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H0251......................................................by STATE AFFAIRS ENERGY SAVING PERFORMANCE CONTRACTS - Amends and adds to existing law to provide for energy saving performance contracts; to provide that certain sections of the Idaho Code shall not apply to energy savings contracts; to define terms; to provide for requests for qualification; to provide for notice; to provide for public inspection; to provide for awards of performance contracts; to provide for installment payment agreements and lease-purchase agreements; to provide for terms of performance contracts; and to provide for monitoring and reports. 02/14 House intro - 1st rdg - to printing 02/15 Rpt prt - to St Aff 02/26 Rpt out - rec d/p - to 2nd rdg 02/27 2nd rdg - to 3rd rdg 02/28 3rd rdg - PASSED - 66-1-3 AYES -- Barraclough, Barrett, Bedke, Bell, Bieter, Black, Boe, Bolz, Bradford, Bruneel, Callister, Campbell, Chase, Clark, Collins, Crow, Cuddy, Deal, Denney, Ellis, Ellsworth, Eskridge, Field(13), Field(20), Gagner, Gould, Hadley, Hammond, Harwood, Henbest, Higgins, Hornbeck, Jaquet, Jones, Kellogg, Kendell, Kunz, Lake, Loertscher, Mader, Marley, McKague, Meyer, Montgomery, Mortensen, Moss, Moyle, Pearce, Pischner, Pomeroy, Raybould, Ridinger, Roberts, Robison, Sali, Schaefer, Sellman, Shepherd, Smith, Smylie, Stevenson, Stone, Trail, Wheeler, Wood, Young NAYS -- Langford Absent and excused -- Swan, Tilman, Mr. Speaker Floor Sponsor -- Kunz Title apvd - to Senate 03/01 Senate intro - 1st rdg - to St Aff 03/08 Rpt out - rec d/p - to 2nd rdg 03/09 2nd rdg - to 3rd rdg 03/20 3rd rdg - PASSED - 35-0-0 AYES -- Andreason, Boatright, Branch, Brandt, Bunderson, Burtenshaw, Cameron, Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Geddes, Goedde, Hawkins, Ingram, Ipsen, Keough, King-Barrutia, Lee, Lodge, Noh, Richardson, Risch, Sandy, Schroeder, Sims, Sorensen, Stegner, Stennett, Thorne, Wheeler, Whitworth, Williams, NAYS -- None Absent and excused -- None Floor Sponsor -- Sandy Title apvd - to House 03/21 To enrol 03/22 Rpt enrol - Sp signed - Pres signed - to Gov 03/28 Governor signed Session Law Chapter 213 Effective: 07/01/01
|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-sixth Legislature First Regular Session - 2001IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 251 BY STATE AFFAIRS COMMITTEE 1 AN ACT 2 RELATING TO ENERGY SAVINGS PERFORMANCE CONTRACTS; AMENDING SECTION 67-5711, 3 IDAHO CODE, TO PROVIDE THAT CERTAIN BIDDING PROCEDURES SHALL NOT APPLY TO 4 PERFORMANCE CONTRACTS AND TO MAKE TECHNICAL CORRECTIONS; AMENDING SECTION 5 67-5711C, IDAHO CODE, TO PROVIDE A CODE CITATION AND TO MAKE TECHNICAL 6 CORRECTIONS; AND AMENDING CHAPTER 57, TITLE 67, IDAHO CODE, BY THE ADDI- 7 TION OF A NEW SECTION 67-5711D, IDAHO CODE, TO DEFINE TERMS, TO PROVIDE 8 FOR PERFORMANCE CONTRACTS, TO PROVIDE FOR REQUESTS FOR QUALIFICATIONS, TO 9 PROVIDE FOR NOTICE, TO PROVIDE FOR PUBLIC INSPECTION, TO PROVIDE FOR 10 AWARDS OF PERFORMANCE CONTRACTS, TO PROVIDE FOR INSTALLMENT PAYMENT AGREE- 11 MENTS AND LEASE-PURCHASE AGREEMENTS, TO PROVIDE FOR TERMS OF PERFORMANCE 12 CONTRACTS AND TO PROVIDE FOR MONITORING AND REPORTS. 13 Be It Enacted by the Legislature of the State of Idaho: 14 SECTION 1. That Section 67-5711, Idaho Code, be, and the same is hereby 15 amended to read as follows: 16 67-5711. CONSTRUCTION, ALTERATION, EQUIPPING, FURNISHING AND REPAIR OF 17 PUBLIC BUILDINGS AND WORKS. The director of the department of administration, 18 or his designee, of the state of Idaho, is authorized and empowered, subject 19 to the approval of the permanent building fund advisory council, to provide or 20 secure all plans and specifications for, to let all contracts for, and to have 21 charge of and supervision of the construction, alteration, equipping and fur- 22 nishing, repair, maintenance other than preventive maintenance of any and all 23 buildings, improvements of public works of the state of Idaho, the cost of 24 which construction, alteration, equipping and furnishing, repair, maintenance 25 other than preventive maintenance exceeds the sum of thirty thousand dollars 26 ($30,000) for labor, materials and equipment, which sum shall exclude design 27 costs, bid advertising and related bidding expenses, provided, that the direc- 28 tor or his designee, and permanent building fund advisory council shall, in 29 the letting of contracts under this section, comply with the procedure for the 30 calling of bids provided in section 67-5711C, Idaho Code; provided, however, 31 that this section shall not apply to the construction, alteration, equipping 32 or furnishing or repair or maintenance other than preventive maintenance of 33 public buildings under the jurisdiction and control of the board of regents of 34 theUuniversity of Idaho; provided further, that the bidding procedures 35 required by this section and section 67-5711C, Idaho Code, shall not apply to 36 performance contracts as provided in section 67-5711D, Idaho Code; provided 37 further, that public works for the Idaho transportation department, the 38 department of fish and game, the department of parks and recreation, and the 39 department of lands, except for administrative office buildings and all asso- 40 ciated improvements, are exempt from the provisions of this section that 41 relate to the administration and review of such projects by the director of 42 the department of administration or his designee and by the permanent building 43 fund advisory council. This exemption shall not relieve the Idaho transporta- 2 1 tion department, the department of fish and game, the department of parks and 2 recreation, and the department of lands in the letting of contracts for public 3 works, from complying with the procedures of section 67-5711C, Idaho Code, 4 related to the advertising and bidding for contracts. The permanent building 5 fund advisory council may adopt rules consistent with existing law, including 6 rules for a program of inspection and maintenance, to carry out the provisions 7 of this act. 8 SECTION 2. That Section 67-5711C, Idaho Code, be, and the same is hereby 9 amended to read as follows: 10 67-5711C. CONSTRUCTION OF PUBLIC PROJECTS -- COMPETITIVE SEALED BIDDING. 11 (1) All construction contracts for public works shall be awarded to the lowest 12 responsible and responsive bidder after receipt of competitive sealed bidding 13 except as otherwise provided in sections 67-57131B, 67-5711D and 67-5711B3, 14 Idaho Code. 15 (2) An invitation for bids shall be issued and shall include a project 16 description and all contractual terms and conditions applicable to the public 17 works. 18 (3) Adequate public notice of the invitation for bids shall be given at 19 least fourteen (14) days prior to the date set forth therein for the opening 20 of bids. Such notice shall include publication at least fourteen (14) days 21 prior to bid opening in a newspaper of general circulation in the area where 22 the work is located. 23 (4) Bids shall be opened publicly at the time and place designated in the 24 invitation for bids. The amount of each bid and such other relevant informa- 25 tion as may be specified by rules, together with the name of each bidder, 26 shall be entered on a record and the record shall be open to public inspec- 27 tion. After the time of the award all bids and bid documents shall be open to 28 public inspection in accordance with the provisions of sections 9-337 through 29 9-347 and 67-5725, Idaho Code. 30 (5) With respect to a project having a written cost estimate of greater 31 than two thousand five hundred dollars ($2,500) but less than the public works 32 limit established in section 67-5711, Idaho Code, the agency, if it does not 33 perform the work with existing physical plant staff, must award a written con- 34 tract to the lowest responsible and responsive bidder after soliciting at 35 least three (3) documented informal bids from contractors licensed in Idaho to 36 perform public works contracts, if reasonably available. Adequate public 37 notice of the invitation for informal bids shall be given at least seven (7) 38 days prior to the date set forth therein for the receipt of the informal bids. 39 Such notice may include publication at least seven (7) days prior to bid open- 40 ing in a newspaper of general circulation in the area where the work is 41 located; or the agency may advertise the invitation for bids in appropriate 42 trade journals, and otherwise notify persons believed to be interested in the 43 award of a contract. Informal bids must be submitted by the contractor in 44 writing in response to a prepared written document describing the project's 45 scope of work in sufficient detail so as to enable a contractor familiar with 46 such work to prepare a responsible bid. Nothing herein exempts an agency from 47 the responsibility of utilizing formal plans and specifications if the work 48 involves the public health or safety as described in chapters 3 and 12, title 49 54, Idaho Code. The agency must document receipt of the informal bids in the 50 project file. 51 (6) Any personal property including goods, parts, supplies and equipment 52 which is to be supplied or provided by a state agency for use in any public 53 work, project, or preventive maintenance programs, whether the public work, 3 1 project, or preventive maintenance program is constructed, undertaken or per- 2 formed by agency in-house personnel, or by delegation pursuant to section 3 67-5710A, Idaho Code, or otherwise provided or supplied by the agency to a 4 contractor, the personal property, goods, parts, supplies or equipment sup- 5 plied or provided by the agency must be purchased or procured by the agency 6 through the division of purchasing in accordance with the Idaho Code. 7 SECTION 3. That Chapter 57, Title 67, Idaho Code, be, and the same is 8 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 9 ignated as Section 67-5711D, Idaho Code, and to read as follows: 10 67-5711D. ENERGY SAVINGS PERFORMANCE CONTRACTS. (1) Definitions. As used 11 in this section: 12 (a) "Cost-savings measure" means any facility improvement, repair or 13 alteration, or any equipment, fixture or furnishing to be added or used in 14 any facility that is designed to reduce energy consumption and energy 15 operating costs or increase the energy efficiency of facilities for their 16 appointed functions that are cost effective. "Cost-savings measure" 17 includes, but is not limited to, one (1) or more of the following: 18 (i) Procurement of low-cost energy supplies of all types, includ- 19 ing electricity, natural gas and water; 20 (ii) Insulating the building structure or systems in the building; 21 (iii) Storm windows or doors, caulking or weather stripping, 22 multiglazed windows or door systems, heat-absorbing or heat- 23 reflective glazed and coated window and door systems, additional 24 glazing, reductions in glass area or other window and door system 25 modifications that reduce energy consumption; 26 (iv) Automated or computerized energy control systems; 27 (v) Heating, ventilation or air conditioning system modifications 28 or replacements; 29 (vi) Replacing or modifying lighting fixtures to increase the 30 energy efficiency of the lighting system; 31 (vii) Energy recovery systems; 32 (viii) Cogeneration systems that produce steam or forms of energy 33 such as heat, as well as electricity, for use primarily within a 34 building or complex of buildings; 35 (ix) Installing new or modifying existing day lighting systems; 36 (x) Installing or modifying renewable energy and alternate energy 37 technologies; 38 (xi) Building operation programs that reduce energy costs includ- 39 ing, but not limited to, computerized programs, training and other 40 similar activities; 41 (xii) Steam trap improvement programs that reduce energy costs; 42 (xiii) Devices that reduce water consumption; and 43 (xiv) Any additional building infrastructure improvements that pro- 44 duce energy cost savings, significantly reduce energy consumption or 45 increase the energy efficiency of the facilities for their appointed 46 functions and are in compliance with all applicable state building 47 codes. 48 (b) "Director" means the director of the department of administration or 49 the director's designee. 50 (c) "Energy cost savings" means any expenses that are eliminated or 51 avoided on a long-term basis as a result of equipment installed or modi- 52 fied, or services performed by a qualified energy service company or a 53 qualified provider, but does not include merely shifting personnel costs 4 1 or similar short-term cost savings. 2 (d) "Financial grade energy audit" means a comprehensive building energy 3 systems audit performed by a professional engineer licensed in the state 4 of Idaho for the purpose of identifying and documenting feasible energy 5 and resource conservation measures and cost-savings factors. 6 (e) "Performance contract" means a contract between the director and a 7 qualified provider or a qualified energy service company for evaluation, 8 recommendation and implementation of one (1) or more cost-savings mea- 9 sures. A performance contract may be structured as either: 10 (i) A guaranteed energy savings performance contract, which shall 11 include, at a minimum, the design and installation of equipment and, 12 if applicable, operation and maintenance of any of the measures 13 implemented. Guaranteed annual savings must meet or exceed the total 14 annual contract payments made by the director or the user agency for 15 such contract, including financing charges to be incurred over the 16 life of the contract; or 17 (ii) A shared savings contract, which shall include provisions mutu- 18 ally agreed upon by the director and the qualified provider or quali- 19 fied energy service company as to the rate of payments based upon 20 energy cost savings and a stipulated maximum energy consumption level 21 over the life of the contract; 22 (f) "Person" means an individual, corporation, partnership, firm, associ- 23 ation, limited liability company, limited liability partnership or other 24 such entity as recognized by the state of Idaho. 25 (g) "Qualified energy service company" means a person with a record of 26 established projects or with demonstrated technical, operational, finan- 27 cial and managerial capabilities to implement performance contracts and 28 who currently holds an Idaho public works contractor license. 29 (h) "Qualified provider" means a person who is experienced in the design, 30 implementation and installation of energy efficiency and facility improve- 31 ment measures, who has the ability to secure necessary financial measures 32 to support energy savings guarantees and the technical capabilities to 33 ensure such measures generate energy cost savings, and who currently holds 34 an Idaho public works contractor license. 35 (2) Performance contracts. The director of the department of administra- 36 tion, subject to the approval of the permanent building fund advisory council, 37 may enter into a performance contract with a qualified provider or qualified 38 energy service company to reduce energy consumption or energy operating costs. 39 Cost-savings measures implemented under such contracts shall comply with all 40 applicable state building codes. 41 (3) Requests for qualifications. The director of the department of admin- 42 istration shall request qualifications from qualified providers and qualified 43 energy service companies inviting them to submit information describing their 44 capabilities in the areas of: 45 (a) Design, engineering, installation, maintenance and repairs associated 46 with performance contracts; 47 (b) Experience in conversions to a different energy or fuel source, so 48 long as it is associated with a comprehensive energy efficiency retrofit; 49 (c) Postinstallation project monitoring, data collection and reporting of 50 savings; 51 (d) Overall project experience and qualifications; 52 (e) Management capability; 53 (f) Ability to assess the availability of long-term financing; 54 (g) Experience with projects of similar size and scope; and 55 (h) Other factors determined by the director to be relevant and appropri- 5 1 ate relating to the ability of the qualified provider or qualified energy 2 service company to perform the project. 3 (4) Notice. Adequate public notice of the request for qualifications 4 shall be given at least fourteen (14) days prior to the date set forth 5 therein for the opening of the responses to the request for qualifications. 6 Such notice may be provided electronically or by publication in a newspaper of 7 general circulation in the area where the work is located. 8 (5) Public inspection. All records of the department or an agency relat- 9 ing to the award of a performance contract shall be open to public inspection 10 in accordance with the provisions of sections 9-337 through 9-347 and 67-5725, 11 Idaho Code. 12 (6) Award of performance contract. 13 (a) The director shall select up to three (3) qualified providers or 14 qualified energy service companies who have responded to the request for 15 qualifications. Factors to be considered in selecting the successful qual- 16 ified provider or qualified energy service company shall include, but not 17 be limited to: 18 (i) Fee structure; 19 (ii) Contract terms; 20 (iii) Comprehensiveness of the proposal and cost-savings measures; 21 (iv) Experience of the qualified provider or qualified energy ser- 22 vice company; 23 (v) Quality of the technical approach of the qualified provider or 24 qualified energy service company; and 25 (vi) Overall benefits to the state. 26 (b) Notwithstanding the provisions of section 67-5711C, Idaho Code, the 27 director may, following the request for qualifications and the expiration 28 of the specified notice period, award the performance contract to the 29 qualified provider or qualified energy service company which best meets 30 the needs of the project and whose proposal may or may not represent the 31 lowest cost among the proposals submitted pursuant to this section. 32 (c) Upon award of the performance contract, the successful qualified pro- 33 vider or qualified energy service company shall prepare a financial grade 34 energy audit which, upon acceptance by the director, shall become a part 35 of the final performance contract. 36 (7) Installment payment and lease-purchase agreements. Pursuant to this 37 section, the director may enter into a performance contract, payments for 38 which shall be made by the user agency. Such performance contracts may be 39 financed as installment payment contracts or lease-purchase agreements for the 40 purchase and installation of cost-savings measures. Financing implemented 41 through another person other than the qualified provider or qualified energy 42 service company is authorized. 43 (8) Terms of performance contract. 44 (a) Each performance contract shall provide that all payments between 45 parties, except obligations upon termination of the contract before its 46 expiration, shall be made over time and that the objective of such perfor- 47 mance contract is the implementation of cost-savings measures and energy 48 cost savings. 49 (b) A performance contract, and payments provided thereunder, may extend 50 beyond the fiscal year in which the performance contract becomes effec- 51 tive, subject to appropriation by the legislature, for costs incurred in 52 future fiscal years. The performance contract may extend for a term not to 53 exceed twenty-five (25) years. The permissible length of the contract may 54 also reflect the useful life of the cost-savings measures. 55 (c) Performance contracts may provide for payments over a period of time 6 1 not to exceed deadlines specified in the performance contract from the 2 date of the final installation of the cost-savings measures. 3 (d) Performance contracts entered pursuant to this section may be amended 4 or modified, upon agreement by the director and the qualified provider or 5 qualified energy service company, on an annual basis. 6 (9) Monitoring and reports. During the term of each performance contract, 7 the qualified provider or qualified energy service company shall monitor the 8 reductions in energy consumption and cost savings attributable to the cost- 9 savings measures installed pursuant to the performance contract and shall 10 annually prepare and provide a report to the director documenting the perfor- 11 mance of the cost-savings measures.
STATEMENT OF PURPOSE RS 10776C2 The purpose of this legislation is to add a new section code allowing the Director of the Department of Administration, or her designee, to enter into a new type of contract, an energy savings performance contract. A new bidding process is also provided for. An energy savings performance contract is an affordable way for the Department of Administration, a university, or other public building manager to make investments in new energy-efficient equipment. The upgrades are made now--with no up front capital -and are paid for later through the energy savings that result. The benefits are immediate, getting new equipment expertise from energy service professionals, ongoing maintenance services and the ability to accomplish many projects all at once. Best of all, these savings can be guaranteed. FISCAL IMPACT There will be no negative impact to the General Fund. In fact, a positive impact may be achieved as capital improvement projects are financed through energy savings rather than through appropriations from the General Fund. Contact Name: Representative Kent Kunz Phone: (208) 332 1000 STATEMENT OF PURPOSE/FISCAL NOTE H 251