
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document affected by Public Law 106-291 Section 335]
[Document affected by Public Law 106-469 Section 401]
[CITE: 42USC8287]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
             CHAPTER 91--NATIONAL ENERGY CONSERVATION POLICY
 
          SUBCHAPTER VII--ENERGY SAVINGS PERFORMANCE CONTRACTS
 
Sec. 8287. Authority to enter into contracts


(a) In general

    (1) The head of a Federal agency may enter into contracts under this 
subchapter solely for the purpose of achieving energy savings and 
benefits ancillary to that purpose. Each such contract may, 
notwithstanding any other provision of law, be for a period not to 
exceed 25 years. Such contract shall provide that the contractor shall 
incur costs of implementing energy savings measures, including at least 
the costs (if any) incurred in making energy audits, acquiring and 
installing equipment, and training personnel, in exchange for a share of 
any energy savings directly resulting from implementation of such 
measures during the term of the contract.
    (2)(A) Contracts under this subchapter shall be energy savings 
performance contracts and shall require an annual energy audit and 
specify the terms and conditions of any Government payments and 
performance guarantees. Any such performance guarantee shall provide 
that the contractor is responsible for maintenance and repair services 
for any energy related equipment, including computer software systems.
    (B) Aggregate annual payments by an agency to both utilities and 
energy savings performance contractors, under an energy savings 
performance contract, may not exceed the amount that the agency would 
have paid for utilities without an energy savings performance contract 
(as estimated through the procedures developed pursuant to this section) 
during contract years. The contract shall provide for a guarantee of 
savings to the agency, and shall establish payment schedules reflecting 
such guarantee, taking into account any capital costs under the 
contract.
    (C) Federal agencies may incur obligations pursuant to such 
contracts to finance energy conservation measures provided guaranteed 
savings exceed the debt service requirements.
    (D) A Federal agency may enter into a multiyear contract under this 
subchapter for a period not to exceed 25 years, without funding of 
cancellation charges before cancellation, if--
        (i) such contract was awarded in a competitive manner pursuant 
    to subsection (b)(2) of this section, using procedures and methods 
    established under this subchapter;
        (ii) funds are available and adequate for payment of the costs 
    of such contract for the first fiscal year;
        (iii) 30 days before the award of any such contract that 
    contains a clause setting forth a cancellation ceiling in excess of 
    $750,000, the head of such agency gives written notification of such 
    proposed contract and of the proposed cancellation ceiling for such 
    contract to the appropriate authorizing and appropriating committees 
    of the Congress; and
        (iv) such contract is governed by part 17.1 of the Federal 
    Acquisition Regulation promulgated under section 421 of title 41 or 
    the applicable rules promulgated under this subchapter.

(b) Implementation

    (1)(A) The Secretary, with the concurrence of the Federal 
Acquisition Regulatory Council established under section 421(a) of title 
41, not later than 180 days after October 24, 1992, shall, by rule, 
establish appropriate procedures and methods for use by Federal agencies 
to select, monitor, and terminate contracts with energy service 
contractors in accordance with laws governing Federal procurement that 
will achieve the intent of this section in a cost-effective manner. In 
developing such procedures and methods, the Secretary, with the 
concurrence of the Federal Acquisition Regulatory Council, shall 
determine which existing regulations are inconsistent with the intent of 
this section and shall formulate substitute regulations consistent with 
laws governing Federal procurement.
    (B) The procedures and methods established pursuant to subparagraph 
(A) shall be the procedures and contracting methods for selection, by an 
agency, of a contractor to provide energy savings performance services. 
Such procedures and methods shall provide for the calculation of energy 
savings based on sound engineering and financial practices.
    (2) The procedures and methods established pursuant to paragraph 
(1)(A) shall--
        (A) allow the Secretary to--
            (i) request statements of qualifications, which shall, at a 
        minimum, include prior experience and capabilities of 
        contractors to perform the proposed types of energy savings 
        services and financial and performance information, from firms 
        engaged in providing energy savings services; and
            (ii) from the statements received, designate and prepare a 
        list, with an update at least annually, of those firms that are 
        qualified to provide energy savings services;

        (B) require each agency to use the list prepared by the 
    Secretary pursuant to subparagraph (A)(ii) unless the agency elects 
    to develop an agency list of firms qualified to provide energy 
    savings performance services using the same selection procedures and 
    methods as are required of the Secretary in preparing such lists; 
    and
        (C) allow the head of each agency to--
            (i) select firms from the list prepared pursuant to 
        subparagraph (A)(ii) or the list prepared by the agency pursuant 
        to subparagraph (B) to conduct discussions concerning a 
        particular proposed energy savings project, including requesting 
        a technical and price proposal from such selected firms for such 
        project;
            (ii) select from such firms the most qualified firm to 
        provide energy savings services based on technical and price 
        proposals and any other relevant information;
            (iii) permit receipt of unsolicited proposals for energy 
        savings performance contracting services from a firm that such 
        agency has determined is qualified to provide such services 
        under the procedures established pursuant to paragraph (1)(A), 
        and require agency facility managers to place a notice in the 
        Commerce Business Daily announcing they have received such a 
        proposal and invite other similarly qualified firms to submit 
        competing proposals; and
            (iv) enter into an energy savings performance contract with 
        a firm qualified under clause (iii), consistent with the 
        procedures and methods established pursuant to paragraph (1)(A).

    (3) A firm not designated as qualified to provide energy savings 
services under paragraph (2)(A)(i) or paragraph (2)(B) may request a 
review of such decision to be conducted in accordance with procedures to 
be developed by the board of contract appeals of the General Services 
Administration.

(c) Sunset requirements

    The authority to enter into new contracts under this section shall 
cease to be effective on October 1, 2003.

(Pub. L. 95-619, title VIII, Sec. 801, as added Pub. L. 99-272, title 
VII, Sec. 7201(a), Apr. 7, 1986, 100 Stat. 142; amended Pub. L. 102-486, 
title I, Sec. 155(a), Oct. 24, 1992, 106 Stat. 2852; Pub. L. 104-106, 
div. E, title LVI, Sec. 5607(e), Feb. 10, 1996, 110 Stat. 702; Pub. L. 
104-316, title I, Sec. 122(s), Oct. 19, 1996, 110 Stat. 3838; Pub. L. 
105-388, Sec. 4(a), Nov. 13, 1998, 112 Stat. 3477.)


                               Amendments

    1998--Subsec. (c). Pub. L. 105-388 substituted ``on October 1, 
2003'' for ``five years after the date procedures and methods are 
established under subsection (b) of this section''.
    1996--Subsec. (b)(3). Pub. L. 104-106 struck out at end ``Procedures 
developed by the board of contract appeals under this paragraph shall be 
substantially equivalent to procedures established under section 759(f) 
of title 40.''
    Subsec. (c). Pub. L. 104-316 struck out par. (1) designation before 
``The authority to'' and struck out par. (2) which required Comptroller 
General of the United States to report annually for five years on 
implementation of this section, including an assessment of various 
energy issues.
    1992--Pub. L. 102-486 inserted subsec. (a) designation and heading, 
designated existing provisions as par. (1), and added par. (2) and 
subsecs. (b) and (c).


                    Effective Date of 1996 Amendment

    Amendment by Pub. L. 104-106 effective 180 days after Feb. 10, 1996, 
see section 5701 of Pub. L. 104-106, set out as an Effective Date note 
under section 1401 of Title 40, Public Buildings, Property, and Works.


  Architect of the Capitol as Agency Electing To Develop List of Firms 
Qualified To Provide Energy Saving Services and as Agency Head Selecting 
                                From List

    Pub. L. 103-211, title III, Sec. 402, Feb. 12, 1994, 108 Stat. 40, 
provided that: ``The Architect of the Capitol shall be considered the 
agency for the purposes of the election in section 801(b)(2)(B) of the 
National Energy Conservation Policy Act [42 U.S.C. 8287(b)(2)(B)] and 
the head of the agency for purposes of subsection (b)(2)(C) of such 
section.''


                       Energy Efficiency Incentive

    Pub. L. 100-456, div. A, title VII, Sec. 736, Sept. 29, 1988, 102 
Stat. 2006, as amended by Pub. L. 101-189, div. A, title III, Sec. 331, 
Nov. 29, 1989, 103 Stat. 1417, provided that:
    ``(a) Energy Conservation Incentive.--In order to provide additional 
incentive for the Secretary of a military department to enter into 
contracts under title VIII of the National Energy Conservation Policy 
Act (42 U.S.C. 8287 et seq.), the Secretary may use the energy cost 
savings realized by the United States during the first five years under 
any such contract in the manner provided in subsection (b). The amount 
of savings available for use under subsection (b) shall be determined as 
provided in subsection (c) and shall remain available for obligation 
until expended.
    ``(b) Authorized Uses of Savings.--The energy cost savings realized 
by the United States in each of the first five years under a contract 
may be used as follows:
        ``(1) One-half of the amount of such savings may be used for the 
    acquisition of energy conserving measures for military 
    installations, and such measures may be in addition to any such 
    energy conserving measures acquired for military installations under 
    contracts entered into under title VIII of the National Energy 
    Conservation Policy Act.
        ``(2) One-half of the amount of such savings may be used for any 
    morale, welfare, or recreation facility or service that is normally 
    provided with appropriated funds, or for any minor military 
    construction project (as defined in section 2805(a) of title 10, 
    United States Code), that will enhance the quality of life of 
    members of the Armed Forces at the military installation at which 
    the energy cost savings were realized.
    ``(c) Determination of Amount of Savings.--Not more than 90 days 
after the end of each of the first five years during which energy 
savings measures have been in operation under a contract entered into by 
the Secretary of a military department under title VIII of the National 
Energy Conservation Policy Act, the Secretary of the military department 
concerned shall determine the amount of energy cost savings realized by 
the United States under the terms of the contract during that year by 
reason of the energy savings measures acquired and installed at that 
installation pursuant to that contract.''
