experienced in the design, implementation, and

installation of energy conservation measures and determined by the

administering and contracting agencies to have the capability in all respects

to fully perform the contract requirements.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

143-64.17A(c1);

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

SECTION .0200 – RESERVED FOR FUTURE CODIFICATION

 

SECTION .0300 – SOLICITATIONS

 

01 NCAC 41B .0301          NORTH CAROLINA PRODUCTS

A preference for North Carolina products and services

provided by North Carolina residents pursuant to G.S. 143-59 shall apply to

Guaranteed Energy Savings Contracts.  

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0302          SOLICITATION DOCUMENTS

(a)  Agencies shall solicit for guaranteed energy savings

contracts through a Request for Proposal (RFP).

(b)  Agencies may use the RFP template available from the

State Energy Office at MSC 1340, Raleigh, NC  27699-1340.

(c)  Solicitation documents shall include a Treasurer's

estimated cost of financing.

(d)  Solicitation documents may allow for qualified provider

or third party financing.

(e)  Solicitation documents may include a copy of the

Facilities Condition Assessment Program (FCAP) report covering part or all of

the facilities subject to the solicitation.

(f)  Solicitation documents shall state the evaluation

criteria specified by G.S. 143-64.17A (b) and (d) as well as those in this

Chapter.  The documents shall also state the criteria weighting defined by the

agency for each particular project.  Weighting may change from one RFP to

another RFP from an agency based upon the particular needs of that agency.

(g)  Solicitation documents shall stipulate that employee or

time savings cannot be included in the offer unless a position is eliminated as

a result of contract implementation.

(h)  Solicitation documents shall stipulate that the

qualified provider is responsible for all costs incurred in preparing the initial

proposal.

(i)  Solicitation documents shall stipulate that the

contractor cannot include costs or allowances for contingencies in the

contract.

(j)  Solicitation documents may include a three-year history

of usage and billing for all utilities for the facilities subject to the

proposal.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0303          TREASURER'S COST ESTIMATE OF FINANCING

Agencies shall obtain an estimate of financing cost from the

Director of Debt Management, Office of the Treasurer.  This estimate shall not

be binding upon the State and is subject to change by the Office of the

Treasurer.  The Office of the Treasurer may reject any potential contract if

the actual cost of financing has exceeded the estimated cost of financing when

the contract is submitted to the Office of the Treasurer for approval.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0304          GENERAL FUND PREFERENCE

(a)  The agency shall give preference to projects where the

energy costs are paid through General Fund appropriations as compared to receipts,

or federal funds, or other sources.  This preference shall be stipulated in the

solicitation documents.

(b)  Solicitation documents shall include, when feasible, a

breakdown of the source of funds for energy costs and shall direct the vendors

to break down savings by source of funds if the aforementioned information is

included in the solicitation document.

(c)  The Council of State may give preference to projects

where the energy costs are paid through General Fund appropriations as compared

to receipts, or federal funds, or other sources.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0305          PROHIBITION ON FEDERAL FUNDS

The agency shall not solicit proposals for projects that

include payment from federal funds unless the agency has obtained, and includes

in both the solicitation and contract, documentation from the Federal Government

or the Office of State Controller stating that the use of federal funds for

payment of the contract is authorized.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0306          ADVERTISEMENT REQUIREMENTS

In addition to advertising requirements stated in G.S.

143-64.17A(a), agencies shall send a copy to the State Energy Office at MSC

1340, Raleigh, NC 27699 and shall include in the notification instructions on

how to obtain the complete solicitation.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0307          CONFERENCES/SITE VISITS

Agencies may conduct vendor conferences and site visits

before the Request for Proposals closing date.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. July 1, 2004.

 

SECTION .0400 - PRECERTIFICATION OF PROVIDERS

 

01 ncac 41b .0401          INFORMATION REQUIRED FOR

PRECERTIFICATION

01 ncac 41b .0402          PRECERTIFICATION EVALUATION

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004.

 

SECTION .0400 - PRECERTIFICATION OF PROVIDERS

 

01 NCAC 41B .0401          INFORMATION REQUIRED FOR

PRECERTIFICATION

Organizations may establish capability to provide services

under performance contracts with state agencies by providing the following

information to the State Energy Office:

(1)           past experience with energy performance contracting

with a minimum of three years operation and completed installation of a minimum

of three projects;

(2)           performance contracting experience and resumes of

individuals expected to work on North Carolina projects including a minimum of

one professional engineer licensed in North Carolina;

(3)           summary information, with client contact

information, on all performance contracting projects in North Carolina during

the previous five years listing only completed projects with at least one year

in repayment;

(4)           summary information, with client contact

information, on all performance contracts with any state government agencies in

the United States with a maximum of five projects for each of the previous five

years;

(5)           summary information, with client contact

information, on any  performance contracting projects which resulted in the

company paying energy costs to clients;

(6)           summary of the history and operation of the

business and organization, including volume, bonding capacity and type of

clients; and

(7)           financial statements of the performance contracting

organization and (if applicable) parent company for the previous two years.

 

History Note:        Authority G.S. 143-64.17F

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0402          PRECERTIFICATION EVALUATION

Organizations shall present information required for

precertification to the State Energy Office with a request for consideration

for inclusion as a precertified entity.  The State Energy Office shall offer a

precertification period for providers at three-year intervals.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0403          CONTESTING PRECERTIFICATION

(a)  If the State Energy Office denies an organization's

request for precertification, a written appeal from the organization may be

provided by the organization within 60 days after date of notification of the

denial.  A letter appealing the decision may be filed with:

Director, State Energy Office

North Carolina Department of

Administration

1830A Tillery Place MSC 1340

Raleigh, North Carolina 27699-1340

(b)  In the event that an organization wishes to contest the

case further, contested case hearings are available as provided in G.S. 150B,

and petitions for contested case hearings shall be filed in accordance with the

provisions of that Chapter.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0404          PUBLISHED LIST OF PRECERTIFIED

ENTITIES

Organizations precertified by the State Energy Office to

provide services under performance contracts may be included on a list

available on the Website of the State Energy Office at http://www.energync.net.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0405          PRECERTIFIED ENTITY RESTRICTION

Only precertified organizations may enter into a performance

contract with a state governmental agency.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

SECTION .0500 - EVALUATION, SELECTION, AND AWARD

 

01 NCAC 41B .0501          LATE OFFERS, MODIFICATIONS, OR

WITHDRAWALS

No late offer, late modification, or late withdrawal shall

be considered unless received before contract award, and the offer,

modification, or withdrawal would have been timely but for the action or

inaction of agency personnel.  The offeror shall have his offer delivered on

time, regardless of the mode of delivery used, including the U.S. Postal

Service or any other delivery services available.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0502          EXTENSION OF ACCEPTANCE TIME

Companies may be requested to extend the time offered for

the acceptance of offers.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0503          ERROR/CLARIFICATION

When an offer contains an obvious error or otherwise where

an error is suspected, the circumstances may be investigated and then may be

considered and acted upon.  Any action taken shall not prejudice the rights of the

public or other offering companies.  Where offers are submitted substantially

in accordance with the request for response document but are not entirely clear

as to intent or to some particular fact or where there are other ambiguities,

clarification may be sought and accepted provided that, in doing so, no change

is permitted in prices.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0504          BASIS FOR REJECTION

In soliciting offers, any and all offers received may be

rejected.  Bases for rejection shall include, but are not limited to, the offer

being deemed unsatisfactory as to the quantity, quality, delivery, price or service

offered; the offer not complying with conditions in the RFP or with the intent

of the proposed contract; lack of competitiveness by reason of collusion;

error(s) in specifications or indication that revision(s) would be to the

state's advantage; cancellation of or changes in the intended project or other

determination that the proposed requirement is no longer needed; limitation or

lack of available funds; circumstances which prevent determination of the

lowest responsible or most advantageous offer; or any determination that

rejection would be to the best interest of the state.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expires April 27, 2004;

Eff. August 1, 2004.

 

01 NCAC 41B .0505          PUBLIC RECORD

Action in rejecting offers shall be made a matter of record.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0506          RECIPROCAL PREFERENCE

(a)  01 NCAC 05B .1522(a), (b), (c), (d), and (g) shall

apply to this Subchapter.

(b)  If the use of the reciprocal preference changes which

bidder is the low bidder, the agency may waive the use of the reciprocal preference,

after consultation with the Council of State, and after taking into

consideration such factors as, competition, price, product origination, and

available resources.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0507          PROPOSAL EVALUATION

(a)  Evaluation criteria shall include those specified by

G.S. 143-64.17A(b) and (d).

(b)  Evaluation criteria for the proposal shall also include

the following:

(1)           Life cycle cost analysis as defined in G.S.

143-64.15.

(2)           Certification by a registered engineer that

the measurement and verification protocol presented in the proposal is capable

of measuring actual or projected savings.

(3)           A process of annual third party measurement

and verification of savings in accordance with the pre-defined and certified

protocol found in 01 NCAC 41B .0510.  The cost of this process shall be

included in the total cost of the contract.

(4)           The total cost based on Office of Treasurer

cost of financing estimate and cost based on Qualified Provider or third party

financing in the response.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0508          PRE-AWARD REPORTS

Before the award of a guaranteed energy savings contract,

the qualified provider shall provide a report, as part of its proposal, which

shall be available for public inspection, summarizing estimates of all costs of

installation, maintenance, repairs and debt service and estimates of the

amounts by which energy or operating costs will be reduced.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 ncac 41b .0509          TABULATIONS AND ABSTRACTS

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004.

 

01 NCAC 41B .0510          MEASUREMENT AND VERIFICATION

Any guaranteed energy and operational savings shall be

determined by using one of the measurement and verification methodologies

listed in the United States Department of Energy's "Measurement and

Verification Guideline for Energy Savings Performance Contracting," the

"International Performance Measurement and Verification Protocol," or

"ASHRAE 14-2002."  If due to existing data limitations or the

nonconformance of specific project characteristics, none of the measurement and

verification methodologies listed above is sufficient for measuring guaranteed

savings, the qualified provider shall develop an alternate method that is

compatible with one of the three and mutually agreeable with the agency.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0511          CONTRACT EXECUTION

Contract execution by the successful companies shall occur

upon contract award and before the agency sends the documents to the Office of

State Budget and Management.  Contracts shall stipulate that the execution is contingent

upon approval and financing.  Upon execution, the agency shall forward the

documents to the Capital Improvement Section of the Office of State Budget and

Management with a copy to the Director of the State Energy Office.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

SECTION .0600 – RESERVED FOR FUTURE CODIFICATION

 

SECTION .0700 – APPROVAL

 

01 NCAC 41B .0701          OFFICE OF STATE BUDGET AND MANAGEMENT

CERTIFICATION

The Office of State Budget and Management (OSBM) shall

certify, within 10 business days of receipt, expected availability of resources

and set up appropriate reserve accounts or other accounting procedures to

transfer funds from the agency to the Office of the Treasurer for payment. 

Upon certification, the OSBM shall forward the documentation to the Office of

the Treasurer's Director of Debt Management.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

01 NCAC 41B .0702          OFFICE OF THE TREASURER APPROVAL

The Office of the Treasurer shall, within 10 business days

of receipt, review the documentation and select the desired financing option. 

Upon review and selection, the Treasurer shall forward the documentation to the

Secretary of the Department of Administration.

 

History Note:        Authority G.S. 143-64.17F;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.

 

SECTION .0800 – RESERVED FOR FUTURE CODIFICATION

 

SECTION .0900 - POST-APPROVAL PROCEDURES

 

01 NCAC 41B .0901          ANNUAL REPORTS AND INSPECTIONS

(a)  The State Energy Office may inspect any and all

documentation and facilities it deems appropriate at the agency to determine

the effectiveness of the guaranteed energy savings contract and to provide

information to the Council of State and the General Assembly on the

effectiveness of the contract.

(b)  Agencies failing to provide documentation to the State

Energy Office as requested, shall be reported to the Council of State and shall

be prohibited from engaging in further energy savings contracts until the

deficient documentation is provided to the State Energy Office.

(c)  Requested information, by definition, includes timely

submission of the "Annual Report of Savings Report" available from

the State Energy Office at 1340 MSC, Raleigh, NC 27699-1340.

 

History Note:        Authority G.S. 143-64.17F; 143-64.17H;

Temporary Adoption Eff. August 1, 2003;

Temporary Adoption Expired April 27, 2004;

Eff. July 1, 2004.