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TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED MATTERS

Subtitle C--Amendments to General Contracting Authorities, Procedures, and Limitations

P. L. 111-

Joint Explanatory Statement of the Committees on Armed Services of the U. S. Senate and House of Representatives on H. R. 6523

From H. R. 6523

SEC. 828. ENERGY SAVINGS PERFORMANCE CONTRACTS.

(a) Competition Requirements for Task or Delivery Orders Under Energy Savings Performance Contracts- Section 801 of the National Energy Conservation Policy Act (42 U.S.C. 8287) is amended by adding at the end the following:

`(c) Task or Delivery Orders- (1) The head of a Federal agency may issue a task or delivery order under an energy savings performance contract by--

`(A) notifying all contractors that have received an award under such contract that the agency proposes to discuss energy savings performance services for some or all of its facilities and, following a reasonable period of time to provide a proposal in response to the notice, soliciting from such contractors the submission of expressions of interest in, and contractor qualifications for, performing site surveys or investigations and feasibility designs and studies, and including in the notice summary information concerning energy use for any facilities that the agency has specific interest in including in such task or delivery order;

`(B) reviewing all expressions of interest and qualifications submitted pursuant to the notice under subparagraph (A);

`(C) selecting two or more contractors (from among those reviewed under subparagraph (B)) to conduct discussions concerning the contractors' respective qualifications to implement potential energy conservation measures, including--

`(i) requesting references and specific detailed examples with respect to similar efforts and the resulting energy savings of such similar efforts; and

`(ii) requesting an explanation of how such similar efforts relate to the scope and content of the task or delivery order concerned;

`(D) selecting and authorizing--

`(i) more than one contractor (from among those selected under subparagraph (C)) to conduct site surveys, investigations, feasibility designs and studies, or similar assessments for the energy savings performance contract services (or for discrete portions of such services), for the purpose of allowing each such contractor to submit a firm, fixed-price proposal to implement specific energy conservation measures; or

`(ii) one contractor (from among those selected under subparagraph (C)) to conduct a site survey, investigation, feasibility design and study, or similar assessment for the purpose of allowing the contractor to submit a firm, fixed-price proposal to implement specific energy conservation measures;

`(E) providing a debriefing to any contractor not selected under subparagraph (D);

`(F) negotiating a task or delivery order for energy savings performance contracting services with the contractor or contractors selected under subparagraph (D) based on the energy conservation measures identified; and

`(G) issuing a task or delivery order for energy savings performance contracting services to such contractor or contractors.

`(2) The issuance of a task or delivery order for energy savings performance contracting services pursuant to paragraph (1) is deemed to satisfy the task and delivery order competition requirements in section 2304c(d) of title 10, United States Code, and section 303J(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253j(d)).

`(3) The Secretary may issue guidance as necessary to agencies issuing task or delivery orders pursuant to paragraph (1).'.

(b) Effective Date- The amendment made by subsection (a) is inapplicable to task or delivery orders issued before the date of enactment of this Act.

From H.R. 5136:  National Defense Authorization Act for Fiscal Year 2011

SEC. 832. ENERGY SAVINGS PERFORMANCE CONTRACTS.

(a) Competition Requirements for Task or Delivery Orders Under Energy Savings Performance Contracts- Section 801 of the National Energy Conservation Policy Act (42 U.S.C. 8287) is amended by adding at the end the following:

`(c) Task or Delivery Orders- (1) The head of a Federal agency may issue a task or delivery order under an energy savings performance contract by--

`(A) notifying all contractors that have received an award under such contract that the agency proposes to discuss energy savings performance services for some or all of its facilities and, following a reasonable period of time to provide a proposal in response to the notice, soliciting from such contractors the submission of expressions of interest in, and contractor qualifications for, performing site surveys or investigations and feasibility designs and studies, and including in the notice summary information concerning energy use for any facilities that the agency has specific interest in including in such task or delivery order;

`(B) reviewing all expressions of interest and qualifications submitted pursuant to the notice under subparagraph (A);

`(C) selecting two or more contractors (from among those reviewed under subparagraph (B)) to conduct discussions concerning the contractors' respective qualifications to implement potential energy conservation measures, including--

`(i) requesting references and specific detailed examples with respect to similar efforts and the resulting energy savings of such similar efforts; and

`(ii) requesting an explanation of how such similar efforts relate to the scope and content of the task or delivery order concerned;

`(D) selecting and authorizing--

`(i) more than one contractor (from among those selected under subparagraph (C)) to conduct site surveys, investigations, feasibility designs and studies or similar assessments for the energy savings performance contract services (or for discrete portions of such services), for the purpose of allowing each such contractor to submit a firm, fixed-price proposal to implement specific energy conservation measures; or

`(ii) one contractor (from among those selected under subparagraph (C)) to conduct a site survey, investigation, a feasibility design and study or similar assessment for the purpose of allowing the contractor to submit a firm, fixed-price proposal to implement specific energy conservation measures;

`(E) providing a debriefing to any contractor not selected under subparagraph (D);

`(F) negotiating a task or delivery order for energy savings performance contracting services with the contractor or contractors selected under subparagraph (D) based on the energy conservation measures identified; and

`(G) issuing a task or delivery order for energy savings performance contracting services to such contractor or contractors.

`(2) The issuance of a task or delivery order for energy savings performance contracting services pursuant to paragraph (1) is deemed to satisfy the task and delivery order competition requirements in section 2304c(d) of title 10, United States Code, and section 303J(d) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253j(d)).

`(3) The Secretary may issue guidance as necessary to agencies issuing task or delivery orders pursuant to paragraph (1).'.

(b) Effective Date- The amendment made by subsection (a) is inapplicable to task or delivery orders issued before the date of enactment of this Act.

The House bill contained a provision (sec. 832) that would clarify the manner in which competition requirements applicable to multiple award task and delivery order contracts apply to energy savings performance contracts (ESPC).

The Senate committee-reported bill contained no similar provision.

The agreement includes the provision. We note that section 8287 of title 42, which provides the authority for ESPCs, provides for the use of such contracts “solely for the purpose of achieving energy savings and benefits ancillary to that purpose.” The Department of Defense does not construct new buildings or facilities “solely for the purpose of achieving energy savings and benefits ancillary to that purpose.” Accordingly, ESPC contracts may not be used for the construction of new buildings or facilities. We expect the Department of Defense to comply with requirements applicable to military construction programs in the construction of all new buildings and facilities.

From H. Rpt. 111-491, accompanying H. R. 5136, the NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2011

SECTION 832--ENERGY SAVINGS PERFORMANCE CONTRACTS

This section would clarify the application of the enhanced competition requirements for task and delivery order contracts included in section 843 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181) to energy savings performance contracts. Energy savings performance contracts are developed using a detailed energy audit and through the negotiation of guaranteed energy savings between the contracting agency and the contractor. The committee recognizes that this process entails significant upfront costs, which are intended to be recouped out of the contract after it is awarded. This section would clarify the requirements for the notification of potential bidders and for the review of expressions of interest from bidders prior to entering into an energy savings performance contract and would deem such requirements to satisfy the requirements of section 843, which is codified at section 2304c(d) of title 10, United States Code, and section 253j(d) of title 41, United States Code.