6 Miss. Code. R. 3-4.13 - ESPC Issuance and Approval Process

(A) Any entity desiring to enter into a contract for energy efficiency equipment, services relating to the installation, operation or maintenance of equipment, or improvements reasonably required to existing or new equipment and existing or new improvements and facilities on a shared savings basis or performance contracting basis, shall issue a Request for Qualifications (RFQ) in the manner prescribed in Section 31-7-14(1) (b) of the Mississippi Code of 1972, as amended. It is recommended that the entity use the RFQ template located in the MDA Energy Savings Performance Contracting Manual.

(B) The entity shall notify the MDA-ENRD in writing in advance of its determination to issue an RFQ to develop an Energy Saving Performance Contract or a Shared Savings Contract project.

(C) The entity may request, at its discretion, that the MDA-ENRD reviews its RFQ before it is published, but if not, the RFQ must be forwarded to MDA after it has been published.

(D) Any entity intending to contract for a shared savings or energy saving performance contract for energy services must advertise once each week for two (2) consecutive weeks in a regular newspaper published in the county or municipality in which such entity is located. On the same date that the notice is submitted to the newspaper for publication, the agency or governing authority involved shall mail written notice to or provide electronic notification to the main office of the Mississippi Procurement Technical Assistance Program under the Mississippi Development Authority that contains the same information as that in the published notice.

(E) The MDA-ENRD shall review each contract pursuant to code 31-7-14 (4) (b) and approve those it determines to be in compliance with the code, this policy, and these guidelines.

(F) No energy saving performance contract or shared savings contract shall be valid until approved by the MDA-ENRD in writing.

(G) The MDA-ENRD will not approve any energy saving performance contract or shared savings contract that does not generate verified quantifiable and measurable energy and/or operating costs savings as defined above.

(H) Project documentation must be submitted to the MDA-ENRD for review and comment. The documents to be submitted include: 1) Technical Energy Analysis; 2) final contract, and 3) Measurement and Verification (M&V) Plan. If any of the above listed documents are not submitted together, MDA-ENRD will not accept the project and will send a letter to the governmental entity to inform them that the review process will not begin until all required documents are submitted.

(I) Contracts submitted to MDA-ENRD shall be signed by both parties. Unsigned or partially signed contracts will be returned to the governmental entity. The governmental entity shall submit documentation of board or council approval of the submittal of the proposed project to MDA-ENRD for review with the project packet.

(J) The use of a 3rd party engineer or engineering firm to specifically review M&V is a requirement for state agencies with energy savings performance contracts. Third party review is optional for other public entities, but it is highly recommended. The third party reviewer must be chosen by the entity without input from the ESCO. The 3rd party reviewer must be neutral and the review of M&V must be paid out of the savings, not paid by the ESCO or the governmental entity.

(K) The Technical Energy Analysis must be signed and stamped by a professional engineer registered and licensed to practice in Mississippi.

(L) The MDA-ENRD initial review process will begin and commence immediately upon receiving a complete set of documents in our office or via email. MDA-ENRD will send written correspondence to the governmental entity acknowledging receipt of review documents.

(M) MDA-ENRD will attempt to complete review within forty-five (45) days of receipt of a complete package as outlined in (viii) above; however, this is heavily dependent on the responsiveness of the entity and ESCO to questions posed throughout the review process.

(N) The entity will be provided in writing any questions and comments raised by the MDA-ENRD during its review process. The entity will be required to respond to these questions and comments in writing within ten (10) business days. Although it is the intent of MDA-ENRD to work with an entity to resolve any issues in a timely manner, if MDA-ENRD has not received a response from a review report after fourteen (14) business days, a decision on the remaining issues will be made based on the latest available data.

(O) Direct communication (i.e., meetings, phone conferences, etc.) with the third party is acceptable - only with the governmental entities written consent and if it will be beneficial to clarify or resolve any issues that may arise during the resolution process.

(P) Upon completion of the review process, the MDA-ENRD will issue a letter signed by the MDA-ENRD director, indicating approval or denial of the proposed project. The final contract shall be approved by MDA-ENRD, in accordance with 31-7-14 (4) (b) of the Mississippi Code of 1972, as amended.

(Q) If a project is denied, a letter will be issued indicating the project failed to meet 31-7-14 of the Mississippi Code of 1972, as amended, and/or the policy and procedures as set forth in the Mississippi Performance Contracting Policy and Procedures Manual. A denial letter will end the review process of the proposed project. A governmental entity must restart the performance contracting project process (see AppendixA-3) if it is still interested in an ESPC.

(R) Appeals Process: Entities will be given ample opportunity to provide explanations to questions from MDA-ENRD in an attempt to reach a favorable conclusion during the review process. A final determination will stand unless the entity can substantiate that MDA-ENRD did not follow 31-7-14 of the Mississippi Code of 1972, as amended, and/or the policy and procedures as set forth in the Mississippi Performance Contracting Policy and Procedures Manual. In the event that the entity believes MDA-ENRD failed to follow the Section 31-7-14 or the policies and procedures of this program, the entity will send a letter to the MDA executive director documenting its reasons that the law and/or policies were not followed. The MDA executive director, or his designee, will make a decision as to whether to re-open the review process or to affirm the decision by MDA-ENRD. The executive director, or his designee, can only reopen the review process if there is clear documented evidence that the law or policies were not followed.

(S) Annual Energy Savings Reports are also required and must be submitted to the MDA-ENRD within 60 days of the date the reports are received by the entity. It is the responsibility of the ESCO to submit the annual reports to MDA-ENRD.

Notes

6 Miss. Code. R. 3-4.13

Miss. Code Ann. § 31-7-14 (Rev. 2015).

Adopted 6/5/2016