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.
