September 3, 2013
VIA HAND DELIVERY
Steven T. James
Clerk of the House of Representatives
24 Beacon Street, Room 145
Boston, MA 02133
RE: Proposed Amendments to 225 CMR 10; submission to General Court.
Dear Clerk James:
On behalf of the Massachusetts Department of Energy Resources, and in accordance with Section 12 of Chapter 25A of the Massachusetts General Laws (“Statute”), enclosed for filing please find proposed amendments to 225 CMR 10—Energy Management Services (EMS) Contract (“EMS Regulations”). The EMS Regulations provide the process for local governmental bodies to procure energy efficiency improvements for buildings and facilities, thereby saving them time and money in the procurement process and money in energy and water savings, once energy and water efficiency improvements are installed. The proposed amendments address the following: improve clarity, explicitly allow for the installation of “on-site electrical generation equipment,” and incorporate best industry practices.
These proposed revisions to the EMS Regulations are being submitted to your office for further action, after complying with all applicable provisions of Chapter 30A of the Massachusetts General Laws, except Section five. Also enclosed herewith is a document summarizing the proposed changes to the EMS Regulations, in layman’s terms, as required by the Statute.
Thank you for your attention to this matter.
Very truly yours,
The current regulation contains an outdated agency name and is missing updated definitions from the Green Communities Act (GCA). This section was updated or changed to coincide with agency name changes and definitions in the GCA. The revisions also include new definitions for “Guarantee of Savings,” “Guarantee of Generation,” and “Guidelines,” which are important to ensure adherence to requirements set forth in M.G.L. c. 25A, §11C.
Additional Changes Made In Response to Public Comments
Following comments received during the public comment period, DOER changed the reporting requirement period under the definition for “EMS Annual Report” from “60 days…” to “90 days after the anniversary of the of the Guaranteed Energy Performance Period.” Additionally, the definition of “Guaranteed Energy Savings” was changed to include the project as a whole.
Moreover, since energy saving performance is measured from an established baseline, a definition was added for “Established Baseline.” Finally, DOER added maximum term language to the definition of “Energy Management Services,” so that the contract duration may not exceed 20 years and reflect the useful life of the cost savings measures.
The regulation does not currently distinguish energy efficiency, conservation, and energy generation. This can cause confusion when referring to “energy savings” and the methods for calculating those savings as relates to the guarantee provided by the contracted. Therefore, the following changes have been included: under subsection (1) DOER separated energy efficiency and conservation from energy generation, as well as to better recognize that the saving and generating use distinct methods for calculating benefits. In addition, language was added in order to require more transparency in demonstrating the method by which savings are calculated and the elements that go into the calculation. In subsection (2), DOER included RFP Terms for On-site Generation, which mirror subsection section (1). In subsections (3) through (5) DOER extended time required for filing RFP with DOER from seven to 15 days to allow enough time for the agency to review and respond to the solicitation. DOER also expanded this section to clarify the steps for filing an RFP.
Additional Changes Made In Response to Public Comments
Following comments received during the public comment period, DOER revised subsection 10.03 (1)(e) to include not only Energy Conservation Measures but also Energy Conservation Projects. In addition, the regulation did not provide a specific period in which DOER would provide a response stating the status of filing. Therefore, this section was further revised to provide for a 10-day timeline for acknowledgment of whether the RFP is complete or incomplete.
10.05 Contract Terms
This section was expanded to include a standard detailed description of the energy conservation measures, methods of measuring energy savings against an established baseline, and means by which the contract will provide payment in the case of a savings shortfall.
10.06 Contract Amendments
The current regulation did not refer to filing requirement for amendments. This section is reworded to address the possibility of contract amendments not complying with the regulations and requires that filing amendments mirror the requirements for contracts.
10.07 Monitoring; Reporting Requirements
In this section, DOER Deleted the list of information required for annual energy savings reporting in the current regulation and instead simplified this section to provide for an online, downloadable form for the energy savings.
10.08 Enforcement, Complaint Processing Procedures; Disputes
The current regulation does not clearly address the methods for filing a complaint, what information should be submitted to effectively process a complaint, or define the steps for solution. Therefore, DOER added subsections (1) Document inspection and (2) Audit and site inspections, in order to better clarify DOER’s authority to investigate complaints and the procedures by which a violation is processed.
HOUSE . . . . . . . . . . . . . . . No. 3644
In the Year Two Thousand Thirteen
225 CMR 10.00
225 CMR 10.00: ENERGY MANAGEMENT SERVICES (EMS) CONTRACTS
10.01: Application; Purpose; Authority
10.03: Request for Proposals
10.04: Contract Award
10.05: Contract Terms
10.06: Contract Amendments
10.07: Monitoring; Reporting Requirements
10.08: Complaint Process Procedures; Disputes
10.01: Application and Purpose; Authority.
(1) Application and Purpose. 225 CMR 10.00 shall apply to the procurement of Energy Management Services, which may include On-site Generation, by a Local Governmental Body. Any dispute as to inclusion or exclusion within the provisions of 225 CMR 10.00 shall be determined by the Department of Energy Resources.
(2) Authority. 225 CMR 10.00 is promulgated under M.G.L. c. 25A, §11C.
Business Day. A business day shall mean Monday through Friday, exclusive of state and federal legal holidays.
Central Register. The publication maintained by the Secretary of the Commonwealth that publishes Notices of RFPs.
Certificate of Eligibility. A certificate provided by DCAM under M.G.L. c. 149, § 44D, indicating a contractor’s qualifications to perform Energy Management Services
Commissioner. The Commissioner of the Department of Energy Resources established by M.G.L. c. 25A §1.
Contractor. The vendor selected by the Local Governmental Body to perform the energy management services solicited through an RFP under this regulation.
DOER. The Department of Energy Resources, established by M.G.L. c. 25A, §1.
DCAM. The Division of Capital Asset Management and Maintenance, established by M.G.L. c. 7, § 4A.
Energy Audit. A systematic inspection, verification and determination of the energy consumption characteristics of a building or facility which: (1) identifies the type, size and rate of energy consumption of such building or facility and the major energy using systems of such building or facility; (2) determines appropriate energy conservation maintenance and operating procedures; and (3) indicates the need, if any, for the acquisition and installation of Energy Conservation Measures or On-site Energy Generation.
Energy Conservation. A modification of, or change in, the operation of real or personal property in a manner likely to improve the efficiency of energy use, and shall include Energy Conservation Measures and any Energy Audits to identify and specify energy and cost savings.
Energy Conservation Measures. Measures involving modifications of maintenance and operating procedures of a building or facility and installations therein, which are designed to reduce energy consumption in such building or facility, or the installation or modification of an installation in a building or facility which is primarily intended to reduce energy consumption.
Energy Conservation Projects. Projects to promote Energy Conservation, including but not limited to energy conserving modification to windows and doors; caulking and weather stripping; insulation, automatic energy control systems; hot water systems; equipment required to operate variable steam, hydraulic and ventilating systems; plant and distribution system modifications, including replacement of burners, furnaces or boilers; devices for modifying fuel openings; electrical or mechanical furnace ignition systems; utility plant system conversions; replacement or modification of lighting fixtures; energy recovery systems; on-site electrical generation equipment using new renewable generating sources as defined in section 11F; and cogeneration systems.
Energy Management Services (EMS). A program of services, including Energy Audits, Energy Conservation Measures, Energy Conservation Projects or a combination thereof, and building maintenance and financing services, primarily intended to reduce the cost of energy and water in operating buildings, which may be paid for, in whole or in part, by cost savings attributable to a reduction in energy and water consumption that result from such services. The EMS contract may extend for a term not to exceed twenty years. The allowable length of the contract may also reflect the useful life of the cost savings measures.
EMS Annual Report. A report form required by DOER that must be completed by the Local Governmental Body summarizing the energy or water unit and dollar cost savings. The initial report providing estimated savings must be filed along with the EMS contract and thereafter within 90 days after the anniversary of the Guaranteed Energy Performance Period.
Energy Savings. A measured reduction in fuel and its costs, energy and its costs, water and its costs, or operating or maintenance costs resulting from the implementation of Energy Conservation Measures or Projects; provided, however, that any payback analysis to evaluate the energy savings of a geothermal energy system to provide heating, cooling or water heating over its expected lifespan shall include gas and electric consumption savings, maintenance savings and shall use an average escalation rate based on the most recent information for gas and electric rates compiled by the Energy Information Administration of the United States Department of Energy.
Established Baseline. A written description of previous fuel, energy, and water consumption data and operating and maintenance costs for the past three years, including, but not limited to, future capital replacement expenditures avoided as a result of equipment installed or services performed. The description shall be included in the Request for Proposals.
Guarantee of Savings. The written guarantee of a Contractor, warranting the energy savings to be derived from a particular Energy Conservation Measure, Energy Conservation Project, Energy Management Services, or Energy Savings. Such written guarantee shall include a detailed description of the cost of the energy or water conservation or usage measures, all causally connected work, and ancillary improvements provided for in the contract. The guarantee shall state the annual savings expressed in applicable energy units or (if water savings) in gallons per year and be based on dollars saved by reference to established unit rates.
Guarantee of Generation. The written guarantee of a Contractor warranting the particular electrical energy generation to be derived from the On-site Electrical Generation unit. Such written guarantee shall: (1) include a detailed description of the equipment to be installed; and (2) state the annual amount of electrical energy to be generated in kilowatt hours per year.
Guaranteed Maximum Cost. The fixed maximum cost of the Energy Management Services, including: (1) the cost of each energy conservation measure, after installation, startup, and testing; and (2) the total payments made by a Local Governmental Body to a contractor, including but not limited to, the total capital investment and the contractor’s costs. Utility sponsored rebates, tax credits or other incentives, any direct governmental subsidies, interest payments, and energy and water cost savings shall not be deducted from the Guaranteed Maximum Cost.
Guidelines. A set of clarifications, interpretations, and procedures, including forms and model documents, developed and issued by DOER to assist it in determining compliance with 225 CMR 10.00. Each Guideline shall be effective on its date of issuance or on such date as is specified therein, except as otherwise provided in 225 CMR 10.00.
Local Governmental Body. A city, town, district, regional school district or county, or an agency or authority thereof, including a housing authority, board, commission, department or instrumentality of a city, town district, regional school district or county, and any other agency that is not a state agency or building authority; or a combination of 2 or more such cities, towns, districts, regional school districts or counties, or agencies or authorities thereof.
On-site Energy Generation. The generation of renewable energy or the cogeneration of electricity and heating or cooling of a generation unit located on or adjacent to a building or structure owned by a Local Governmental Body who utilizes some or all of the energy so generated either directly or indirectly though net metering, as defined in M.G.L. c 164 §138.
Renewable Generation. The electrical energy output of an RPS Class I Renewable Generation Unit or Solar Carve-Out Renewable Generation Unit as defined under 225 CMR 14.00.
Request for Proposals (RFP). A written document issued by a Local Governmental Body that invites potential Responsive Offerors to submit proposals outlining their qualifications to perform the Energy Management Services for the Local Governmental Body, a cost proposal, and other information required by 225 CMR 10.03(1) and (2) and the Local Governmental Body.
RFP Compliance Certification. A form prepared by DOER from time to time that is completed and signed by a duly authorized officer of the Local Governmental Body, certifying that the Local Governmental Body’s RFP for EMS is in full compliance with 225 CMR 10.00 and M.G.L. c.25A, §11C.
Responsive Offeror. A person who has submitted a proposal, which conforms in all respects to the Requests for Proposals and who possesses the skill, ability, and integrity necessary to faithfully perform the work, based upon a determination of competent workmanship and financial soundness in accordance with M.G. L. c. 149, §44D.
Update Statement. A form developed by DCAM, as defined in 810 CMR 4.01, to be completed by a General Contractor and submitted with all proposals.
10.03: Request for Proposals.
(1) RFP Terms. A Local Governmental Body shall solicit competitive sealed proposals through an RFP process. Except for those soliciting only On-Site Energy Generation, requirements set forth in Section 10.03(2) below, every RFP shall, at a minimum, include the information listed below:
(a) A general description of those buildings to be addressed by the RFP, including where applicable:
1. the general purpose for which the building is used, the physical location, and approximate hours of daily occupancy;
2. the approximate size, age and condition of the building envelope;
3. a general description of the heating and cooling systems including the approximate age, condition, and fuel type(s);
4. a general description of the heating and cooling distribution systems and control systems;
5. a general description of the lighting and lighting control systems; and
6. fuel, electricity, and water consumption data for the past three years.
(b) A general statement of the minimum scope of building improvements proposed by the Local Governmental Body;
(c) A request that the Responsive Offeror provide recommendations to address building improvements referenced in 225 CMR 10.03(1)(b), and where applicable, additional improvements for:
1. the building envelope;
2. the heating and cooling systems;
3. the lighting and control systems; and
4. any other recommendations for Energy Savings sought by the Local Governmental Body.
(d) A statement of objectives, identifying the Local Governmental Body’s priorities, on which the proposals will be evaluated. The statement of objectives may include Energy Savings, reducing energy and/or water consumption, funding major capital improvements, and improving building operating conditions;
(e) A request for price data on each proposed Energy and, if applicable, water Conservation Measure and Project that includes a breakdown of each Energy Conservation Measure and Project cost structure, mark-ups, overhead, and profit;
(f) A request for estimated Guarantee of Savings or Energy Savings based on the specified savings calculation methodology identified in the most recent version of the Federal Energy Management Program (FEMP) Guide for Measurement and Verification;
(g) A Certificate of Eligibility and the most current Update Statement;
(h) Minimum payment terms including, but not limited to, all payments to the Contractor; any related Energy Savings; revenues such as utility sponsored rebates; tax incentives or other incentives; and payments to the Local Governmental Body; and
(i) Minimum terms and conditions of the contract.
(2) RFP Terms For On-Site Energy Generation. A Local Governmental Body that is soliciting proposals for solely the construction of On-site Energy Generation shall be required to solicit competitive sealed proposals through an RFP Process. Every RFP shall at a minimum include the information listed below:
(a) A general description of those buildings or facilities to be addressed by the RFP, including:
1. the general purpose for which the building or facility is used, and approximate hours of daily occupancy;
2. any permitting requirements;
3. the conditions (surface, subsurface, and underground facilities) at the site; and
4. For rooftop installations, the approximate size, age and condition of the building, including the roof where the system will be mounted;
(b) A statement of objectives, identifying the Local Governmental Body’s priorities on which proposals will be evaluated;
(c) A request for price data on each proposed Renewable Energy system that includes a breakdown of cost structure;
(d) A request for estimated actual and Guarantee of Generation based on the specified savings calculation methodology in the most recent version of the Federal Energy Management Program (FEMP) Guide for Measurement and Verification,
(e) A Certificate of Eligibility and the most current Update Statement; and
(f) Minimum payment terms including, but not limited to, all payments to the Contractor; revenues such as utility sponsored rebates; tax incentives or other revenues which are factored in said payments; and payments to the Local Governmental Body.
(3) Notice of EMS Procurement. All Local Governmental Bodies shall file a Notice of EMS Procurement with DOER at least 15 Business Days prior to filing the RFP with the Secretary of the Commonwealth for publication in the Central Register. The Notice of EMS Procurement shall include a copy of the RFP, the contact information, the name of the Local Governmental Body, the physical address, the name and contact information for the Chief Procurement Officer, if applicable, or an alternative local governmental official with equivalent responsibilities, and the current phone number and email address for the person responsible for the RFP. The Local Governmental Body shall use the most current forms and associated instructions, including all required information, documentation, and assurances provided by DOER.
(4) Acknowledgment of Receipt. Upon receipt of a Notice of EMS Procurement, EMS Contract, or EMS Contract Amendment from a Local Governmental Body, DOER shall determine whether it is complete and satisfies all requirements.
(a) If such Notice is deemed incomplete, DOER shall identify all information necessary to complete the filing and notify the Local Governmental Body in writing within 10 Business Days of receipt.
Once DOER has deemed that the Notice of EMS Procurement, EMS Contract, or EMS Contract Amendment is complete, DOER shall, within 10 Business Days ofreceipt, email an Acknowledgement of Receipt to the contact person named in the Notice and the Chief Procurement Officer which does not constitute a review or approval of the RFP, EMS Contract, or EMS Contract Amendment by DOER.
(c) A Local Governmental Body shall not issue and publish an RFP, or execute an EMS Contract or Contract Amendment until the Local Governmental Body receives an Acknowledgment of Receipt from DOER.
(d) Publication by the Local Governmental Body of an RFP or execution of an EMS Contract or Contract Amendment prior to receipt of an Acknowledgment of Receipt shall be deemed to be a violation of the procurement process under 225 CMR 10.00, unless the Local Governmental Body has not received a response from DOER within 10 Business Days of receipt.
(5) Publication of RFP. A Local Governmental Body may only publish an RFP for EMS if the RFP process is in compliance with 225 CMR 10.00. Such publication of an RFP shall also comply with the requirements of M.G.L. c. 149, § 44J(1). Local Governmental Bodies are encouraged to provide longer than required posting and publication periods, when appropriate, to increase fair competition among Responsive Offerors.
(6) Response Opening and Evaluation.
(a) Response Opening: A Local Governmental Body shall open proposals publicly, in the presence of 2 or more witnesses, at the time specified in the request for proposals, and shall be available for public inspection.
(b) Response Evaluation: A Local Governmental Body shall evaluate each proposal and award each contract based solely on the criteria set forth in the request for proposals. Such criteria shall include, but not be limited to, all standards by which the local governmental body shall evaluate responsiveness, responsibility, qualifications of the offeror, technical merit and cost to the local governmental body.
10.04: Contract Award. A Local Governmental Body shall only award a contract for EMS if all the requirements of 225 CMR 10.00 have been met. At least 15 Business Days prior to execution of an EMS contract, the Local Governmental Body shall file with DOER a final copy of the contract along with DOER’s EMS Annual Report with projected energy and water cost savings estimates. Within 15 Business days after the contract is executed, the Local Governmental Body shall file an electronic copy of the executed contract with the Commissioner of DOER under the terms of EMS Contract Submission Guideline.
10.05: Contract Terms. The EMS contract shall conform to the terms included in the RFP, utilize the terms and conditions set forth in Guidelines established by DOER, and confirm to other terms required by law and by the Local Governmental Body. The Contract shall include, but not be limited to, the following provisions:
(1) A description of (a) each required Energy Conservation Measure, (b) each water conservation measure, and (c) each unit producing On-site Energy Generation, to be installed by the Contractor. Such description shall include the cost of each measure or unit, the Energy Savings, or in the case of On-site Energy Generation, the energy to be generated, and the method to be used to measure and verify said Energy Savings or energy generated that conform to the most recent standards established by the FEMP of the United States Department of Energy;
(2) Provisions that require all services and costs to be provided by the Contractor, including but not limited to, operation and maintenance services, measurement and verification services, and costs thereof, if applicable;
(3) The fixed Guaranteed Maximum Price;
(4) The fixed minimum Guarantee of Savings or in the case of On-Site Energy Generation, Guarantee of Generation, measured in the appropriate unit of energy when compared with an established baseline of previous fuel, energy, water and operating or maintenance costs, including, but not limited to, future capital replacement expenditures avoided as a result of equipment installed or services performed;
(4) The method to make the Local Governmental Body whole in the case of Guaranteed Savings or Generation shortfall, to be determined annually;
(5) The payment terms.
10.06: Contract Amendments. A contract may be amended, so long as the contract as amended does not exceed the scope of the RFP, and does not violate the requirements established in M.G.L. c.25A, §11C this regulation, and all other applicable laws of the Commonwealth, including Executive Orders and relevant guidance. The Local Governmental Body shall file a copy of a contract amendment with DOER on or before 10 Business Days before the effective date of the applicable contract amendment.
10.07: Monitoring; Reporting Requirements. For the duration of the contract term, the Local Governmental Body shall annually file with DOER an Annual Report utilizing the Guidelines established by DOER. Said Annual Report shall be filed not later than 90 days from the first anniversary of the effective date of the contract, and every year thereafter on the same date, ending with a final report on the contract termination date, or anytime before six months after the contract termination date.
10.08: Enforcement, Complaint Processing Procedures; Disputes.
(1) Document Inspection: DOER may audit the accuracy of all information submitted under 225 CMR 10.00. The Department may request and obtain from any Local Governmental Body or Contractor information that the Department determines necessary to monitor compliance with and enforcement of 225 CMR 10.00.
(2) Audit and Site Inspection: Upon reasonable notice to a Local Governmental Body or Contractor, DOER may conduct audits, which may include inspection and copying of records and/or site visits, including but not limited to, all files and documents that DOER determines are related to compliance with 225 CMR 10.00.
(3) DOER shall investigate any complaints of non-compliance with M.G.L. c. 25A, §11C and 225 CMR 10.00 subject to the following procedures and requirements:
(a) Any person may file with DOER a complaint of non-compliance with the requirements of M.G.L. c. 25A, §11C and 225 CMR 10.00.
(b) The complaint shall be in writing, mailed to the Commissioner and the relevant Local Governmental Body, certified mail return receipt requested, and shall include the following information:
1. the name, address, email address, and phone number of the person filing the complaint;
2. the name of the entity about whom the complaint is filed;
3. a detailed description of the nature of the alleged non-compliance, including but not limited to, all applicable dates, the applicable statutory and regulatory requirement(s) allegedly violated, and names of any other persons involved in and aggrieved by the non-compliance;
4. a statement demonstrating that the complaint has been brought to the attention of the Local Governmental Body and describing all previous efforts to resolve or correct the non-compliance with the Local Governmental Body; and,
5. any supporting documentation.
(4) Upon receiving a written complaint which complies with the requirements established in 225 CMR 10.08(3) or upon its own initiative, DOER shall conduct an investigation if it has reasonable cause to believe a violation has occurred.
(5) DOER shall notify the Local Governmental Body or individual that is the subject of the complaint of the alleged violation and the existence of the investigation within a reasonable period of time.
(6) After giving such notice, DOER may:
(a) Contact the person filing the complaint to request additional information;
(b) Request information, including existing documentation and verbal or written explanations, from the Local Governmental Body regarding the complaint; and
(c) Contact other persons, including Responsive Offerors and the selected Contractor, to seek additional information regarding the complaint. All persons including but not limited to Responsive Offerors, Local Governmental Bodies, and Contractors, involved in the RFP procurement which is the subject of the complaint, shall comply fully with any such investigation and provide such information as DOER may require.
(7) If DOER determines after its initial investigation that there has been no violation of M.G.L. c. 25A §11C or 225 CMR 10.00, then DOER shall terminate the investigation and notify the subject of the complaint of its finding, in writing.
(8) If DOER determines after its initial investigation concludes that there is evidence to support its investigative conclusion that a violation occurred, DOER shall conduct a hearing under 801 CMR 1.00 et seq. The hearing shall determine whether there was a violation of G.L. c. 25A §11C or 225 CMR 10.00.
(9) If, after a hearing, there is a finding that a violation did occur, the Commissioner may order:
(a) Immediate and future compliance with G.L. c. 25A, §11C or 225 CMR 10.00;
(b) Any specific action to correct the violation;
(c) Nullification of any actions taken, including issued RFPs, or executed contracts; or,
(d) Other appropriate action.
(10) DOER may forward its findings and any order to the Attorney General or Inspector General for further investigation.
(11) The Commissioner may seek enforcement of any Order issued under 225 CMR 10.00 in the Superior Court of Suffolk County.
(1) The Commissioner of DOER may grant a waiver from one or more provisions or requirements of 225 CMR 10.00 upon written request of a Local Governmental Body and a showing of special or exceptional circumstances or need, provided that such written request shall at a minimum meet the following conditions:
(a) The waiver request must be in writing, signed by the Chief Executive Officer, or a designee, of the Local Governmental Body, specifying the provisions of 225 CMR 10.00 to be waived;
(b) The written waiver request must be mailed to the Commissioner by certified mail, return receipt requested;
(c) The waiver request must provide a detailed explanation of why the waiver should be granted, including all documentation supporting the special circumstances or need for such waiver including all information and documentation required by DOER; and
(d) The waiver request must include a statement that the Local Governmental Body has made a good faith effort to comply with the applicable requirements of 225 CMR 10.00.
(2) Any waiver granted by the Commissioner of DOER shall not relieve the Local Governmental Body from any responsibility or obligation to comply with the other provisions of 225 CMR 10.00 or any other requirement of law.
10.10: Severability. If any provision of 225 CMR 10.00 is declared or found to be illegal, unenforceable or void, Local Governmental Bodies shall be relieved of all obligations under that provision only, and all other provisions shall remain in full force and effect.
225 CMR 10.00: M.G.L. c.25A, §11C.