Chad Marriott
Chad Marriott practices in the Energy Development group, where he concentrates his practice on wind, solar, hydro, marine and hydrokinetic (e.g., wave and tidal power), and other forms of renewable energy. Chad currently serves as a vice chair for the Hydro Power Committee of the American Bar Association's Section on Environment, Energy, and Resources; and he is also a board member of the Ocean Renewable Energy Coalition. His practice includes advising clients on the retirement of renewable energy certificates (RECs) with the Western Renewable Energy Generation Information System (WREGIS); advising irrigation districts on Federal Energy Regulatory Commission (FERC) permitting and licensing requirements for new hydro, hydrokinetic and conduit facilities; drafting and reviewing leases and easements for the development of energy projects, assisting with mergers and restructuring of foreign renewable energy companies' domestic project entities, and drafting and reviewing power purchase agreements for renewable energy developers.
Obama Administration Releases National Ocean Policy Implementation Plan
Almost three years ago, I reported that the White House Council on Environmental Quality had issued the Final Recommendations of the Interagency Ocean Policy Task Force. Since that time, the Nation Ocean Council, formed by President Obama in Executive Order 13547, has been working diligently to prepare an agency roadmap to put the new National Ocean Policy into action.
On April 16, 2013, the National Ocean Council did just that when it published the National Ocean Policy Implementation Plan (the "Implementation Plan"). The Implementation Plan represents a significant step forward for the National Ocean Policy, and marine industries should be aware that the new interagency processes and actions it mandates – while not new law – may result in additional hurdles despite its express intent to streamline regulatory processes. For a more detailed summary of the Implementation Plan, take a look at the Ocean Law Alert we published earlier this week and feel free to contact us with any questions you may have.
Army Seeks Feedback on Standardized Performance Work Statement for Renewable Energy Projects
On April 1, 2013, the Army Energy Initiatives Task Force (“EITF”) and the U.S. Army Mission and Installation Contracting Command at Fort Sam Houston in Texas published a template Renewable Energy Service Agreement Performance Work Statement (the “PWS”) for comment by interested stakeholders.
The proposed scope of the PWS is broad, covering everything from insurance and OSHA requirements to interconnection responsibilities and power prices. Thus, the PWS purports to be part power purchase agreement, part EPC agreement, and part operations and maintenance agreement. As discussed in my previous entry, this comment opportunity is important to all renewable energy developers that intend to contract with the Army. However, it should be of particular interest to teams that responded to the Army’s Multi-Award Task Order Contract (“MATOC”) last fall because the final PWS will likely be incorporated into each base-level RFP issued under the MATOC.
It is important to note that the template is not a “one-size-fits-all” document and contemplates quite a bit of input from individual bases at the time RFPs are issued. Thus, the PWS is malleable and the comments the Army receives through this request for information will not result in a final form of PWS that will be incorporated into every contract issued. Rather, the Army is looking for input to create a “clear, concise and understandable” PWS template that will reduce the need for discussion and clarification of provisions common to all contracts down the line.
For more information, attend the EITF webinar on April 11, 2013 from 1:00-2:00 p.m. EST. see Solicitation No. W9124J13EITF1, which can be found on the FedBizOpps website. To register for the webinar, go to https://www4.gotomeeting.com/register/518667447. Registration is limited to the first 500 participants.
As was the case with the MATOC, comments and questions must be submitted via Bidder Inquiry on the ProjNet website (https://www.projnet.org). Comments must be submitted no later than 5:00 p.m. EST on May 29, 2013.
Army to Seek Comments on Standardized Performance Work Statement for Renewable Energy Projects
On February 12, 2013, the U.S. Army Contracting Command announced that the Army Energy Initiatives Task Force ("EITF") is developing a standardized Utility Service Contract Performance Work Statement ("PWS") to be used for contracts executed under its long-term power procurement authority (10 U.S.C. 2922a). The intent is to have a PWS that is clear and understandable to both the renewable energy industry and the government. The EITF intends to publish a draft utility service contract solicitation at the end of this month-i.e., on or about March 29. Once published, they will accept comments for 60 days.
This comment opportunity will be important to all renewable energy developers that intend to contract with the Army, but it will be especially important for teams that responded to the Army's Multi-Award Task Order Contract ("MATOC") last fall. The comments received through this solicitation will likely be incorporated into the PWS that is included in base-level RFPs issued under the MATOC. And interestingly, the timing lines up pretty well. Assuming that the draft PWS is issued at the end of March (like the EITF anticipates), then comments will be due at the end of May. Last year, the Army was saying that it would announce awardees under the MATOC at (or near) the end of Q2 2013. If that goal becomes a reality, then the comment period on the draft PWS will close one month prior to awards under the MATOC, which would ostensibly give the Army enough time to incorporate the revised language into any base-level RFPs that would follow quickly on the heels of the MATOC awards.
For more information, see Solicitation No. W9124J13EITF1, which can be found on the FedBizOpps website.
Fort Drum Biomass RFP Update
On December 12, 2012, the Defense Logistics Agency- Energy ("DLA-Energy") published a solicitation for a 15-28 MW biomass facility to be located at the U.S. Army's Fort Drum in New York (Solicitation No. SP0600-13-R-0401). The procurement will be conducted and negotiated pursuant to the Department of Defense's authority to enter into long-term power purchase agreements under 10 U.S.C. 2922a.
In this case, DLA-Energy anticipates entering into a firm fixed price requirements contract with a term between 10 and 25 years and the solicitation states explicitly that "the Government will only consider costs that do not exceed the equivalent of $0.056/kWh compounded annually at 4.88%." Thus, the ceiling is set and bidders should take that into account when analyzing their business case for a proposal.
Last Friday, DLA-Energy announced that registration is now open for the pre-proposal conference, which will take place at the Dulles State Office Building in Watertown, New York on January 24, 2013, from 7:00 a.m. to 3:45 p.m. EST. Attendees will be provided an overview of the potential project, a site tour, and an opportunity for Q&A about the solicitation. Solicitation proposals are due no later than 3:00 p.m. on March 15, 2013.
Army Issues RFP for Solar PV at Fort Detrick
On November 14, 2012, the Defense Logistics Agency- Energy ("DLA-Energy"), in coordination with the Army Energy Initiatives Task Force, issued a solicitation for the procurement of electricity from a solar photovoltaic energy project to be located on or contiguous with land at Fort Detrick, Maryland (SP0600-13-0416, the "Solicitation").
DLA-Energy contemplates the award of a Firm-Fixed Price contract under the Department of Defense's long-term procurement authority set out in 10 U.S.C. 2922a. According to the Solicitation, the government will only consider bids that do not exceed $0.0756 per kWh, compounded annually at 4.35%. The contract will be for up to 26 years (one year for construction with a 25-year production term) and will include a price escalator beginning in year two. Consistent with the Army's position in the Multi-Award Task Order Contract ("MATOC") solicitation that closed on October 5, the price will include the price for renewable energy credits ("RECs"), which the government intends to keep; however, REC-swapping will be permitted. The Solicitation includes other provisions incorporated into to the MATOC based on feedback from the renewable energy industry, including those for special purpose entities and novation to facilitate third-party financing.
DLA-Energy does not specify the size of the project to be constructed pursuant to the Solicitation, only that the government desires to purchase "the maximum amount of power that is economically and technically feasible" from a project "installed on 69.1 acres of non-landfill sites and, as an option, on the 10.4 acres of capped landfill sites" at Fort Detrick.
The Solicitation can be found on the FedBizOpps website. DLA-Energy anticipates holding a pre-proposal conference at Fort Detrick, though the date has not yet been announced. Proposals are due no later than 2:00 p.m. EST on January 11, 2013.
Army Holds Pre-Proposal Conference in Huntsville on Renewable Energy Procurement
On August 22, 2012, the U.S. Army Engineering & Support Center in Huntsville, AL held a pre-proposal conference to discuss the final multi-award task order contract that was issued on August 7, 2012 (the “Final RFP” or “MATOC”). My colleague, Lane Tucker, and I attended to hear the Army’s presentations and to engage directly with renewable energy developers, consultants, seasoned government contractors, large energy service contractors (ESCOs), and others. The conference provided attendees a great opportunity to explore the field of potential contractors and subcontractors and start (or continue) conversations about potential teaming arrangements that could result in both a MATOC award and one or more base task order awards.
For those who could not attend, fear not; all of the presentation materials will soon be available on the Army EITF website and the Huntsville team will post all of the questions presented, along with the Army’s formal responses, to the ProjNet website. Also important is that Tonju Butler, the Procuring Contracting Officer, indicated that the deadline for questions on the Final RFP would be extended from today until September 7, 2012, so that individuals and teams can have additional time to formulate and posit questions that may be important to their proposals. However, that change has not yet been posted to the FedBizOpps website as an amendment. It is too early to tell whether this extension foreshadows an extension of the October 5, 2012 proposal deadline. Right now, the Army is holding firm to that date, so individuals and teams that intend to respond should plan accordingly. Keep an eye out for other amendments to the Final RFP, too. Conference attendees were assured that more would be forthcoming to clarify small technical issues and, hopefully, to flush out the structure for proposing prices. All amendments will be posted to the FedBizOpps website for the MATOC.
Here are a few takeaways and a short discussion about some important issues. Be sure to check the Q&A on the ProjNet website for any official responses from the Army on these topics.
Continue Reading...Army RFP Pre-Proposal Conference Announced and Amendments Published
On August 14, 2012, the Army Engineering & Support Center published the details of the pre-proposal conference for the final request for proposals that was issued last week (the "Final RFP"). The conference will be held on August 22, 2012 at the Redstone Arsenal Sparkman Center, Bob Jones Auditorium, Building 5300, Martin Road, Huntsville, Alabama 22202. Registration will be open through Friday August 17, and the number of attendees (both per company and total) is limited. Registration and conference information can be found here.
In addition, amendments to the Final RFP were posted to the FedBizOpps website for the solicitation, here, including a new Section H.11 governing the substitution of team members.
My colleague Lane Tucker and I will be in Huntsville next week and look forward to seeing some of you there!
OPT Receives 35-Year FERC License for Wave Energy Project in Oregon
On August 13, 2012, Ocean Power Technologies ("OPT"), received some fantastic news when the Federal Energy Regulatory Commission ("FERC" or "the Commission") issued a first-of-its-kind, 35-year license to construct and operate a wave energy project off the coast of Oregon to its subsidiary, OPT Reedsport Wave Park, LLC. Stoel Rives attorneys are pleased with the FERC order, having worked with OPT to negotiate and draft a comprehensive settlement agreement between the company and 14 state and federal agencies and other stakeholder groups, and to navigate the state and federal permitting and licensing processes.
Once constructed, the project will have a total installed capacity of 1.5 MW and will consist of ten 150 kW PowerBuoys. The project will be located approximately 2.5 miles off the coast of Reedsport, in Douglas County, Oregon and will be constructed in two phases. In Phase 1, a single PowerBuoy will be installed to test the mooring system and device operation and to collect measurements of electromagnetic fields and acoustic emissions. Phase 2 will be implemented after at least one season of monitoring the single device, at which point the remaining nine PowerBuoys will be installed.
This is a landmark decision by FERC. While it has recently issued shorter-term pilot project licenses for tidal energy devices, this is the first 35-year license that the Commission has issued for a marine hydrokinetic energy project of any kind. Our congratulations to OPT!
For more information, you can access FERC's order here. You can also view related information through the Commission's eLibrary by searching for Docket No. P-12713.
Army Issues Final RFP for $7 Billion in Renewable Energy Contracts
On August 7, 2012, the U.S. Army Engineering and Support Center in Huntsville, Alabama issued its much-anticipated final solicitation for renewable and alternative energy utilizing power purchase agreements (PPAs) or other contractual equivalents (Solicitation Number W912DY-11-R-0036, the "Final RFP"). The draft RFP was issued on Friday February 24, 2012 and the Army has been in active discussion with industry ever since, engaging in meetings with industry representatives and responding to comments and questions at conferences across the country. The package released today includes the Final RFP, a "frequently asked questions" form, an attachment regarding maximum unit price rates, and an amendment to the Final RFP which (1) corrected the effective date to August 7, 2012 and (2) extended the closing date and time for receipt of proposals to October 5, 2012 at 2:00 p.m. CST. All solicitation materials can be found here.
As was the case in the draft RFP, it is the intent of the government to purchase only the energy produced by the projects and not to acquire any generation assets. Each contractor will be responsible for developing, financing, designing, building, operating, owning and maintaining its project. Generation facilities may be located on private land or on installations under the jurisdiction of the Department of Defense. The government will contract to purchase the energy for up to 30 years under the procurement authority set out in 10 U.S.C. 2922a.
This solicitation will result in multiple Indefinite Delivery/Indefinite Quantity ("ID/IQ") contracts awarded "to all qualified and responsible offerors, both large and small businesses, whose offers receive the required minimum acceptable evaluation ratings and whose price is reasonable and realistic." Individual Task Orders will then be awarded against the ID/IQ contracts using fair opportunity and competitive source selection procedures set out in the federal acquisition regulations and the defense federal acquisition regulations. The sum of all Task Orders awarded over the 10-year period for contracting authorized under the Final RFP cannot exceed $7 billion. Task Orders will be reserved for small businesses in accordance with the same ordering procedures proposed in the draft RFP and reproduced in our original blog back in February.
The Final RFP states that a pre-proposal conference will be held prior to the October 5, 2012 submission deadline, but details are forthcoming. The conference is tentatively scheduled to be held in Chicago, IL. Comments on the Final RFP may be submitted through the ProjNet website and must be received no later than August 24, 2012. The Army will not accept questions via email or telephone and individual meetings with firms will not be scheduled.
We are reviewing the Final RFP and will continue to provide updates as may be appropriate.
UPDATE! Renewables Contracting with the U.S. Military
Below are a few important updates for those interested in opportunities to contract with the U.S. armed services for renewable energy:
NEW Solicitation for NAWS China Lake: On July 26, 2012, the Department of the Navy published a Request for Information (RFI) for the development of large scale renewable energy generation at Naval Air Weapons Station (NAWS) China Lake, in California. The project will be in support of President Obama's 1 GW goal for the Navy. In particular, the Navy will consider opportunities to host the development of a project between 20 MW and 200 MW on the base. Contracting authority would come under any of 10 U.S.C. 2667 (governing enhanced use leases), 10 U.S.C. 2916 (governing sales by the Navy of electricity from alternate energy and cogeneration facilities consistent with the Public Utilities Regulatory Policies Act (PURPA)), or 10 U.S.C. 2922a (governing 30-year power purchase agreements). The Navy is clear in the RFI that it is "seeking information on a development that would generate energy for sale to the grid and/or for potential consumption at other [Navy] installations in the southwest. The [Navy] has an Interagency Agreement with Western Area Power Administration (WAPA) and fulfills most of its electric demand in CA through Direct Access power. There is a potential for other [Navy] facilities to consume energy from this development through this arrangement."
The FedBizOpps Solicitation Number is N6247312C3805 and the RFI can be accessed here. While this is only a Request for Information, the the Navy is seeking analyses of the CAISO interconnection process, transmission access and capacity, an economic assessement of providing power to other Navy installations, the California RPS, and other aspects of the potential arrangement that would affect development at NAWS China Lake (all in 15 pages or less!). Statements of Interest from potential developers are due 45 days after the July 26 posting date.
El Paso Electric ("EPE") Extends Deadline for Fort Bliss Statements of Qualification ("SOQs"): EPE has exteded the deadline for parties to file SOQs for a 20 MW solar photovoltaic project that is expected to be located within the Fort Bliss military reservation. The deadline for submission is now 4:00 PM (MDT) on August 22, 2012. Information on the solicitation can be found here. Our original blog can be found here.
Army Corps of Engineers Expects to Release $7 Billion Solicitation THIS WEEK! In a notice issued on July 26, 2012, the U.S. Army Engineering & Support Center in Huntsville, Alabama announced that it will post its much-anticipated final RFP within 15 days, and since it was not released last week, look for it by Friday August 10! In the meantime, you can refresh your memory by reviewing the draft solicitation (W912DY-11-R-0036) here and reading our previous blogs on it, here and here.
