**General Section**

Will the project at the TBD Site included in the RFP for Master IDIQ
require access to classified information or special nuclear material? If
so will this result in a requirement for a security clearance for the
prospective Offeror? If an Offeror is required to obtain a favorable
FOCI position in order to respond to the Master IDIQ solicitation or to
conduct work at the TBD Site fo rthe Master IDIQ, we believe that more
time will be required for an Offeror to obtain a favorable FOCI position
than the suggested timeline proposes in the Draft RFP cover letter.\"
**[No, the TBD site included in the RFP for the master IDIQ will not
require access to classified information or special nuclear
material.]{.underline}**

\"1. Paragraph C.1.1. -- The requirement to furnish all "capital" and
the "...cost of an energy savings performance contract TO project must
be covered by reduced..." may restrict use of appropriated funding to
supplement project financing, which is inconsistent with current
legislative initiatives to allow use of such funding for supplementing
ESPC projects. Contract language should probably not conflict with known
legislation. **[The intent of this paragraph is not to specifically
prohibit or allow the use of appropriated funding to supplement project
financing. See the DOE-FEMP Guidelines Regarding One-Time Payments and
One-Time Savings In Energy Savings Performance Contracts for proper uses
of appropriated funds on an ESPC task order.]{.underline}**

2\. Paragraph C.4.4. -- Assigning precedence to a DOE publication may
change attributes of the IDIQ requirements (on which contractor
selection was based) when the DOE publication changes. Additional
references to other DOE publications that change from time to time are
cited throughout the solicitation. **[Thanks for the comment. Even if
the publication changes, the citation in the contract stays the
same.]{.underline}**

3\. Comment 2 also applies to Paragraph C.4.6., B and D. **[Thanks for
the comment. Even if the publication changes, the citation in the
contract stays the same.]{.underline}**

4\. Paragraph C.5.1.D. -- The IDIQ solicitation should describe
requirements of "both a preliminary and final review," differentiating
when each occurs in the context of project development and submittal
requirements. This specific description appears inconsistent with other
procedural requirements in the solicitation, such as IGA, Preliminary
Assessment, and Final Proposal deliverables. **[Thanks for your comment.
We will consider your suggestion.]{.underline}**

5\. Paragraph C.5.1. -- Please confirm that the draft IDIQ requires no
drawings prior to TO award. Traditionally, federal agencies don't like
contractor contingency, but they do like competitive pricing among
subcontractors. Realistic competitive pricing requires some level of
conceptual or schematic engineering/design drawings. The absence of
drawings will place upward pressure on contractor pricing, as less
design detail drives greater cost/price contingency. **[This DRFP did
not specify drawings. However, it did not prohibit the agency from
requiring drawings. We will consider making a change to the
document.]{.underline}**

6\. Paragraph C.5.5.B. -- The requested environmental indemnification
from contractor noncompliance or violation as worded does not account
for government action or inaction causing contractor noncompliance or
violation. **[Thanks for your comment. We will consider making the
change.]{.underline}**

7\. Paragraph C.5.5.C. -- Wording in this paragraph ("...at its
expense...") allows the agency to interpret contractor costs associated
with the acquisition of permits to be unallowable. **[Thanks for your
comment. We will consider making a change.]{.underline}**

8\. Paragraph C.6.1. -- There is minimal advantage to restricting
operational responsibility in the IDIQ. However, the flexibility to
specify ultimate responsibility for equipment operation in the TO would
allow the agency to create greatest benefit for the government on a
project- by-project basis, so unique project characteristics can be
understood and lessons learned applied to future projects. **[Thanks for
your comment. We will consider making the change.]{.underline}**

9\. Paragraph C.6.3. - The last line in this paragraph gives the agency
the latitude to "walk away" from damage to the contractor specifically
caused by the government, thereby voiding normal contractor dispute
remedies. . **[Under the applicable ESPC statute, the Government is
neither allowed nor required to undertake the risk of ECM repairs or
maintenance. Rather, that responsibility lies with the contractor. See
42 U.S.C. § 8287(a)(2)(A). In addition, because the contractor is
responsible for the level of guaranteed savings, the contractor bears
the ultimate responsibility for the proper repair, maintenance and
operations of the equipment installed. Although *responsibility* for
repair, maintenance or operations remains with the contractor,
*performance* of these activities may be undertaken by either the
contractor or agency, as negotiated. Where the agency performs the
activities, the contractor is required to provide adequate work
requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

10\. Paragraph C.7.1. -- There is minimal advantage to restricting
equipment maintenance responsibility in the IDIQ. However the
flexibility to specify ultimate responsibility for equipment maintenance
in the TO would allow the agency to create greatest benefit for the
government on the project-by-project basis, so unique project
characteristics can be understood and lessons learned applied to future
projects. **[Thank you for your comment. Under the applicable ESPC
statute, the Government is neither allowed nor required to undertake the
risk of ECM repairs or maintenance. Rather, that responsibility lies
with the contractor. See 42 U.S.C. § 8287(a)(2)(A). In addition, because
the contractor is responsible for the level of guaranteed savings, the
contractor bears the ultimate responsibility for the proper repair,
maintenance and operations of the equipment installed. Although
*responsibility* for repair, maintenance or operations remains with the
contractor, *performance* of these activities may be undertaken by
either the contractor or agency, as negotiated. Where the agency
performs the activities, the contractor is required to provide adequate
work requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

11\. Paragraph C.7.3. -- The last line in this paragraph gives the
agency the latitude to "walk away" from damage to the contractor
specifically caused by the government, thereby voiding normal contractor
dispute remedies. **[Under the applicable ESPC statute, the Government
is neither allowed nor required to undertake the risk of ECM repairs or
maintenance. Rather, that responsibility lies with the contractor. See
42 U.S.C. § 8287(a)(2)(A). In addition, because the contractor is
responsible for the level of guaranteed savings, the contractor bears
the ultimate responsibility for the proper repair, maintenance and
operations of the equipment installed. Although *responsibility* for
repair, maintenance or operations remains with the contractor,
*performance* of these activities may be undertaken by either the
contractor or agency, as negotiated. Where the agency performs the
activities, the contractor is required to provide adequate work
requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

12\. Paragraph C.8.1. -- The broad description of repair responsibility
in the IDIQ can significantly impact the viability of project economics.
The flexibility to specify ultimate responsibility for equipment
replacement in the TO will allow the agency to create greatest benefit
for the government on a project-by-project basis. **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

13\. Paragraph C.8.3.A. -- This paragraph gives the agency the latitude
to "walk away" from damage to the contractor specifically cased by the
government, thereby voiding normal contractor dispute remedies. **[Under
the applicable ESPC statute, the Government is neither allowed nor
required to undertake the risk of ECM repairs or maintenance. Rather,
that responsibility lies with the contractor. See 42 U.S.C. §
8287(a)(2)(A). In addition, because the contractor is responsible for
the level of guaranteed savings, the contractor bears the ultimate
responsibility for the proper repair, maintenance and operations of the
equipment installed. Although *responsibility* for repair, maintenance
or operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

14\. Paragraph C.8.3.B -- This paragraph suggests the contractor is
liable for "uncapped" losses associated with failure to perform a
maintenance activity (regardless of who is actually performing the task
IAW C.8.1). Contractor liability for reimbursement to the agency for
failure to perform a maintenance task should be limited to the contract
value of the maintenance activity. **[Under the applicable ESPC statute,
the Government is neither allowed nor required to undertake the risk of
ECM repairs or maintenance. Rather, that responsibility lies with the
contractor. See 42 U.S.C. § 8287(a)(2)(A). In addition, because the
contractor is responsible for the level of guaranteed savings, the
contractor bears the ultimate responsibility for the proper repair,
maintenance and operations of the equipment installed. Although
*responsibility* for repair, maintenance or operations remains with the
contractor, *performance* of these activities may be undertaken by
either the contractor or agency, as negotiated. Where the agency
performs the activities, the contractor is required to provide adequate
work requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

15\. Paragraph C.8.4. -- The "escrow" concept suggested in this
paragraph is not adequately defined. At a minimum, the concept of
accumulation of savings into an escrow account should describe what
funds are maintained in the escrow and what "Federal Fiscal Law" is of
concern. **[Thank you for your comment. We will consider making a
change.]{.underline}**

16\. Paragraph C.10.2.A. -- Allow the agency to specify the time frame
between training and installation completion. Compressed schedules may
not allow a 30-day interval. **[Thank you for your comment. We will
consider making the change.]{.underline}**

17\. Paragraph C.11 -- The ESCO and agency should jointly determine
appropriate calculation methodologies for savings adjustments, versus
relying solely on the agency's methodology selection, which could impact
contractor costs. **[Thank you for your comment. We will consider making
a change.]{.underline}**

18\. Paragraph D.3. -- Ensure this paragraph isn't interpreted to mean
that packing, marking, and storage is not an allowable cost. **[Thank
you for your comment. We will consider making a change.]{.underline}**

19\. Paragraph H.3.1.A.1.a. -- The description should specify what
constitutes "an offer." **[The Preliminary Assessment constitutes an
offer.]{.underline}** Will a COR be appointed at this time? **[It is up
to the agency to determine when or if it will appoint a
COR.]{.underline}** Is it the DOE COR? **[No.]{.underline}** What
constitutes a "contractor initiated proposal?" **[A contractor's request
to develop and submit the preliminary assessment.]{.underline}** The
content of this paragraph should be reconciled with the discussion of
"Deliverables" outlined in J-5 as well as the acronym list. Paragraphs
H.3.1.A.1.b. and H.3.1.A.2.b. introduce the TO schedules; the same
content reconciliation with paragraph H.3.1.A.1.a. should occur for
those instructions. **[Thank you for your comments. We will consider
making a change.]{.underline}**

20\. Paragraph H.6.2. -- This statement clearly communicates that the
agency can ask ESCOs to invest hundreds of thousands of dollars to
create an IGA, and then cancel the project with no liability and no
recourse for ESCOs to recoup costs. In practice, this happens
frequently, and the ESCO community was hopeful that the significant
problem of unrecoverable development costs for viable projects would be
equitably addressed in the revised IDIQ. This should be changed to hold
the agency responsible for all IGA costs associated with viable ECMs and
require agencies to compensate ESCOs in the event an agency cancels a
viable project. The current draft doesn't even allow the contracting
officer the option to compensate ESCOs whose projects are cancelled
after complying with agency requests to complete IGAs and Final
Proposals. **[Thank you for your comment. We will consider making a
change.]{.underline}**

21\. Paragraph H.6.3. -- Please confirm that the draft IDIQ does not
require drawings prior to \"TO\" award. Lack of design detail prior to
TO award places upward pressure on contractor pricing, as less design
detail drives greater cost/price contingency. **[This DRFP did not
specify drawings. However, it didn't prohibit the agency from requiring
drawings. We will consider making a change to the
document.]{.underline}** Also, in Volume II, there is no explicit
requirement for cost breakdown or cost/price justification. The IDIQ's
silence regarding cost and price justification is misleading to
offerors. **[Sorry, but]{.underline} [we don't understand what is meant
by misleading. As a reminder, in accordance with 10 CFR 436, ESPCs are
required to be firm fixed price contracts and detailed cost breakdowns
are not typically required in a firm fixed price
contract.]{.underline}**

22\. Paragraphs H.8.2.A. and H.9 -- Both paragraphs prescribe the
relationship between the ESCO and third-party financiers who have no
privity of contract with the government. In many cases, existing master
purchase agreements between ESCOs and financiers prescribe requirements,
such as financiers being listed as a co-beneficiary on performance
bonds, the establishment of financier's interest, disclosure of
government notifications, and various response times. The prescriptive
nature of the draft IDIQ certainly demonstrates a willingness for the
government to "step into the shoes" of the ESCO and assume a portion of
the risk now assumed and managed by the ESCO. In the best case, it
creates inconsistency with numerous existing agreements between
financiers and ESCOs. **[Thanks for the comment. H.8.2.A and H.9 were
not intended to change existing practices. In fact the clauses cited are
nearly verbatim from the existing contract clauses H.17 and
H.18.]{.underline}**

23\. Attachment J-2 -- Does the introduction of "related operation and
maintenance expenses" into the definition of "Energy Cost Savings"
conflict with "Energy-Related Cost Savings?" In its current form, it is
confusing. **[We don't think that the definitions conflict with each
other but we can see where there is "overlap" in the definitions and
will consider a change.]{.underline}**

24\. Attachment J-2 -- Is it intended that "Government Defined Project"
equate to "Government Initiated Method" project IAW H.3.1.? In its
current form, it is confusing. **[Yes, the government defined project
equates to the government initiated method. We will
clarify.]{.underline}**

25\. Paragraph J-6.2. -- The "Placement of Pricing Information" section
and table should have an introductory paragraph. **[Thanks for
the]{.underline}** **[comment. We will consider making a
change.]{.underline}**

26\. Please confirm that DOE intends to conduct competitive selection
based on site-specific proposals. **[DOE confirms this.]{.underline}**
Does the site-specific proposal purposefully exist, or is it a
carry-over from the initial DOE solicitation? **[More information needs
to be provided in this question to enable a response.]{.underline}**
Given a large and growing ESPC industrial base and more experienced
government ESPC program offices, DOE should confirm the necessity for
site-specific competition to make competent IDIQ awards in light of the
overall cost to the ESCO industry. **[More information needs to be
provided in this question to enable a response.]{.underline}**

27\. Please clarify if the scope of the IDIQ is national or worldwide.\"
**[There are no restrictions to geographic location cited in the DRFP.
Therefore, projects could be performed worldwide.]{.underline}**

\"1. The DRFP limits the number of awardees to 10. A larger number of
qualified contractors would ideally facilitate more projects, more
competition and greater project diversity. What's the point of limiting
the number of "qualified" contractors; it is like giving a test to a 100
students and saying only 10 can pass, no matter how high the score for
the11th student, and so forth. As a result of limiting the contractors
to 10, the competition for Task Orders (TO) will also be limited.
**[Thanks for your questions and comments. Regulations require DOE to
provide potential offerors an estimated number of awardees. The Draft
RFP provided flexibility to award more or fewer master IDIQ contracts as
DOE deems appropriate.]{.underline}**

2\. The DRFP states there are no geographic boundaries for award of the
master IDIQ contract. Since there are no geographic boundaries for
issuing Task Orders, we recommend in a similar vein that regional ESCO's
be allowed to become "qualified" and considered for the master IDIQ
award. **[Thanks for the comment. Regional ESCOs will not be prohibited
in competing for a master IDIQ contract. In order for any contractor
(national, regional, or small business) to be considered for an award
they must be on the DOE list of Qualified ESCOs. Please check the EERE
FEMP website for instructions on how to become a DOE Qualified
ESCO.]{.underline}**

3\. C.12 Energy Efficiency & Renewable Energy (EERE) and Water Project
Financial and Incentives, page 19. The contractor has the responsibility
for investigating all incentives programs, emission credits, etc. We
suggest that this responsibility be shared with the Government. The
Project Facilitator (PF) should support this effort since the PF will
advise the agency through development and execution of Task Orders.
**[Thanks for the comments. We will consider making the
change.]{.underline}**

4\. With respect to the stated goal of focus on renewable technologies,
the contract term should be allowed to be extended beyond the proposed
limit (11yrs) for renewable TO's. This extension would be an incentive
to both the agency and the contractor to implement these riskier
projects. **[Although the master IDIQ contract term is limited to a
maximum of 11 years, the task orders that are issued against it can have
a term of up to 25 years.]{.underline}**

5\. Regarding the Shared Savings Incentive Idea, we recommend that
excess savings be banked and retained to leverage additional investment
which is in the interest of the agency and the contractor. This
additional investment could either be paid for directly out of the
excess savings, in which case it would become guaranteed, or it could be
used as seed money to create more energy savings. For example, the
excess savings could be used to upgrade to newer, more efficient
technology or, to expand the reach of the existing TO, to facilities or
systems not covered by the TO. This would provide an incentive and
reward for the contractor for diligence and effectiveness (win/win),
without setting up a windfall profit incentive which would be certain
win/lose. The contractor would have to earn the excess savings in order
to profit by them.\" **[Thanks for your comment. We will consider your
suggestion.]{.underline}**

\"Comments of the Federal Performance Contracting Coalition\
In Response to Draft RFP DE-RP36-06GO96031\
General and Overview Comments The Federal Performance Contracting
Coalition appreciates the opportunity to respond to the request for
comments on the Draft RFP. We also appreciate the fact that a draft was
provided. We firmly believe that this critical step in the procurement
process will result in a better contract overall. The Federal
Performance Contracting Coalition (FPCC) is a group of Energy Services
Companies (ESCO) advocating for increased federal use of Energy Savings
Performance Contracts (ESPCs). The FPCC is the primary organization
representing the Federal ESPC market. Our members, who represent 90% of
the Federal ESPCs, include Ameresco, Chevron Energy Solutions,
Constellation Energy Projects and Services Group, Honeywell
International, Johnson Controls, NORESCO LLC, and Siemens Building
Technologies. Our seven companies have amassed almost 350 individual
comments on the DRFP, which we are providing individually; however, we
have commented on 16 specific provisions as a group. Importantly, we
also wanted to provide these overall comments and even some that might
be considered in addition to the current draft. Our individual comments
on the draft and this submission, all try to accomplish the goals of
"more, bigger, better and faster" Energy Savings Performance Contracts
in the Federal government. We have been working closely with
policymakers at DOE and the White House, as well as with the Legislative
Branch to facilitate "more, bigger, better and faster". We hope the
proposed ESPC contract vehicle would embrace the "more, bigger, better
and faster" goal; not be an impediment to it. In general, we are
concerned that the DRFP, in large part, does not substantially reflect
the stated goals in the cover letter. Ø In particular, we see proposals
that run directly counter to facilitating a streamlined proposal
process. Ø We fear that the overall direction of the contract
substantially and unreasonably shifts more risk onto the ESCO and
removes virtually all government accountability. This is in conflict
with the Public/Private partnership that is fundamental to successful
ESPC projects. Ø Although renewable energy is included in the
definitions section as an allowable ECM, they are not highlighted and,
we fear will be either overlooked or downplayed as a result. Ø
Additionally, we understand the focus on M&V, and we agree that it is
quite important; however, we also feel the various modifications to the
existing contract over the past few years have focused heavily on a
rigorous M&V protocol. We are concerned that more requirements in this
DRFP will be a disincentive to participation in the Super ESPC program.
We also offer comments that would allow the RFP to go further towards
facilitating "more, bigger, better and faster". For example, in the area
of M&V, just discussed, the contract increases the risk to the ESCO even
in cases where the government takes on the O&M. In the case of ECMs that
the government personnel maintain but do not accept responsibility for,
savings should be stipulated. If the government wants a guarantee then
the ESCO should maintain the equipment. Compensation from the government
must be forthcoming if they operate the ECMS themselves and cause
failure. The FPCC is concerned about the existing dispute resolution
process. We suggest the following expedited process: 1. The Agency CO
notifies ESCO in writing of any issues within 30 days of becoming aware
of said issues\
2. ESCO and agency discuss and attempt to resolve issues\
3. If unsuccessful, follow agency dispute resolution procedures\
4. Only after successful conclusion of steps 2 and 3, may the government
adjust payment to the ESCO We have commented on specific issues that
hinder the efforts to streamline the process but would suggest some
addition provisions that could further facilitate a quicker cycle. · We
would suggest establishment of an escalation procedure for stalled
projects. The Contract would state that any project in the IP review
stage for more than 30 days or in the IGA review stage for more than 60
days would be escalated to the head of the installation and the FEMP
director for resolution of bottlenecks. We would also suggest a cc to
the head of EERE and the ESCO Vice President or higher. · Since the IGA
is often directly impacted by the TORFP, it should be required that the
TORFP be issued within 30 days of the NOITA. · The government could
establish and maintain a team of knowledgeable, dedicated ESPC
contracting officers available for any agency requiring that resource
with appropriate fees charged to the project. · The contract could
remove the requirement for a preliminary proposal for any agency follow
on Task Order. The FPCC also believes that we could facilitate bigger
projects if we clarify the requirement that all incentives associated
with a project be rolled into that project. While the government expects
the ESCO to identify these incentives, they sometimes do not allow
inclusion in the project. We would encourage a few additional provisions
in the RFP. These include language that allows for a minimum stipulated
savings amount associated with metering. This will drive meter inclusion
in more projects per legislation and Executive Order. We would like to
see clear language allowing PPAs under an ESPC. And we would request
more attention in the document to renewable energy inclusion in ESPCs.
There is a great emphasis on renewable energy in the federal government,
yet a reticence to contract for it under an ESPC without extremely clear
guidance. Finally, we continue to believe that the DOE could conduct its
effort to bring more contractors to the ESPC program through what we
call an "on ramp" and without requiring the derailment of current
efforts to get projects in the ground. Conducting a "full and open"
competition of all contractors -- both those who currently have Super
ESPCs as well as new entrants -- will likely result in a lengthy source
selection process that duplicates the prior competitive process and
significant disruption and delays in the program. This will slow
critical efforts to revitalize the program after a temporary suspension
in 2003 and will hamper the federal government's efforts to reduce
energy usage government-wide by putting the program back in flux. The
quickest, most efficient way to expand the Super ESPC program would be
to:\
· extend the ordering period of the existing Super ESPC contracts --
which were already subjected to a rigorous competitive selection
process;\
· complete the current competition as scheduled to allow DOE to select
new, high quality companies to join the existing pool of Super ESPC
contractor; and,\
· update existing contract terms to reflect changes under the upcoming
RFP, including worldwide contract scope Thus, DOE would maintain the
existing cadre of contractors, enabling it to seamlessly continue the
program, while conducting a new selection process to add qualified
companies to the program. DOE may undertake this strategy because the
Energy Policy Act of 1992 gave the Department of Energy authority to
enter into contracts for up to 25 years and to use more flexible
procurement procedures for energy savings performance contracts. This
plan would be consistent with the numerous examples of multiple award
vehicles established by other agencies that provide "on-ramps" to expand
the universe of participating contractors for IDIQ contracts such as the
Super ESPCs. Of course, only contractors meeting the highest quality
standards would be added to the program, ensuring the continued high
caliber of the work carried out for participating government agencies.
Again, thank you for the opportunity to provide comments to the DRFP.
The FPCC had originally planned to respond only once with all of our
compiled comments; however this was impossible with IIPS. So we might
conclude by suggesting that DOE and the GO evaluate whether a more
updated system is warranted or to allow for industry comments in a more
traditional approach (i.e. submitted to the C.O. and then posted on the
IIPS to insure transparency for all interested parties). This comment is
made in an effort to serve both industry and the government better.
**[Thank you for your comments. We will consider making changes to the
DRFP. We will also schedule an "Industry Forum" as an additional
mechanism for comments.]{.underline}**

\"Comments of the National Association of Energy Service Companies\
In Response to the DRAFT REQUEST FOR PROPOSALS (DRFP) NUMBER\
DE-RP36-06GO96031(Draft) The National Association of Energy Service
Companies (NAESCO) appreciates the opportunity to respond to the request
for comments to the issuance of the Draft Request for Proposals dated
May 23, 2007. NAESCO\'s current membership of about 85 organizations
includes firms involved in the design, manufacture, financing and
installation of energy efficiency and renewable energy equipment and the
provision of energy efficiency and renewable energy services in the
private and public sectors. NAESCO members deliver about \$4 billion of
energy efficiency projects each year. NAESCO numbers among its members
some of the most prominent companies in the world in the HVAC and energy
control equipment business, including Honeywell, Johnson Controls,
Siemens, Trane and TAC/Tour Andover. Our members also include many of
the nation\'s largest utilities: Pacific Gas & Electric, Southern
California Edison, New York Power Authority, and TU Electric & Gas. In
addition, ESCO members include affiliates of ConEdison, Pepco Energy
Services, Constellation, PP&L, DMJM Harris and Direct Energy. Prominent
national and regional independent members include Custom Energy,
NORESCO, Onsite Energy, The EnergySolve Companies, Ameresco, UCONS,
Chevron Energy Solutions, Synergy Companies, Wendel Energy Services,
WESCO and Energy Systems Group. NAESCO member companies have delivered
energy efficiency projects at federal facilities for over fifteen
years.\
NAESCO believes that it is qualified to offer comments in this
proceeding by virtue of its long history of involvement in the
development and implementation of the federal energy efficiency programs
since 1986. NAESCO has provided comments, testimony, and guidance both
to the Departments of Energy and Defense, GSA, and HUD regarding the
development and implementation of Energy Savings Performance Contracts
(ESPCs) as well as provided written and oral testimony before the
relevant Congressional Committees. At the state level, NAESCO has been a
party to the development of major energy efficiency programs in
California, Colorado, Texas, Kansas, Illinois, Michigan, Maryland, New
Jersey, New York, Massachusetts, Vermont and Connecticut during the last
decade. In addition, NAESCO has worked with the state energy offices of
Florida, Washington, North Carolina, South Carolina, Virginia,
Mississippi, Louisiana, Tennessee, and Georgia to help train public
sector facility managers and program managers about optimizing the
effectiveness of energy efficiency program design and implementation.
NAESCO representatives currently serve on the Program Advisory Groups,
which were constituted by the California Public Utilities Commission to
advise the California investor-owned utilities on energy efficiency
program administration, and on the System Benefits Charge Advisory
Group, which is constituted by the New York Public Service Commission to
evaluate the New York energy efficiency programs, which are administered
by the New York State Energy Research and Development Authority
(NYSERDA), rather than the investor-owned utilities. NAESCO has also
recently served on the Energy Efficiency Task Force of the Clean and
Diversified Energy Action Council of the Western Governors Association
and serves as an Observer on the National Action Plan for Energy
Efficiency (NAPEE) Leadership Group.\
Based on this extensive experience, NAESCO believes that it has a deep
working knowledge of the various models of effective energy efficiency
program design and maximizing the delivery of energy and dollar savings
as well as the economics of virtually all types of energy efficiency and
demand response programs that are currently in the field in the U.S. We
hope that this knowledge will be useful to the Department of Energy as
it considers the optimal way to "promote the use of renewable energy
technologies, acquire energy and water conservation services, reduce
energy and water consumption and/or associated utility costs, and reduce
energy and water-related operations and maintenance costs." Memorandum
at 1 Summary of Comments\
NAESCO offers the following comments in response to the Draft Proposal
dated May 23, 2007.\
1) NAESCO believes that setting the master contract at a one billion
dollar limit against which all task orders will be written is
unrealistically low and will not result in investment sufficient to
achieve the multiple resource acquisition goals set forth in the Draft
Proposal. 2) While the draft RFP states that the use of renewable
technologies in future ESPCs is highly desirable, there is a general
lack of guidance as to how the cost impact of renewable technologies
will be assessed and evaluated when considering the price reasonableness
requirement among other requirements imposed on the contractor. 3) The
procedure for awarding Task Orders (TOs) seems to add requirements not
found under the current process. This appears to run counter to the goal
of streamlining the process and reducing the transaction cycle time. The
measurement and verification requirements, the commissioning
requirements, the expansion of contractor responsibilities all add to
the length of the transaction cycle as well as increase the ESPC cost
thereby reducing dollar savings. 4) Milestones should be established for
expediting the agency selection and evaluation process leading to a
shorter process cycle. Discussion\
NAESCO offers the following discussion on the major comments summarized
above.\
1) The master contract is set at a one billion dollar limit against
which all task orders will be written with a minimum task order of
\$5,000. While one billion dollars may sound in aggregate like a
sizeable commitment to the ESPC program, it actually translates to about
\$500-600 million in actual work to be implemented at federal facilities
during the five year base period or about \$100-120 million per year in
direct investment to be allocated among all awardees. This is actually
less than current investment levels and dramatically less than the
accelerated investment levels that policy makers have stated they want
to see invested in energy efficiency and renewable technologies at
federal facilities. It is not clear to NAESCO why the one billion dollar
limit was established when the Draft Request expands the range of goods
and services being sought . The limit as currently set is unrealistic to
achieve the multiple objectives set forth in the Draft Request. In order
to achieve the \$500 million per annum investment that has been
suggested by DOE policy makers in public meetings as their objective,
the base period master contract limit would need to be set at a minimum
of \$5 billion. Permitting a minimum task order of \$5,000 appears to be
a residual requirement from the original contract terms and no longer
serves a purpose. The transaction costs for such a small task order
would negate any real cost savings. **[Thank you for your comment. We
will consider making a change. IDIQs require both a maximum ceiling and
minimum government guarantee.]{.underline}**

2\) The draft states a clear preference for contractors to integrate
renewable technologies into the ESPCs to be implemented. While combining
energy efficiency and renewable technologies into a single project
drives down the payback of the renewable technologies by blending the
paybacks of both technologies, it still does not mean that projects
employing renewable technologies will price out at the same dollar
investment as if there were no renewable technologies employed. There is
no guidance about how renewable energy technologies are to be integrated
into the project design given the cost factors. For example, there is a
price reasonableness requirement which may in effect preclude the use of
renewable technologies given the higher costs associated with these
technologies. Since it is the stated objective of the RFP to accelerate
the use of renewable technologies in future ESPC TOs, it would be very
useful for DOE to provide guidance as to how renewable energy
technologies should be evaluated from a price reasonableness perspective
and whether the evaluation process by federal contracting officers will
differ when renewable technologies are included in the project design.
**[The requirement is expected to result in an honest and reasonable
assessment of the inclusion of renewables, not mandate inclusion. Price
reasonableness for ECMs (renewables and non renewables) can be
determined through several methodologies. DOE-FEMP has a Guide to Price
Reasonableness for ESPCs on the EERE FEMP website.]{.underline}**

3\) New contractor requirements will extend the transaction cycle and
are not delineated clearly enough which will likely lengthen the
transaction cycle and slow down the project tempo. **[Thank you for your
comment. Unfortunately, we don't know what "new contractor requirements"
this comment refers to.]{.underline}**

a\) The imposition on the contractor of determining the sources, value
and availability of financial, tax, and incentive options under C.12 is
not itself unreasonable. However, the section repeatedly uses the term
"responsibility of the contractor" without any definition of the legal
reach of the term "responsibility". We suggest that the term
"responsibility" be replaced with the requirement that the contractor
use all best efforts to assess the range of appropriate incentives
available for the project and utilize as appropriate in establishing
project costs and financing options. NAESCO also believes that specific
language be included in the final draft clarifying that these incentives
may be utilized in the financing of the project. **[Thanks for the
comments. We will consider making the changes. The value of the
incentives will be identified in schedule TO-3]{.underline}**

b\) Discussions as to whether commissioning requirements should be
included in this RFP or in a stand alone document are still underway
according to the notation currently comprising Attachment J-12. We
believe that any imposition of commissioning requirements should be
linked to the base contract document. There can be significant costs
associated with commissioning and these costs need to be identified and
rolled into the cost and termination schedules so that all parties are
aware of the incremental costs incurred by the imposition of the
commissioning requirement. **[Thanks for the comment. We will consider
making the change.]{.underline}**

c\) The requirement for the incorporation of an Investor Deal Summary
and Standard Financing Offers in the form of a Selection Memorandum
under H.7.3. states that the process may be subject to an audit by the
agency. There is no indication of what types of data an audit would
examine or the objectives of such an audit. If an audit is contemplated,
additional information is required as to firmly circumscribe the reach
of the auditors, the time frame for conducting such an audit, and the
sanctions that could result. We are not sure of the intent behind this
requirement and generally do not believe it is necessary. However, if
the requirement remains in the final version of the RFP, additional
clarifying language is necessary. **[Thank you for your comment. We will
consider making a change.]{.underline}**

d\) In section C.4.2, there is now a requirement that the Measurement
and Verification plan identify buildings or spaces not affected as well
as energy or water using building systems or uses not affected by the TO
be identified. We suggest that this requirement be removed as it places
additional responsibility on the contractor and generates additional
costs and does not provide sufficient value to the federal agency to
justify the time and cost. A well crafted M&V protocol should contain
all the answers to the inquiry in any case. **[Thank you for your
comment. We will consider making a change.]{.underline}**

e\) Sections C.6.1, C.6.3, C.7.3 and C.8.3 provide the government with
the unilateral ability to declare itself free from responsibility for
its actions with regard to operation of the energy conservation measures
(ECMs) including instances where it had oversight of direct operations,
preventive maintenance and repairs. This is patently one sided
assignment of risk. The relevant language must be changed so that the
parties are responsible only for the damages related to actions which
are directly attributable to their respective agents. This is consistent
with the existing contract language. **[Under the applicable ESPC
statute, the Government is neither allowed nor required to undertake the
risk of ECM repairs or maintenance. Rather, that responsibility lies
with the contractor. See 42 U.S.C. § 8287(a)(2)(A). In addition, because
the contractor is responsible for the level of guaranteed savings, the
contractor bears the ultimate responsibility for the proper repair,
maintenance and operations of the equipment installed. Although
*responsibility* for repair, maintenance or operations remains with the
contractor, *performance* of these activities may be undertaken by
either the contractor or agency, as negotiated. Where the agency
performs the activities, the contractor is required to provide adequate
work requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

f\) In the DOE IDIQ contract currently in effect, responsibility for O&M
record keeping is assigned to the party providing O&M service. Section
C.6.4 of the draft RFP states that the ESCO is responsible for record
keeping regardless of whether or not it is performing the O&M service.
We believe the existing provision should be retained which makes the
party with access to the data responsible for record keeping. **[We are
considering clarifying language to address your comment. The provisions
of the existing IDIQ contract are substantially the same as those set
forth in Section C.6.4 of the draft RFP. The contractor is responsible
for preparing procedures, schedules, and logs which will be completed by
the party performing the activities. Regardless of which party completes
the logs, they are ultimately collected by the contractor for use in the
annual M&V report.]{.underline}**

g\) The preliminary assessment requirements under H.4.1 are too onerous
and costly for the contractor. At a minimum, H.4.2.B. should be revised
and requirements g-j should be deleted. There is subsequent opportunity
under the IGA requirements set forth in (H.5) to address these
additional concerns. **[Thank you for your comment. We will consider
making a change.]{.underline}**

4\) There should be timelines established for each significant piece of
the review process and an overall time limit placed on the agency review
process. **[Thank you for your comment. We will consider making a
change.]{.underline}**

a\) There should be a process established by which stalled projects
which have been under consideration for more than 45 days be referred to
a designated individual(s) for resolution within 10 days. Contractors
should be made aware of referral of their project and given the
opportunity to meet with the designated individual(s) to discuss the
stalled project and assist in the resolution process. **[Thank you for
your comment. We will consider making a change.]{.underline}**

b)The invoicing process set forth in G.3 should be clarified so that
contractors are notified within ten days of receipt of the invoice by
the federal agency whether any part of the payment will be disputed,
withheld, or delayed. The contractor will also be given the immediate
opportunity to help cure the event which the agency has determined to be
the source of the payment dispute or delay. Conclusion **[Thanks for the
comments. The Prompt Payment Clause in Section I already requires the
agency to notify the contractor when an invoice is rejected and the
reason why it is rejected.]{.underline}**

\"Cover Letter. Proposed Period of Performance. Is this to Site Award,
IP Start, IP finish, DES Start, DES finish, Award, Completion of
construction or completion of follow on modifications to a prior award
(still in construction). This appears to be the Ordering Period, not the
Period of Performance (the 25 year contract term) Please clarify.
**[Sorry, we don't understand this question.]{.underline}** Cover Letter
5.2. Excess savings should at least be considered to lower prior or
future shortfalls. This would lower risk profile. Consider allowing
excess savings to be considered against savings shortfalls. **[Thank you
for your comment. We will consider it.]{.underline}** Cover Letter.
Contract related information such as geographic region, period of
performance, shared savings incentive should be captured in the main
RFP. Add similar details into RFP to be consistent. The cover letter
indicates that the DRFP governs, yet it is missing clarity such as
geographic limits, etc.\" **[Thank you for your comment. We will
consider making a change.]{.underline}**

Dear Mr. Berg, Consolidated Edison Solutions, Inc. ("ConEdison
Solutions") is pleased to be working with the DOE in developing and
implementing the country's program for energy independence through the
use of Energy Performance Contracting. We look forward to responding to
the RFP DE-RP 36-06GO96031 and working with the Department of Energy to
achieve its energy goals. We respectfully submit the following comments
on the draft RFP DE-RP 36-06GO96031. In developing our comments to the
May 23, 2007 Draft RFP (the "Draft RFP") we considered the goals of the
DOE and the ability of the draft RFP as written to achieve those goals.
The goals as outlined in the draft RFP are as follows:\
• Focus on Renewables\
• No geographic boundaries\
• Greater Focus on Measurement & Verification savings\
• Consistent Terminology\
• Streamlining Initial Proposal Process • Price Evaluation Methodology\
• Incentive Plan\
o Support emerging technologies\
o Greater savings from optimal Operations & Maintenance\
o More effective use of Metering and Verification\
o Sharing of excess savings between ESCO's and Agencies Renewables\
The incorporation of renewable technologies and the ability to include
the benefits from various energy sources is of significant importance to
our country's security through diversification of our nation's energy
portfolio. However, the provisions in the RFP to address renewables
could be enhanced.\
• The process should recognize that the incentives available in the
market place may not alone meet the payback requirements to implement
the projects and thus independent funding may be required.\
• Market incentives associated with renewable energy projects such as
tax credits, and accelerated depreciation are subject to tax code
changes while carbon trading values are not reliable given the infancy
of the market and thus should not be included in the project cash flow.
In the current DOE IDIQ contract these types of incentives have separate
cash flow statements and are generally stipulated. Treating incentives
in this way would reduce the risk premium associated with the
implementation of renewable projects while achieving the agency's
goals.\
• Under the terms of the RFP, the evaluation of renewable opportunities
should be optional rather than required. Any evaluation should be
considered in the context of the whole facility and the limitations that
are inherent in employing renewable technologies. Forcing evaluations of
renewable technologies where no practical opportunity exists only
increases costs with little or no benefit.

Contract Value \$1 billion has been established as the total contract
value for this DOE program. Given the DOE's goal of trying to increase
the investment rate in these projects to \$500-\$700 million annually,
the targeted level of \$1 billion over an 11 year window seems
inadequate. Setting funding levels that do not support the required
initiatives will minimize market focus and resources. In fact, since the
DOE program mandates that energy savings must equal projected costs, it
would be appropriate and supportive of a broader program to have no
funding cap. O&M Services **[Thank you for your comments. We will
consider making changes to the DRFP.]{.underline}**\
The O&M section has been modified extensively to increase the ESCO's
liability and risk for equipment performance to the ESCO. Making the
ESCO responsible for performance of systems the ESCO installs but does
not maintain imposes risks on the ESCO that it is not in a position to
control. Therefore, ESCO's are likely to seek to mitigate the increase
in risk by increasing the cost of implementing the projects. The three
following provisions are examples of shifting risks from the party in
the best position to control the risk (i.e., the Government or its
contactor providing the O&M services) to the ESCO. • C6.1 "Regardless of
who performs the operations, the contractor shall be responsible for the
operations of all installed ECM's." The DOE IDIQ contract currently in
effect can be interpreted that if the government were to assume the O&M
responsibilities then responsibility of contractor might be alleviated.\
• C.6.3 --The DOE IDIQ contract currently in effect indicates that if
the government assumes O&M services and doesn't perform then they will
compensate the ESCO for any losses as a result. The Draft RFP adds that
the contractor must periodically inspect the work and report any
shortfalls in maintenance procedure and if the Government fails to
perform its duties it "\...may give due consideration to the contractor
for losses directly attributable to that material failure." This would
appear to give the Government the ability to underperform while the ESCO
could be left to absorb the consequences. **[Under the applicable ESPC
statute, the Government is neither allowed nor required to undertake the
risk of ECM repairs or maintenance. Rather, that responsibility lies
with the contractor. See 42 U.S.C. § 8287(a)(2)(A). In addition, because
the contractor is responsible for the level of guaranteed savings, the
contractor bears the ultimate responsibility for the proper repair,
maintenance and operations of the equipment installed. Although
*responsibility* for repair, maintenance or operations remains with the
contractor, *performance* of these activities may be undertaken by
either the contractor or agency, as negotiated. Where the agency
performs the activities, the contractor is required to provide adequate
work requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

**[\
]{.underline}**• C.6.4 -- As of MOD 5 of the DOE IDIQ contract currently
in effect the wording assigns responsibility for O&M record keeping is
assigned to the party providing O&M service. If the ESCO is providing
O&M services then it is responsible; if the Government is responsible
for providing such services then it is responsible for record keeping.
The Draft RFP states the ESCO is responsible for record keeping
regardless of whether or not it is performing the O&M service. This puts
the ESCO in the position of being responsible for record keeping with no
assurance of access to the data required for accurate records. **[Access
and oversight requirements should be communicated with the agency and
specified in the TO.]{.underline}** Metering & Verification The Metering
and Verification (M&V) provisions have been enhanced to provide for
increased validation of savings through direct monitoring and metering.
Metering and monitoring protocols under the current DOE IDIQ contract
are established based on the risk of non-performance of the ECM. This
approach balances the goal of meeting established performance levels
with the cost of the metering and monitoring services. Since the cost to
install and provide reports is considerable and so should be aligned
with project risk so as not to unnecessarily increase the
post-installation cost of a project. **[Thank you for your
comment.]{.underline}** Implementation Process To facilitate timely
implementation of projects, we recommend time limits for review of
design documents. As projects linger in the review and approval process,
the cost of implementing the project increases as additional resources
are dedicated to facilitate the process and material and contractor
costs as bids go stale.. Developing a mutually agreed to and realistic
timeline can only help both parties achieve the mutual goal of
implementing projects. **[Thank you for your comment. Nothing in the
DRFP prohibits the contractor and agency to mutually agree to a
timeline.]{.underline}** The Draft RFP does not contemplate
reimbursement of ESCO costs associated with performing a preliminary
assessment or the IGA. If perhaps there are other sections with in the
Draft RFP that allow for the recovery of these costs we did not see
them. We therefore recommend that a provision be developed that provides
for payment of these services unless the work is unsatisfactory.
**[Thank you for your comment. We will consider making a
change.]{.underline}** Payment of Guarantee Shortfall The Draft RFP
states that the financing payments in the years following a shortfall
will be adjusted to reflect such shortfall. Any payments required to
meet guarantee shortfalls should be addressed outside of the financing
vehicle. Direct payment by the ESCO or a credit to future projects would
reduce time and project costs and not interfere with the financing
agreements. **[Thank you for your comment.]{.underline}** Consequential
Damages We request that the Government consider incorporating a waiver
of consequential damages. In construction contracts with private owners,
it is virtually unheard of for a contractor's liability not to be
subject to a waiver of consequential damages. Every well-known form
contract, including those of the Design-Build Association of America,
the Associated General Contractors of America and the American Institute
of Architects, includes a waiver of contractor's liability for
consequential damages, the reason being is that consequential damages
are undefined and unlimited. A waiver of consequential damages by the
Government would not be unprecedented. For example, in February 2007,
the GSA adopted regulations (48 C.F.R. 52-212-4) which provide in
relevant part (in subparagraph (p) -"Limitation of Liability") as
follows: "Except as otherwise provided by an express warranty, the
Contractor will not be liable to the Government for consequential
damages resulting from any defect or deficiencies in accepted items." In
the rulemaking leading up to adoption of the waiver provision shown
above, comments were submitted by a number of parties, including the
ABA's Section of Public Contract Law, which expressed the view that the
waiver of consequential damages should be extended beyond just "accepted
items" to include all "commercial services", as well as the delivery of
all commercial items, stating that "potential open-ended, unlimited
liability poses a significant barrier to commercial companies desiring
to do business with the government" and, at a minimum, requires those
companies willing to do business to price in a "risk premium" into their
proposals. Furthermore, with particular respect to contracts to install
ECMs, in 2004, contracting officers from the Army, Navy, Air Force and
other DOD agencies worked together with government lawyers, attorneys
for some energy companies and representatives of the Edison Electric
Institute to establish a standard agreement for installing ECMs under
Utility Areawide Contracts. The publicly available DOD model agreement
includes a full waiver of consequential damages (clause WR 3 of the DOD
model agreement provides "The Utility shall not be liable for any
special, incidental, indirect, or consequential damages, connected with
or resulting from the performance or non-performance of work under this
Agreement or subsequent \[Task Orders\]") despite the fact that the
Federal Acquisition Regulations is silent on consequential damages in
the context of such construction agreements. We think that the DOD model
agreement represents the best practices in this area and that DOE should
consider incorporating such a provision in its model contract under its
program. **[Thank you for your comments and extensive research. We will
consider making a change to the RFP.]{.underline}** Conclusion Thank you
for the opportunity to submit these comments in response to the Draft
RFP. We look forward to working with the DOE, facilitating the process,
and improving the overall performance of the program for the DOE. If
there is any way in which we can help the DOE in developing the final
RFP we will gladly support any invitation. Below are our detailed
comments which are labeled according to the sections of the draft. Thank
you very much for your time and consideration. Sincerely,\
James J. Dixon, P.E.\
Vice President, Energy Services Comments Draft DOE RFP RFP Process\
L.2.(3)(ii)(A)(1) Request for clarification. It is required that the
bids be submitted electronically. To avoid disputes it appears we have
to submit it a day early. Is this the case? **[No, but computer glitches
do occur from time to time so give yourself some extra time to upload
the proposal. The upload process can take a significant time and DOE is
not authorized to accept any portion of a proposal that is received past
the date and time identified in the RFP.]{.underline}** L.2.A(9)
Instructions to Offerors -- Competitive Acquisition What does this term
cost realism mean? **[Cost realism means " a realistic cost in relation
to what is proposed based upon a price analysis" as defined
by]{.underline}** **[5215.404-1 (DFARS 215.404-1) which states: (d)
*Cost realism analysis.* A price analysis approach where there is
adequate price history may also be a suitable and efficient means to
evaluate cost realism. The amount of data required will be dependent
upon the complexity of the procurement and the data already available to
the contracting officer ...cost realism is not about the exact cost
estimate. It\'s about the system of logic, the assumptions about the
future, and the reasonableness of the historical basis of the estimate.
That is, it\'s about the things that make up the *foundation* of the
estimate.]{.underline}**

L.10.2.A. Part I Indefinite Delivery/Indefinite Quantity Contract --
General Contract Capabilities: The RFP asks for references for 2
subcontractors that will be working on the projects. Depending where the
opportunities are within the country will dictate the sub-contractors.
Does this apply only to the walk-thru facility? **[Offerors may provide
past performance information on major subcontractors that are
anticipated to be used either at the sample project site, and/or on
other potential projects, e.g., with whom the offeror anticipates
working on a national basis.]{.underline}**

Also if the document is to be provided electronically this is in
conflict with the instructions for the references which must come from
the reference to the DOE directly. **[Past performance references are
not expected to be part of the electronic proposal submitted via IIPS.
Please follow submission instructions in L.10.2.A and Attachment
L-4.]{.underline}**

Project Implementation Process Section G.1 -- Master IDIA contract
administration Why is there a DOE contracting office and DOE contracting
specialist. The job description is the same. **[The duties of a Contract
Specialist (CS) are to assist the Contracting Officer (CO) in
administering the master IDIQ contract. Often times the CS can handle
issues without involving the CO.]{.underline}** H.4.1 Preliminary
Assessment The agency will not be liable for any costs associated with
PA audits or preparation of the PA. Modify to the following: The agency
will not be liable for any costs associated with the PA audits or
preparation of the PA unless a TO is awarded. All costs of the PA will
be rolled forward into the TO and included within the IGA costs. Costs
for the IGA will be clearly labeled in the Schedule TO-2. **[Thank you
for your comment. We will consider making a change.]{.underline}** H.6.2
Preliminary Assessment\
Final proposals will be reviewed in accordance with the instructions set
forth in\
the TO RFP. The agency will not be responsible for any costs incurred,
such as proposal\
preparation costs or the costs incurred in conducting the IGA unless the
contractor fails to meet requirements within its control for the TO RFP.
If the Contactor meets the requirements then they will be reimbursed for
the cost of the IGA as provided in Schedule TO-2 as submitted in the PA.
Attachment J-6.2 Table Placement of Pricing Information Directly
contradicts previous statements in the proposal that says we cannot
recover Preliminary Assessment costs. This table implies that all costs
are recoverable. **[Thank you for the comment. We will consider making
the change.]{.underline}** Financing Concerns Section G.5.1 Payment to
the Government for Annual Guaranteed Savings Shortfall A shortfall might
trigger an adjustment to the payment schedule, which would be very
cumbersome (requiring a mod to the task order financial schedules, which
requires a mod to the assignment agreement with lender (which could
involve financial penalties depending on the change). CES recommends the
contractor reimburse shortfall to agency. **[Thanks for the comment. We
will consider making the change.]{.underline}** C.12.1 EERE Financial
Incentives from State or Utility Programs Incorporation of EERE
incentives, tax credits, and emission credits into the projected cash
flow places an additional level of risk on the project that is borne by
the ESCO. Historically benefits such as these have been reflected in a
different schedule and not included in the overall project cash flow.
Because we do not know the long term value we would recommend reflecting
these benefits in a separate sheet. In addition, in what schedule do we
"describe how incentives affect post acceptance performance period cash
flow, such as principal repayment or reducing financed amount."
**[Thanks for the comments. We will consider making the changes.
Incentives should be addressed in schedule TO-3]{.underline}** C.8.4
Replace the term "Escrow account" with "holding account to be held by."
The TO shall specify how funds in the account will be dispersed during
and at the end of the term." Modify the statement to "The TO shall
specify how and for what purposes." **[Thanks for the comment. We will
consider making the change.]{.underline}** E.3.1 Partial project
acceptance This section implies that implementation period payments are
subject to change due to the actual project acceptance date. This will
create issues for lenders assuming a rate was fixed for the amount
financed at task order execution. **[Thanks for the comment. We will
consider making the change.]{.underline}** H.7.2 A. Selection Memorandum
I Is this a form? If so where is it? **[No, there is no specific form
for the Selection Memorandum. It should be in a memorandum format
containing the information identified in H.7.2.A.]{.underline}** H.8.1.
"Acceptable evidence of surety's commitment" What is acceptable
evidence.?. **[The contractor and agency will communicate on this topic
and reach an understanding.]{.underline}** Is it actual bonds as
outlined in H.8.2? **[Yes.]{.underline}** Is this necessary since the
actual bonds need to be presented shortly after showing evidence of
surety's commitment? **[Yes.]{.underline}** H.9 The request to change
contractor has been deleted. Has this been picked up some place else.
**[No]{.underline}** H.10.2.A. "Prior to commencement of work, the
contractor shall furnish to the agency CO, a copy of the insurance
policy endorsement." It should be a copy of a certificate evidencing
coverage outlined in H.10. **[Thank you for your comment. We will
consider making a change.]{.underline}** Attachment J-2 Definitions Add
to the Definitions Section: Acceptance -- The term Acceptance means an
authorized representative of the agency has inspected and accepted the
Contractor Installed Energy Conservation Measures, and that these
installed Energy Conservation Measures are operational and comply with
the Task Order's design documentation and intent as verified by ECM
Commissioning, and with the energy savings performance requirements as
confirmed by the Measurement and Verification Reporting. Agency
Acceptance shall allow the Contractor to be paid but shall not relieve
the Contractor from responsibility for continued compliance with Task
Order requirements during the Task Order's term. **[Thank you for your
comment. We will consider making a change.]{.underline}** Attachment J-2
Definitions Outstanding Capital Investment (modify the definition as
follows: Remaining unamortized principal on total amount financed plus
any prepayment charges relating to prepayment of unamortized principal
for a specific TO project: outstanding capital investment dollars
specified in the event of cancellation or termination, and represents
the minimum termination liability due from the government to the
contractor for that time period. **[Thank you for your comment. We will
consider making a change.]{.underline}** Attachment J-2 Definitions Add
to the list. Cancellation Ceiling -- Outstanding capital investment plus
any breakage fees negotiated for early cancellation of LTSA services.
**[Thank you for your comment. We will consider making a
change.]{.underline}** Attachment J-2: Guaranteed Annual Cost Savings
Last sentence "If actual savings fall short of the guarantee, the
contractor will pay back the shortfall over the next interval by
accepting lower payments." The payment shortfalls should be paid by the
vendor to the government and not interrupt the financing schedule.
**[Thank you for your comment. We will consider making a
change.]{.underline}** Attachment J-2 Definitions\
Project Interest Rate: "The contractor's proposed Added Premium, when
added to the index rate proposed by the contractor for a specific TO
project." Change to: The sum of the Index Rate plus the added premium
for a specific TO project. **[Thank you for your comment. We will
consider making a change.]{.underline}** Attachment J-2 Definitions Task
Order Term: The term of a TO has changed from only the performance
period under the current contract to implementation and performance
period in the draft. The maximum term of the TO is 25 years which means
that the financing terms is now less than 25 years. This just further
reduces what can be achieved. **[This appears to be a misunderstanding
of clause F.1.1 of the existing DOE ESPC contract. In both the existing
contract and DRFP the 25 year period starts on the date that the
delivery/task order is signed.]{.underline}** Attachment J-6.G.1. Column
(h): Where on TO1 is column h. **[H doesn't exist. We will attempt to
clarify.]{.underline}** Attachment J-6-G.3 Column (i): Where on TO1 is
column i. **[Column I does not exist. We will attempt to
clarify.]{.underline}** Attachment J-8.1 The provision on energy prices,
as a responsibility has been deleted. Who is going to bear the risk of
energy price volatility? **[The contractor and agency will negotiate
risk allocation, and it will be specified in the resulting TO. However,
payments to the contractor cannot exceed energy savings for that
year.]{.underline}** Schedule TO-1 (Preliminary Assessment -- PA)
Proposed Guaranteed Cost Savings and Contractor Payments: Will the ESCO
know the Task Order No. at the time the ESCO fills this schedule out?
**[The ESCO should coordinate with the agency to get this
information.]{.underline}** Schedule TO-1 (Preliminary Assessment -- PA)
Proposed Guaranteed Cost Savings and Contractor Payments: The total
number of line items is 24. For a project with less than a 12 month
implementation period there needs to be 25 lines. This also applies to
Schedule TO-1 (Final). **[Actually, there are already 25 lines on the
TO-1 schedules. We list 24 lines for the Post Acceptance Performance
Period and 1 line for the implementation Period for a total of 25
lines.]{.underline}** Schedule TO-2 Implementation Price by ECM: The
indirect cost column appears to be new, what is included under the
classification of indirect costs. **[Classification of costs as direct
or indirect is determined by the contractor's accounting
practices.]{.underline}** Why also are all the lines blacked out on this
page? **[In a fixed price contract such as this, it isn't appropriate to
require a detailed breakout of direct and indirect costs on a line by
line basis.]{.underline}** Schedule TO-3 Post Acceptance Performance
Period Cash Flow: "Added premium (adjusted for tax incentives)" -- There
is no mention of this adjustment for tax incentives in the definition of
Added Premium. **[Thank you for the comment. We will consider making a
change.]{.underline}** Schedule TO-3 Post Acceptance Performance Period
Cash Flow: Less Incentives(i.e. REC, White Tag, etc): What is the basis
for forecasting the value of such incentives. **[To determine whether
the project can pay for itself within the 25 year maximum
period.]{.underline}** Schedule TO-5 Annual Cancellation Ceiling
Schedule: Important Information: Insert a column titled "outstanding
capital investment" in between the columns for "Time Period" and
"Cancellation Ceiling". **[Thank you for the comment. We will consider
making a change.]{.underline}**\
Revise the notes as follows:\
1. Outstanding capital investment for each time period specified below
establishes the minimum termination liability for that time period, and
includes the remaining unamortized principal on total amount financed
for each time period specified below, plus any principal prepayment
charges. **[Thank you for the comment. We will consider making a
change.]{.underline}**\
2. Cancellation Ceilings for each time period specified below establish
the maximum termination liability for that time period, and includes the
outstanding Capital Investment specified below, plus any termination
costs negotiated for the service period. **[Thank you for the comment.
We will consider making a change.]{.underline}**\
3. The contractor may attach a monthly Financing Termination Liability
Schedule that must correspond to the annual amounts submitted below in
each year for Outstanding Capital Investment and cancellation ceiling.
**[Thank you for the comment. We will consider making a
change.]{.underline}**\
4. In the event of TO cancellation or termination for convenience, FAR
52.217-2 or 52.249.2 will apply. Attachment J-5 Sample Deliverable for
task orders: Is the evidence of surety commitment required for each task
order? **[This will be dependent upon the agency's requirement for
acceptable evidence of surety commitment.]{.underline}** What exactly
constitutes acceptable evidence? **[Acceptable evidence might consist of
a copy of commitment on official letterhead or equivalent. The
contractor should communicate with the agency to identify
acceptability.]{.underline}** Attachment J-13 Investor Deal Summary IDS
Template: Project Investment Table: What is the purpose of highlighting
profit margin? **[The intent was to black it out so that it wasn't
filled in.]{.underline}** The total cost of the ECMs is more relevant
for the IDS. Part IV -- Representations and Instructions K.2 Offer
Acceptance Period Signing block 12 should be block 17. **[Thanks for the
comment. We will make the change.]{.underline}** 210 days to hold open a
prices and schedule is a very long time. **[The 210 day period is
written as intended. This period is for your proposal that will be
evaluated for the issuance of the master IDIQ contract.]{.underline}**
Attachment L-4 Past Performance Questionnaire: II. Past Performance
Evaluation In the table the columns are labeled (F), (U), (N). What do
these letters represent?**[Thank you for your comment. We intend to make
a change to be consistent with the "0" - "5" rating
scale.]{.underline}** ECM's C.5.5 The TO will identify specific known
hazardous waste handling and storage requirements. Typically hazardous
waste outside of ballasts is the responsibility of the government.
**[Thanks for the comment.]{.underline}** O&M\
C.7 - "Preventive Maintenance OF ECM's" "The contractor shall be
responsible for preventive maintenance of all installed ECM's."
Typically these services are defined in the RRM. Which takes precedence?
**[The clause in the master IDIQ contract takes
precedence.]{.underline}** C.7.1 As of MOD 5 of original contract the
wording assigns responsibility for Preventative Maintenance to the party
providing maintenance service. The new RFP states the contractor is
responsible preventative maintenance regardless of who is performing the
service. C.7.3 Previous documents indicate that if the government
assumes preventive maintenance and doesn't perform then they will
compensate contractor for any losses as a result. New RFP adds that
contractor must periodically inspect the work and report any shortfalls
in maintenance procedure and if the Government fails to perform their
duties they "\...may give due consideration to the contractor for losses
directly attributable to that material failure." Section C.8 -
"Equipment Failure" C 8.3.A Previous documents indicates that if failure
is result of government they will reimburse contractor. New language
says that they may provide due consideration to contractor for repairs
directly attributable to that material failure on the part of the
government. C.8.1 "The contractor shall be responsible for the repair of
all installed ECM's. Typically these services are defined in the Risk
Responsibility Matrix. Which takes precedence? **[The clause in the
master IDIQ contract takes precedence.]{.underline}** Attachment J-8 2C
Weather. New language is as follows: "Should the agency agree to accept
risk for weather fluctuations, it shall be contingent upon payment not
exceeding savings." This should be changed to: Acceptance of risk for
weather fluctuations should not be contingent upon payment not exceeding
savings. The assumption of risk on energy prices will only add
unnecessarily to project cost. **[Thank you for the comment. The
contractor and agency will negotiate risk allocation and it will be
specified in the resulting task order. However, payments to the
contractor cannot, by law, exceed energy savings for a particular
year.]{.underline}** M&V C.4.4 The TO M&V plan shall specify the M&V
options and methods that will be used for each ECM included in the TO.
M&V options and methods proposed for each ECM shall comply with the
latest version (in effect at the time of the Task Order RFP and Notice
of Intent to award ) of the "\[Department of Energy\] DOE/\[Federal
Energy Management Program\] FEMP M&V Guidelines: Measurement and
Verification for Federal Energy Projects" and the "International
Performance Measurement and Verification Protocol (IPMVP)." Attachment
J-8 -- ESPC Contract Risk and Responsibility Matrix\
1(c) is now "M&V confidence" as opposed to "M&V costs" in the current
DOE IDIQ contract. Now, "the DOE assumes the responsibility to determine
the confidence that it desires to have in the M&V program and energy
savings determinations." In the current DOE IDIQ contract, "the agency
assumes the financial responsibility for M&V costs directly or through
the contractor." This change shifts risk to the ESCO from the agency
since the agency is not explicitly assuming the risk for M&V costs. This
further increases the cost of the project by increasing the risk borne
by the ESCO.\" **[Thank you for your comments.]{.underline}**

\"Discussions as to whether commissioning requirements should be
included in this RFP or in a stand alone document are still underway
according to the notation currently comprising Attachment J-12. We
believe that any imposition of commissioning requirements should be
linked to the base contract document. There can be significant costs
associated with commissioning and these costs need to be identified and
rolled into the cost and termination schedules so that all parties are
aware of the incremental costs incurred by the imposition of the
commissioning requirement.\" **[Thank you for your
comment.]{.underline}**

\"Every major change incorporated into the Draft RFP seems to either
increase the contractors\' risk, cost, or time period it takes to bring
a project to award. There appear to be no changes that improve or
expedite the process. Recommend the changes be reviewed to eliminate
those requirements that require the contractor to provide the same
information numerous times in the same proposal.\" **[Thanks for the
comments. We will consider your recommended changes. However, we
disagree with the assessment that the Draft RFP intends to increase the
cost or time period it takes to award the ESPC Project.]{.underline}**

\"General question - In the cover letter it states there is a
\"streamlined Initial Proposal process step\". After review of the draft
contract requirements, it appears there are more content requirements
for the IP/PA. Please explain how the proposed process differs from the
existing process.\" **[Thanks for the comment. The process in the DRFP
only requires the contractor to submit one TO schedule (TO-1).
Furthermore, the term Preliminary Assessment (PA) has a different
meaning and implication to agency contracting personnel that should
result in less detailed expectations and more general assessments of the
PA for potential projects.]{.underline}**

\"Gridlogix\
9056 Port Watson Road\
St. Louis, MO 63126\
www.gridlogix.com Department of Energy\
Golden Field Office\
1617 Cole Blvd.\
Golden, CO 80401-3393 June 25, 2007 Dear Energy Officials: Re: DRFP
Number DE-RP36-06G096031 (Draft) All the goals expressed in the
Department of Energy's Draft DRFP, to promote the use of renewable
energy technologies, acquire energy and water conservation services,
reduce energy and water consumption and/or associated utility costs, and
reduce energy and water-related operations and maintenance costs, have
one thing in common - they require data to succeed. Under present Energy
Savings Performance Contracts (ESPC) under use by federal agencies data
(monitoring and verification) is the missing ingredient. You can't
manage what you can't measure. The GAO reported at length on this
underlying problem in these arrangements in its June 2005 study, "Energy
Savings: Performance Contracts Offer Benefits, but Vigilance is Needed
to Protect Government Interests." The problems they found boils down to
a lack of credible, reliable, real-time, sharable, auditable,
information to manage the contracts and the energy services contractor.
There are questions on achieving a verifiable baseline, and from that
point forward, there is nothing but guess work. Did the government
achieve value? Did the contractor perform? Did we achieve savings? Are
we paying too much for financing? In these status quo ESPCs, it is
difficult and nearly impossible to audit changes in equipment and track
individual results. The GAO found that, "the expertise and information
needs of the agencies and competitiveness issues related to the
contracts emerged as concerns for the protection of the government's
financial interests using ESPCs." In other words, what the agencies
lacked was pre and post implementation Real Time Building Performance
Information. It can be done. The State of Missouri, growing weary of
rising energy costs, adopted ESPC reform that deserves federal review
for its application to the federal infrastructure. At the heart of the
state's reform is actionable information (measurement and verification),
the Real Time Building Performance Information that the federal agencies
have been missing. The data is collected from building automated systems
in 1000 state buildings comprising 28 million square feet. The data is
converged to a centralized operations center. The data is collected and
reported independent of the energy services contractor. This is the Real
Time Building Performance Information initiative at work, requiring a
partnership among energy services companies and IT companies and
producing manageable and verifiable results without the guesswork. The
State expects to pay about \$1 per square foot for these services and
achieve a payback of about \$20 million in 12 months. This compares much
more favorably than traditional ESPC costing about \$5 per square foot
and achieving 20 to 25 percent return over 15 years or more. In the
marketplace, the use and adoption of intelligent building control
systems and IP solutions are growing. There are hundreds of companies
developing solutions in enterprise building management and these
products are on the market and deployed and achieving results. The key
is an open interoperable, or service integration layer, where
information is gathered from all energy using systems, such as fire,
lighting, security, lifts, HVAC, and access controls, and made available
for building managers and their needs. In the Real Time Building
Performance Information format, the data generated from the building
systems is analyzed by independent experts or outside research teams at
universities that produce a list of commissioning errors in each
building. Once these common errors are repaired, a building typically
achieves 20 percent more energy efficiency at about \$1 per square foot
annually. These findings are verified by studies by the Energy Systems
Laboratory at Texas A&M in its report, "Continuous Commissioning of
Building Energy Systems" in August 2003. And, NIST reports that building
equipment routinely fails to satisfy performance expectations envisioned
at design and such failures go unnoticed over long periods of time.
These faults can be detected and repaired by fault detection tools, in
its study, NISTIR, "Results from Field Testing of Embedded Air Handling
Unit and Variable Air Volume Box Fault Detections Tools" October 2006.
Once the building is properly and optimally commissioned, a decision to
"right-size" equipment can be made. It is common that equipment such as
boilers and chillers are too big or too small for the building, causing
a degradation of energy performance. By right-sizing equipment, another
10 to 15 percent energy savings can be attained, totaling another 30 to
35 percent energy savings in less than 2 years at under \$2 per square
foot. The real-time, continuous, independent measurement and
verification data collection stays in place over the life of the energy
management arrangement. This gives energy managers accountability over
the next stages of upgrades to equipment and lighting and is the only
way to accurately establish a baseline for energy use, and measure and
verify for the performance of each and every piece of equipment
recommended by energy services contractors. The building performance
information also allows the energy services contractors the ability to
pinpoint variables in air, humidity, water, etc to allow the new
equipment to run and achieve its stated performance standards. It simply
does not make sense to enter into long term ESPCs without first properly
commissioning a building. While adding new equipment is good to increase
energy performance, its results or efficiency will be questionable if
other building conditions are not optimized. Moreover, this system, Real
Time Building Performance Information format, allows federal energy
managers several benefits, including the ability to: - establish a true
baseline for energy and water usage for every building;\
- collect real-time data on every chosen data collection point;\
- collect data on every energy or water event;\
- analyze and compare those events;\
- pick and choose what changes in equipment achieve the greatest
payback;\
- defer certain equipment changes if the payback is too costly, and the
chance to defer decisions for innovation that may be available later;\
- save 10 to 60 percent on maintenance costs by analyzing equipment
cycles and maintenance guidelines, bundling maintenance and purchasing,
and thereby reducing maintenance calls, truck rolls, and labor costs; -
manipulate the data and collection points to achieve other agency goals,
for energy, maintenance, compliance, and security; and\
- calculate energy use by fuel, and translate that into reports and
scorecards for meeting reduction goals and carbon targets in real-time,
for every building, agency by agency, and report that up to the DOE and
the Office of Management and Budget (OMB) for release to the public. In
structuring your procurement reforms to ESPCs, it would be beneficial
for both pre and post implementation validation to require or provide a
bidding preference to ESPC vendors that include/identify a third party
real-time measurement and verification system with a non-advocate report
of an optimization roadmap along with a continuous monitoring mechanism.
In conclusion, the tools and technology are available, and at work in
the marketplace, for the Department of Energy (DOE), Office of
Management and Budget (OMB), and the federal government the actionable
building performance information it needs to put certainty,
accountability, and transparency in energy services contracts. It is
imperative that a real-time, digital scorecard be available for federal
energy mangers to make the best choices in commissioning federal
buildings, hold energy contractors accountable for their actions, and
share information among agencies and the public in meeting energy and
water reduction targets and savings. With a real-time, continuous,
independent measurement and verification monitoring system, the federal
government can address all the GAO concerns with Energy Savings
Performance Contracts (ESPC), ensure private financing, encourage
competition, and be in a position meet national goals without guesswork
and clumsy after the fact auditing. The federal government is the single
largest energy consumer in the nation, spending almost \$4 billion in
FY02 on its energy for approximately 500,000 facilities in the United
States. According the Alliance to Save Energy, energy efficiency is the
nation's greatest energy resource -- efficiency now contributes more
than any other single energy resource to meeting our nation's energy
needs, including oil, natural gas, coal, or nuclear power. By adopting
Building 2.0 procedures the federal government can show conservation
leadership and save over \$1 billion in its energy costs per year. It
has been our distinct privilege and honor to be able to provide our
comments to this Draft ESPC IDIQ and look forward to working with the
Department to improve energy services management and gain the best value
for the federal government and taxpayers. **[Thank you for your
comments.]{.underline}**

\"In regard to the 20% small business subcontracting goal, am I correct
in understanding this to be (ideally) a 10% goal for small business
concerns that are Energy Policy Act target groups (per page 63 and 64 of
the draft RFP), and that the other 10% could then be companies that are
small businesses based on their NAICS code but that do not have any
other \"qualifiers\" (i.e. not woman owned, not disadvantaged, not HUB
zone, not 8a, etc.)? Thank you for your response.\" **[Yes, that is the
intent.]{.underline}**

In section C.4.2, there is now a requirement that the Measurement and
Verification plan identify buildings or spaces not affected as well as
energy or water using building systems or uses not affected by the TO be
identified. We suggest that this requirement be removed as it places
additional responsibility on the contractor and generates additional
costs and does not provide sufficient value to the federal agency to
justify the time and cost. A well crafted M&V protocol should contain
all the answers to the inquiry in any case.\" **[Thanks for the
recommendation. We will consider making the change. The intent is to
identify, not analyze, and was not expected to result in overly onerous
requirements or cost.]{.underline}**

\"Is there a limit to the length of a question submitted in the IIPS
system?\
Because it is not possible to attach documents, we would like to submit
a lengthy comment by retyping it.\" **[Yes, IIPS has an approximate
limit of 10,000 characters for a question]{.underline}**

\"I.10 (b) -- Goals. The contractor, in performance of this contract,
agrees to provide its best efforts to award subcontracts to the
following classes of entities:\
1. SB -- 20%\
2. HBCU -- 20%\
3. HANACU -- 20% \> Taken as an additive requirement, the goal could be
summed up to 60%. \> L.9.2.D -- has subcontractor requirement of at
least 20% Small Bus. \> Clarify that I.10 is inclusive of or percentage
of L.9.2.D?\" **[The percentage of L.9.2.D stated that for a small
business plan to be deemed acceptable it would contain a plan to use at
least 20% small business of which 10% should be socially and
economically disadvantaged as defined in 13 CFR part 124, subpart
B.]{.underline}**

\"J-1 Definitions -- White Tags \> Does this include CO2? \> Recommend
\-- Expand definition to include CO2 for all environmental Benefits
including electric and thermal energy, and renewable and all other fuel
systems.\" **[Thank you for your comment. We will consider making a
change.]{.underline}**

\"J-13 schedule -- Section 5 & 6 \> Not sure what is meant here \>
Clarify the purpose of these two sections\" **[The purpose of Table 5 is
to convey the actual level of savings risk as opposed to the perceived
risk. The total savings stream of a project is oftentimes composed of
various elements, each with varying level of risks (i.e. disputes in the
achievement of the annual guaranteed savings). Table 5 conveys the real
risk to the financier. The purpose of Table 6 presents a comparison of
the guaranteed savings to calculated savings. As ESCOs typically refrain
from guaranteeing 100% of their calculated level of savings, there
exists a level of safety that protects both the agency and the ESCO.
Awareness of that differential amount provides the financier with
information necessary to gauge the level of confidence in savings
calculations as well as its level of protection.]{.underline}**

\"J-13 \\ Section 1 \> Indicates that indirect and profit elements are
separated and not combined as total markup in current contract. \>
Recommend -- 1. Clarify that pricing is not using indirect & profit
mark-up classifications 2. Establish a single Pricing Methodology using
the commercial pricing process in current IDIQ that provides markup
based on technology and its performance risk.\" **[Thank you for your
comment. We are considering clarifying Table 1 in J-13. M.3.2 only
applies evaluation factors for DOE's award of these master IDIQ
contracts. DOE is not establishing a pricing methodology for the purpose
of task order award.]{.underline}**

\"J-6.1.3. -- Schedule TO -2 Implementation Price \> Recommend -- 1.
Clarify that pricing is not using indirect & profit mark-up
classifications **[That is correct.]{.underline}** 2. Establish a single
Pricing Methodology using the commercial pricing process in current IDIQ
that provides markup based on technology and its performance risk.\"
**[Thank you for your comment. We will consider making a
change.]{.underline}**

\"J-6.1.6. - FAR requirements \> Which FAR requirements are intended to
be included?\" **[FAR Clause 52.217-2 deals with cancellation under
multiyear contracts.]{.underline}**

\"J-7 -- TO-2 Implementation Price by ECM \> TO-2 indicates that
indirect and profit elements are separated and not combined as total
markup in current contract. There is no mention of a Pricing Methodology
in DRFP. \> Recommend -- 1. Clarify that pricing is not using indirect &
profit mark-up classifications **[Yes that is correct.]{.underline}** 2.
Establish a single Pricing Methodology using the commercial pricing
process in current IDIQ that provides markup based on technology and its
performance risk.\" **[Thank you for your comment. We will consider
making a change.]{.underline}**

\"J-8 ( c) - M&V \> M&V requirements determined by Agency. Should be
mutually. \> Suggest making determination mutual\" .\" **[Thank you for
your comment. We will consider making a change.]{.underline}**

\"June 26, 2007 US Department of Energy RE: ESPC IDIQ Draft Request for
Proposals (RFP) Solicitation DE-RP36-06GO96031 I am pleased to have the
opportunity to submit comments on the Department of Energy's ESPC IDIQ
Draft Request for Proposals (RFP) as a member of the former Federal
Energy Management Advisory Committee (FEMAC) and as the Chair of FEMAC's
ESPC/UESC Working Group. FEMAC's charter expired on June 8, 2007;
however, the committee's ESPC Working Group, which was established in
2002, has focused on the recompete process since October 18, 2006.
Because of the working group's numerous meetings on the subject and the
extensive review of the issues associated with a new contract, I believe
the Department of Energy will benefit with the comments and
recommendations resulting from the working group's in depth discussions,
which are listed below. Pre-Bid Input DOE is encouraged to solicit
pre-bid input from industry and government, leaving ample time for
inputs and reviews. **[Thank you for the comment. We have issued several
special notices in the DOE IIPS and FedBizOpps soliciting industry
input. Furthermore, DOE issued this DRFP to solicit industry and agency
input.]{.underline}** You are encouraged to vigorously reach out to key
agencies (such as GSA, VA, and DOD) in order to incorporate their
inputs, needs, lessons learned, and to better enable those agencies to
issue task orders off the DOE contract. **[Thank you for your comment.
We have taken great effort to solicit input regarding the ESPC program
and the recompete effort. Additionally we have met with several agencies
and federal organization including the VA, U.S. Navy, U.S. Air Force,
U.S. Army, DESC, and Dept of Commerce to gain insight and input from
their agency perspective,]{.underline}** It is recommended that DOE
expand the Federal experience in financing strategies and include a
Federal financial expert on the Source Evaluation Board. **[The
membership of the SEB is confidential. However, we can tell you that DOE
has gone to great lengths to ensure that the SEB is represented by
people with extensive and varied backgrounds who are capable of
providing expert input and evaluation from a business, technical, legal,
and financial perspective.]{.underline}** Our comments and questions
follow. Transition plans Previously, FEMAC asked for clarification on a
plan for transition between the existing and future DOE Super ESPC
contracts. Clarification on this and a smooth process between current
and new contract vehicles is still needed. What happens during overlap
in contracts? Also, there is no mention of what will happen to the
Technolgy-Specific contracts, and therefore we would also recommend that
clarification be provided as to whether these will remain in effect or
if they will be replaced by the new Super ESPC. **[DOE has issued two
special notices regarding the transition between the existing contract
and future ESPC IDIQ contracts on the DOE IIPS and FedBizOpps.
Additionally, DOE has communicated this directly with the current DOE
IDIQ contract holders. The ordering period on all DOE ESPC contracts
(Super ESPC and Tech Specific) were extended to March 31,
2008.]{.underline}** Unnecessary Contract Limitations Dollar limit. Is
the \$1B dollar limit per contract or contractor? If this is the award
value (total payments vs. total investment), the dollar limit is a
problem and could be extremely limiting over a 10-year contract. Would
contractors that reach this limit within the first few years be
disqualified from additional business regardless of how well they
perform? Would this in turn enable contractors performing poorly to do
as much work as the ones exhibiting exceptional performance once they
cap out? **[Thank you for your comments and questions. We will review
the maximum ordering limit to ensure that it is sufficient to meet
legislative and executive mandates and goals.]{.underline}** Number of
contracts awarded. There is concern that the number of contracts
expected to be issued (10) captures an inadequate percentage of the
qualified bidder universe. The quantity of contracts to be awarded
should be reevaluated to consider the prospect of future mergers and any
additional changes that could over time reduce the total number of
contracted entities. **[Thank you for your comment. We will consider
making a change. DOE has some flexibility to award more or less than 10
if it deems appropriate and prudent.]{.underline}** Small and regional
business opportunities (H.3A.1b, H3A.2b). FEMAC had recommended broad
competition especially among small and regional businesses. These small
or regional companies should not be disqualified or discouraged because
they cannot perform work across the entire country. DOE did not address
regional business opportunities and does not encourage use of small or
regional businesses in incentives, evaluation factors, or under past
performance considerations. It also does not address or reward
participation in mentor/protégé programs. As current qualification
guidelines might currently leave small and regional businesses at a
disadvantage, it is recommended that DOE provide some incentive or
reward for the integration of their services. For instance, the selected
contractor might be encouraged to use small businesses for subcontracts,
or greater emphasis could be established on their services within the
selection criteria. **[Thank you for your comments regarding regional,
small business and mentor protégé programs. The DRFP does not discourage
or disqualify any company that is on the DOE approved contractor list
from submitting a proposal or from being awarded a master IDIQ contract.
Furthermore, DOE has consulted with the Small Business Administration
(SBA) to ensure that the DRFP is consistent with SBA
requirements.]{.underline}** Opportunities for new contractors to
participate as ESPC providers. Provisions need to be added to allow for
on-ramps and off-ramps in this long-term contract in order to provide
opportunities for new contractors to enter the market downstream and to
eliminate bad past performers when necessary. These should not only
occur when the full IDIQ contract is recompeted. **[The Government
always has the right to terminate a contract for bad performance.
Unfortunately, it is not realistic for DOE to create "on-ramps" to add
new contractors as a master IDIQ holder for this procurement.
Contractors that are not DOE IDIQ contract holders are not prohibited
from doing ESPCs or other types of energy and water conservation type
projects at federal facilities. Agencies currently have the choice of
utilizing ESPC IDIQs administered by the DOE, Army, Air Force, GSA or by
awarding a "stand-alone" ESPC contract that isn't issued against an IDIQ
type contract.]{.underline}** Streamlining the Transaction Process and
ESCO Selection. In June 2006, FEMAC asked DOE to take steps to expedite
the transaction process, specifically that it streamline and standardize
the ESCO selection process at the task order level, as ESCOs are already
going through a rigorous process to get pre-qualified and continuous
delays drive up transaction costs. How will ESCOs be selected for
contractor initiated projects? It is recommend that the contract state
clearly that for contractor-initiated projects, agencies not be required
to seek additional bids. **[Agency contracting officers have the
flexibility to select contractors in accordance with scope of the IDIQ
contract. DOE-FEMP has issued an ESCO selection guide that agencies can
use to assist them with the ESCO selection process. This guidance is
located on the EERE FEMP website.]{.underline}** Does DFAR allow
selection based on qualifications? **[No.]{.underline}** It is further
recommend that the contract require the contractor and the customer
agency to agree at project initiation to an established schedule, with
specific timelines and milestones for all parties. **[Nothing prohibits
the agency or contractor from agreeing on a schedule or
timeline.]{.underline}** Sustainability ESPCs can and should be used to
incorporate sustainability into energy efficiency projects and meet
Federal sustainability goals, but the DRFP does not address EO
requirements for sustainable buildings. DOE should build off of the
recent Executive Order (E.O.13423) requirements for High Performance
Sustainable Buildings and include these responsibilities in the
contract, where DOE addresses Environmental Protection and applicable
laws and regulations. EO requirements for energy efficiency, water
efficiency, renewables, and sustainable buildings are not addressed.
**[Thank you for your comment. We will consider making a
change.]{.underline}** Renewables FEMAC previously asked DOE to place
greater attention on renewable projects. Although the DRFP mentions
renewable technologies several times, it is unclear what effect this
will have, if any. We recommend giving renewables special financial
consideration over and above what is traditionally allowed. DOE could
develop indexes for using renewables on estimated values associated with
displacement of petroleum use and reduction of CO2 emissions and allow
ESPC savings to include those values as savings. Due to the difficulty
in financing Renewable Energy Projects solely based on savings from
other ECMs, DOE should more strongly emphasize methods for blending
incentives, REITS, tax exemptions, and others to alleviate cost. The RFP
appears to be missing a few technologies, such as hydrokinetic, which is
addressed as a renewable source in EO 13423. Also it doesn\'t address
energy saving software for IT/computer hardware or metering
technologies. **[Thank you for the comments. We will consider making a
change.]{.underline}** Measurement and Verification (M&V) FEMAC
suggested that this contract establish appropriate M&V protocols and
carefully balance the need for M&V with its associated costs. The new
requirements seem more onerous for all, not tailored to specific risk or
need. What is the intended result of the changes? The changes in the RFP
may present more problems than the existing process. If government
witnessing is a requirement, it should entail no additional costs or
delays, and reasonable deadlines and time schedules to be honored should
be applied. Reasonable timeframes and procedures for resolving conflicts
and disputes need to be addressed in the contract and in individual task
orders. It is recommended that a timetable for government response be
included on task order. There is currently no such requirement (C.4.6D).
**[Thank you for the comments. We will consider making a
change.]{.underline}** We strongly concur with the requirement to file
M&V reports electronically with FEMP, so that they can provide oversight
and mediation. Metering Stipulated savings for new meters. Studies are
showing that meters generally do result in energy savings. We would
support the inclusion of metering as an ECM where a FEMP-assigned value
for savings could be stipulated. For example, the contract could allow 2
or 3% stipulated savings, but higher estimated savings would require
further verification. Utility metering services. It is recommend that a
paragraph be added to the contract to advise the ESCO to ask its
customer agency whether a metering services contract with another party
exists and if the agency wants any new metering to be installed under
the task order or to be included in the existing metering services
contract with the third party. If the agency wants all new metering
under its existing metering services contract and the metering
contractor is a private entity, it can enter into an agreement as a
subcontractor to the ESCO. However, if current metering is covered by a
regulated utility, most cannot or will not want to comply with the FAR
clauses and contact terms the ESCO will have to flow down in a
subcontractor relationship. In these situations, the ESCO should be
exempted from entering into a subcontractor relationship if the metering
is owned, operated, and maintained by a regulated utility. The cost of
the metering should be included in the task order. The ESCO and
regulated utility should be able to enter into an agreement that
includes the scope and price of the work to be performed with the ESCO
paying the utility following the installation of the meters. If the cost
of the metering cannot be funded from the TO, then the agency will have
to decide whether to fund the metering itself to stay with its metering
contractor or have metering installed under the task order and
effectively have two metering service providers. This is not a good
situation. At a minimum, add direction in the contract to the ESCO to
check with the agency to see if it already has a metering services
provider. Government's Future Data Requirements DOE's Federal Energy
Management Program (FEMP) needs to and is required to track essential
data and cost elements of implemented ESPCs. There have been problems in
the past over collection of required information on task orders and
delivery orders in arrears. DOE needs to incorporate the data
requirements that it will track in the contract and enforce collection
procedures without undue administrative burdens. M&V data, executive
summary of financial schedule, and ECM cost information should all be
tracked and monitored by FEMP so that it readily has the ability and
information to manage the program effectively and is prepared to be
responsive to oversight agencies when requests are submitted. **[Thank
you for your comments.]{.underline}** Establishing Accountability In
several passages, (C.6.3, C.7.3, C.8.3) the "may" language should be
considered replaced with "shall" or "will" in order to more clearly
establish accountability. For instance, the sentence "then the
Government may give due consideration to the contractor for losses..."
should more appropriately read, "then the government shall/will give due
consideration to the contractor for losses\..." Additionally, in section
C.11, the agency alone should not make the determination, but rather it
should be mutually agreed upon by the parties and should give due
consideration to any financing then in place. Remove words like \"may\"
throughout the DRFP and in particular in the O&M phase. **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

Flexibility for Agency COs This RFP seems to provide less flexibility
for the agency contracting officer (CO). The CO requirements seem too
restrictive to enable negotiations between CO & ESCO on task order
disputes and issues. Disputes could be handled by project facilitators
if they were federal or DOE laboratory employees instead of
semi-independent contractors. **[Thank you for your comments. We
disagree with the statements regarding disputes being handled by PFs.
DOE Laboratory employees are contractors as are the current PFs. Even if
the PFs were Federal employees, the PF position is not intended to issue
legally binding dispute resolution decisions. The PFs already work with
the agencies and ESCOs to resolve issues throughout the entire project
and for one year post delivery order award./]{.underline}** Project
Facilitation and Project Support The RFP maintains the current status
quo of using contracted project facilitators. The contracted out project
facilitator services which are selected on a competitive basis should be
eliminated. This system cannot possibly represent the best interests of
the government. This should be an inherently governmental function or
minimally be performed by Federal laboratory personnel who can also
provide technical expertise and adequately represent the best interests
of the government. **[Thank you for your comment. Project facilitation
is not within the scope of this acquisition.]{.underline}** Financing
Flexibility in Selecting Financier. The RFP allows little flexibility in
choosing a financier. **[We disagree with this statement.]{.underline}**
**[The DRFP does not prohibit or discourage any financier that the ESCO
selects.]{.underline}** The process of how a financier is selected
should be expanded to allow flexibility to select the financier earlier
in the process to account for such variables as size, complexity, and
the inclusion of renewable energy. Such flexibility could be obtained by
permitting the contractor to select a financier earlier through an
approach that is similar to the existing criteria for selecting ESCOs.
(H.3.b) By doing so, it allows, in some instances, for selections to be
made based on qualifications, thereby allowing valuable financing input
to be applied earlier in complex transactions. **[The RFP allows the
ESCO flexibility to select a financier whenever it wants
to.]{.underline}** Transparency to the Federal Government in financing.
The contract should ensure transparent financing arrangements by
requiring a minimum of three bids from financers and disclosure of all
bids. **[The current DOE IDIQ (Super ESPC) and this DRFP require the
contractor to use a competitive process to select a
financier.]{.underline}** We concur with the requirement for the
contractor to submit a certified memo describing the selection process
and justifying financer selection. We also recommend that DOE expand the
Federal expertise in financing strategies and considerations by
including a Federal financial expert on the Source Evaluation Board.
**[Thank you. This comment was addressed earlier.]{.underline}**\
Definitions, Attachment J-2 The following definitions should be added:
Cogeneration -- A definition is currently not included in the list of
terms **[Thank you for the comment. We will consider making a
change.]{.underline}** Contracting Officer's Representative (COR) -
While it is stated that the "performance of the work under this contract
shall be subject to the technical direction of the (COR)" (G.6), further
clarification as to who these people are and what role they occupy is
needed. **[Thank you for the comment. We will consider making a
change.]{.underline}** Project Facilitator (PF) -- The role of Project
Facilitator should be more defined **[Thank you for the comment. We will
consider making a change.]{.underline}** (H.4.1) Registered Engineer --
This role is not properly identified, again, who are these people?
**[Thank you for the comment. We will consider making a
change.]{.underline}** (C5.1A) Review of Price Proposals The manner in
which price proposals are evaluated should be better defined under
unifying guidelines that explain how to award TOs. In turn, such
standards should promote consistency between the agencies. **[Thank you
for the comment. We will consider making a change.]{.underline}**
Operation of ECMs The sentence within section (C.6.1) beginning
"Regardless of who performs the operations" should be clarified as it
currently seems to assign a disproportionate amount of risk to the
ESCO.\" **[Under the applicable ESPC statute, the Government is neither
allowed nor required to undertake the risk of ECM repairs or
maintenance. Rather, that responsibility lies with the contractor. See
42 U.S.C. § 8287(a)(2)(A). In addition, because the contractor is
responsible for the level of guaranteed savings, the contractor bears
the ultimate responsibility for the proper repair, maintenance and
operations of the equipment installed. Although *responsibility* for
repair, maintenance or operations remains with the contractor,
*performance* of these activities may be undertaken by either the
contractor or agency, as negotiated. Where the agency performs the
activities, the contractor is required to provide adequate work
requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

\"M.3.2 -- Price Criteria \> Refers to FAR 15.404 which states that
agency should use its pricing methodology. This will create multiple
process per agency reducing efficiency and adding time to processes \>
Recommend --Establish a single Pricing Methodology using the commercial
pricing process in current IDIQ that provides markup based on technology
and its performance risk.\" **[Thank you for your comment. We will
consider making a change.]{.underline}**

\"NAESCO believes that setting the master contract at a one billion
dollar limit against which all task orders will be written is
unrealistically low and will not result in investment sufficient to
achieve the multiple resource acquisition goals set forth in the Draft
Proposal. The master contract is set at a one billion dollar limit
against which all task orders will be written with a minimum task order
of \$5,000. While one billion dollars may sound in aggregate like a
sizeable commitment to the ESPC program, it actually translates to about
\$500-600 million in actual work to be implemented at federal facilities
during the five year base period or about \$100-120 million per year in
direct investment to be allocated among all awardees. This is actually
less than current investment levels and dramatically less than the
accelerated investment levels that policy makers have stated they want
to see invested in energy efficiency and renewable technologies at
federal facilities. It is not clear to NAESCO why the one billion dollar
limit was established when the Draft Request expands the range of goods
and services being sought . The limit as currently set is unrealistic to
achieve the multiple objectives set forth in the Draft Request. In order
to achieve the \$500 million per annum investment that has been
suggested by DOE policy makers in public meetings as their objective,
the base period master contract limit would need to be set at a minimum
of \$5 billion. Permitting a minimum task order of \$5,000 appears to be
a residual requirement from the original contract terms and no longer
serves a purpose. The transaction costs for such a small task order
would negate any real cost savings. 2\" **[Thank you for your comments.
We will consider making a change.]{.underline}**

\"Pages 158 and 176 in sections L and M, respectively, refer to TC-19 as
future ECMs as part of attachment J-4. However, Attachment J-4 lists
TC-19 as Appliance/Plug and Load Reductions and lists TC-20 as future
ECMs. Please clarify.\" **[Thank you for your comment. We will correct
this error.]{.underline}**

\"Recommend the DOE consider having an industry forum while considering
comments to the DRFP, prior to release of the final RFP.\" **[Thank you
for your comment. DOE has been and continues to be very interested in
the input from all sources. DOE will plan an Industry forum. DOE will
also conduct a preproposal conference in conjunction with a site tour
after the final RFP has been issued. The preproposal conference will
allow potential offerors the opportunity to provide additional questions
and comments.]{.underline}**

\"Section 2. Operational - The ESCO cannot accept risk of weather
conditions. Please clarify the governments intent here.\" **[The
contractor and agency will negotiate risk allocation, and it will be
specified in the resulting TO. However, payments to the contractor
cannot exceed energy savings for that year.]{.underline}**

\"Sections C.6.1, C.6.3, C.7.3 and C.8.3 provide the government with the
unilateral ability to declare itself free from responsibility for its
actions with regard to operation of the energy conservation measures
(ECMs) including instances where it had oversight of direct operations,
preventive maintenance and repairs. This is patently one sided
assignment of risk. The relevant language must be changed so that the
parties are responsible only for the damages related to actions which
are directly attributable to their respective agents. This is consistent
with the existing contract language.\
f) In the DOE IDIQ contract currently in effect, responsibility for O&M
record keeping is assigned to the party providing O&M service. Section
C.6.4 of the draft RFP states that the ESCO is responsible for record
keeping regardless of whether or not it is performing the O&M service.
We believe the existing provision should be retained which makes the
party with access to the data responsible for record keeping.\" **[Under
the applicable ESPC statute, the Government is neither allowed nor
required to undertake the risk of ECM repairs or maintenance. Rather,
that responsibility lies with the contractor. See 42 U.S.C. §
8287(a)(2)(A). In addition, because the contractor is responsible for
the level of guaranteed savings, the contractor bears the ultimate
responsibility for the proper repair, maintenance and operations of the
equipment installed. Although *responsibility* for repair, maintenance
or operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"Shared energy savings/incentives for contractors. ORNL opposes any
"shared savings" incentive language in the DOE ESPC IDIQ. Our experience
shows that M&V practice is more appropriately used to determine whether
the guarantee was met than to support calculation of incentive payments.
Shared-savings ESPCs preceded the present form of guaranteed-savings
contracts and were phased out because contract administration and M&V
consumed excessive resources and disputes were common. A huge share of
guaranteed savings in federal ESPCs are now reported using Option A M&V,
which bears out the preference for minimizing M&V cost and complexity.\"
**[Thanks for your comments. We will take them under consideration as we
refine the DRFP.]{.underline}**

\"Terminology for savings. We recommend that the terminology generally
adopted in the ESPC community to refer to savings be adopted in the
Draft RFP:\
--- Estimated savings are those calculated and recorded in the TO
schedules by the contractor. --- Guaranteed savings are those dollar
amounts guaranteed to be delivered by the contractor to cover the
agency's payments for the project.\
--- Reported savings are those resulting from the activities and
calculations required by the M&V plan and documented in the Annual M&V
Report.\
--- Verified savings are those independently determined by additional
inspections, calculations, recalculation of M&V Annual Report
documentation, or other means.\"

**[Thanks for the recommended changes. We will consider making the
changes.]{.underline}**

The cost of an energy savings performance contract (ESPC) TO project
(hereafter referred to as TO project) must be covered by the reduced
energy, water, and related cost savings incurred at the Federal
facility. This language seems to prohibit the ability of an agency to
buy-down a project with available funds at award or full project
acceptance.\" **[Thanks for the recommended changes. We will consider
making the changes.]{.underline}**

\"The DRFP makes mention of a \"Subcontracting Alternative II,\" but
gives no section with such a heading. Please clarify.\" **[Thanks for
the comment. We will clarify.]{.underline}**

\"The DRFP mandates that the offeror\'s ORCA registration be updated
within the past 12 months, but does not define whether the past 12
months is retro to the RFP issuance or proposal sumbission. Please
clarify.\" **[Thank you for the question. The past 12 months refers to
proposal submission.]{.underline}**

\"The imposition on the contractor of determining the sources, value and
availability of financial, tax, and incentive options under C.12 is not
itself unreasonable. However, the section repeatedly uses the term
"responsibility of the contractor" without any definition of the legal
reach of the term "responsibility". We suggest that the term
"responsibility" be replaced with the requirement that the contractor
use all best efforts to assess the range of appropriate incentives
available for the project and utilize as appropriate in establishing
project costs and financing options. NAESCO also believes that specific
language be included in the final draft clarifying that these incentives
may be utilized in the financing of the project.\" **[Thanks for the
comments. We will consider making the changes. The value of the
incentives will be identified in schedule TO-3]{.underline}**

The invoicing process set forth in G.3 should be clarified so that
contractors are notified within ten days of receipt of the invoice by
the federal agency whether any part of the payment will be disputed,
withheld, or delayed. The contractor will also be given the immediate
opportunity to help cure the event which the agency has determined to be
the source of the payment dispute or delay.\" **[Thanks for the comment.
We will consider making the change.]{.underline}**

\"The preliminary assessment requirements under H.4.1 are too onerous
and costly for the contractor. At a minimum, H.4.2.B. should be revised
and requirements g-j should be deleted. There is subsequent opportunity
under the IGA requirements set forth in (H.5) to address these
additional concerns.\" **[Thanks for the comment. We will consider
making the change.]{.underline}**

\"The requirement for the incorporation of an Investor Deal Summary and
Standard Financing Offers in the form of a Selection Memorandum under
H.7.3. states that the process may be subject to an audit by the agency.
There is no indication of what types of data an audit would examine or
the objectives of such an audit. If an audit is contemplated, additional
information is required as to firmly circumscribe the reach of the
auditors, the time frame for conducting such an audit, and the sanctions
that could result. We are not sure of the intent behind this requirement
and generally do not believe it is necessary. However, if the
requirement remains in the final version of the RFP, additional
clarifying language is necessary.\" **[Thanks for the comment. Audits
that are requested by agencies vary in detail and requirements. Such
detail and requirements will come from the ordering agency, not this
DRFP or IDIQ contract.]{.underline}**

\"These are additional recommendations: The draft states that regardless
of who does Operations or Maintenance, the ESCO is responsible However,
the draft changes the assurance that if they (the government) operate
and maintain improperly, the government will be responsible
(unacceptable ESCO risk). We recommend the following: - for ECMs that
the government maintains themselves, the savings should be stipulated.
If the government wants a guarantee, the ESCO must maintain the
equipment. - If the government operates the equipment and causes
equipment failure, they must repair or compensate the ESCO to repair
(per current contract **[Under the applicable ESPC statute, the
Government is neither allowed nor required to undertake the risk of ECM
repairs or maintenance. Rather, that responsibility lies with the
contractor. See 42 U.S.C. § 8287(a)(2)(A). In addition, because the
contractor is responsible for the level of guaranteed savings, the
contractor bears the ultimate responsibility for the proper repair,
maintenance and operations of the equipment installed. Although
*responsibility* for repair, maintenance or operations remains with the
contractor, *performance* of these activities may be undertaken by
either the contractor or agency, as negotiated. Where the agency
performs the activities, the contractor is required to provide adequate
work requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

Shorter Cycle Times - Remove the requirement for a preliminary proposal
for any agency follow-on TO - Standardize on the savings calculation
methodology for simple ECM\'s such as lighting. Water, motor
replacement, HVAC scheduling. We continue to run into different agencies
that require different methodology, and then they change it month after
month. This is a huge bottleneck. Not all ECM\'s can have \"canned
savings methodologies\", but the easy ones could. We further suggest
automating the approval process for these, simpler ECMs\" **[Thanks for
your comments. We will consider making the changes.]{.underline}**

\"This document further explains the FPCC position on the ability to
provide an \"on ramp\" for the SuperESPC contract WHITE PAPER REGARDING\
SUPER ENERGY SAVINGS PERFORMANCE CONTRACTS (Super ESPC) This paper was
prepared by Agnes P. Dover. Ms. Dover joined Hogan & Hartson as a
partner in January 1997 after serving as the deputy general counsel for
procurement and technology transfer at the U.S. Department of Energy.
She has more than 25 years of experience working with government
contractor clients. Her practice is concentrated on regulatory and
contractual issues for clients in the energy, information technology,
defense and biotechnology industries. EXECUTIVE SUMMARY Under the Super
Energy Savings Performance Contract (ESPC) program, the Department of
Energy conducted a competition to pre-qualify a number of contractors
who then compete for individual task orders under the terms and
conditions of the Super ESPC. DOE has announced that it is considering a
competition to re-compete the existing Super ESPCs to allow changes to
the master contract and to expand the universe of contractors
participating in the program. Conducting a "full and open" competition
of all contractors -- both those who currently have Super ESPCs as well
as new entrants -- will likely result in a lengthy source selection
process that duplicates the prior competitive process and significant
disruption and delays in the program. This will slow critical efforts to
revitalize the program after a temporary suspension in 2003 and will
hamper the federal government's efforts to reduce energy usage
government-wide by putting the program back in flux. The quickest, most
efficient way to expand the Super ESPC program would be to:\
· extend the ordering period of the existing Super ESPC contracts --
which were already subjected to a rigorous competitive selection
process;\
· complete the current competition to allow DOE to select new, high
quality companies to join the existing pool of Super ESPC contractors ;
and\
· update existing contract terms to reflect changes under the upcoming
RFP, including a worldwide contract scope.\
Thus, DOE would maintain the existing cadre of contractors, enabling it
to seamlessly continue the program, while conducting a new selection
process to add qualified companies to the program. DOE may undertake
this strategy because the Energy Policy Act of 1992 gave the Department
of Energy authority to enter into contracts for up to 25 years and to
use more flexible procurement procedures for energy savings performance
contracts. This plan would be consistent with the numerous examples of
multiple award vehicles established by other agencies that provide
"on-ramps" to expand the universe of participating contractors for IDIQ
contracts such as the Super ESPCs. Of course, only contractors meeting
the highest quality standards would be added to the program, ensuring
the continued high caliber of the work carried out for participating
government agencies. SUPER ENERGY SAVINGS PERFORMANCE CONTRACTS (Super
ESPC) The Department of Energy (DOE) is considering a competition to
re-compete the existing Super Energy Savings Performance Contracts
(ESPC) to allow changes to the master contract and to expand the
universe of contractors participating in the Super ESPC program. These
are commendable goals. Preliminary indications are that DOE intends to
achieve these goals by conducting a "full and open" competition of all
contractors -- both those who currently have Super ESPCs as well as new
entrants. This path is likely to result in a disruption to the program
and a lengthy source selection process that will slow critical efforts
to revitalize the program after a temporary suspension in 2003. The
quickest, most efficient way to achieve these goals without disrupting
the existing program would be to extend the ordering period of the
existing Super ESPC contracts -- which were already subjected to a
rigorous competitive selection process -- while simultaneously
incorporating best practices into the existing contract and allowing
new, qualified contractors to compete to participate in the program. In
this way, DOE can select high quality companies to join the existing
pool of Super ESPC contractors.\
Background Since its inception in 1992, the ESPC program has enabled the
DOE to enter into uniquely long-term, flexible contractual arrangements
for periods of up to twenty-five years. Under the Energy Policy Act of
1992 (EPACT), DOE is authorized to enter into contracts for up to 25
years and to establish its own procurement procedures, which may depart
from the Federal Acquisition Regulations. P.L. 102-486, Sec. 155(b). /
Using this authority, the Department published its own methods and
procedures for the award and administration of energy savings
performance contracts. 10 C.F.R. 436.30. Consistent with these
authorities, in 1997 DOE established so-called "Super ESPCs" that
provide a multiple award Indefinite Delivery Indefinite Quantity (IDIQ)
umbrella contract under which agencies may place individual delivery
orders. These contracts were competitively awarded and structured to
allow orders to be placed based on region basis.\
Importantly, the Super ESPC vehicle does not guarantee that a contractor
will receive orders because agencies must still go through a source
selection process for individual orders. DOE has recognized the benefits
of using Super ESPCs, characterizing the program as "practical and
cost-effective," and noting that it reduces contract cycle time from 2
to 3 years to 4 to 12 months. / DOE has announced that it anticipated
undertaking a re-competition of the Super ESPCs. This White Paper
addresses the planned re-competition and makes the case for why it is
unnecessary to be conducted as a "full and open competition." DOE is Not
Required to Conduct a "Full and Open" Competitive Process for the
Re-Compete of the Super ESPCs As indicated above, EPACT authorized DOE
to use more streamlined and flexible procurement approaches for the
energy savings performance program. / DOE's procedures require DOE to
maintain a list of qualified contractors and to update the list
annually. However, there is nothing in the regulations that requires the
use of a competitive process for the Super ESPC contracts that DOE has
already established. So long as Super ESPC contractors are provided a
fair opportunity to compete on delivery orders, the requirements of both
the FAR and the DOE regulations are met. Moreover, there is nothing in
the regulations that would preclude DOE from adding qualified
contractors to an existing Super ESPC vehicle. In fact, there are
numerous examples of multiple award vehicles established by other
agencies that provide "on-ramps" to expand the universe of participating
contractors and "off ramps" to remove those contractors who are no
longer participating after initial establishment. Whether or not a
specific "off ramp" is included in the contract, DOE can of course
terminate a contractor for convenience or default under appropriate
circumstances. The approach of allowing "rolling admission" stimulates
competition and increases the government's options for selecting
upgraded technology. As a result, many agencies have utilized "on-ramps"
for their IDIQ contracts. See J. Hiles, "Riding the Ramps of the
Multiple-Award Freeway", Contract Management, September 2006. For the
Super ESPC program, DOE would of course have to determine the technical
qualifications of new entrants, to ensure that only high caliber
companies are included. In fact, DOE would be well-served by imposing
the same rigorous technical and financial standards that it used to
select the existing pool of Super ESPC contractors. Likewise, DOE would
periodically examine contractor performance to determine if any
poor-performing contractors should be terminated for default. The Super
ESPC contract vehicle is a twenty-five year contract. Initially, DOE
contemplated orders being placed until April, 2000. However, the
contract has been amended and extended many times since it was first
established. / Specifically, the ordering period has been extended three
times -- currently extending through March, 2008 -- and a major re-write
of the contract provisions was done on several occasions with the last
being issued in 2005. This is consistent with other agencies'
administration of multiple award IDIQ vehicles, including the GSA
Schedule, which periodically issue "refresh" versions of the basic
contract terms and conditions. This flexibility comes by virtue of the
IDIQ vehicle itself -- under which contractors may select which task or
delivery orders to compete for. Thus, DOE's own past practice with
respect to the Super ESPC confirms that it has the authority to amend
and extend the contract. / Extending and Expanding the Existing Universe
of Super ESPC Holders is in the Government's Interest The significant
value of the ESPC program for reducing the nation's energy usage has
been well recognized at the highest levels of the government. Last
Spring, President Bush specifically encouraged government officials "to
utilize ESPCs and Super ESPCs to meet their energy use reduction goals.
These efforts will help conserve energy and create a better America for
our children and grandchildren." Assistant Secretary Karsner reinforced
the urgent need for action, stating that "\[m\]aximizing energy
efficiency and renewable energy is the domestic epicenter in the War on
Terror and it is imperative that we maximize the partnerships between
the public and private sectors in new and creative ways with a sense of
seriousness, national purpose and the urgency the situation merits.\"
See <http://www1.eere.energy.gov/femp/financing/superespcs.html>. The
Administration's imperative is well-timed to come soon after
reauthorization of the ESPC program. Regrettably, the original
authorization lapsed in 2003, leaving the program in a state of flux. As
a result, the pace of new energy savings projects slowed and are only
now beginning to return to pre-2003 levels. For example, the loss of
ESPC authority had a dramatic effect on the Department of Defense's
energy reduction program, and was at least partially to blame for DoD's
department-wide increased energy use in FY 2004 as compared to the
previous year. See Dept. of Defense, Annual Energy Management Report,
Fiscal Year 2004, 2. Also, although authority was restored the following
year, the loss of the authority in FY 2004 meant that many projects had
to be restarted entirely due to changed market circumstances, causing
disruption beyond the one year lapse in ESPC authority. See Dept. of
Defense, Annual Energy Management Report, Fiscal Year 2005, 35. / A
re-competition of the entire Super ESPC program will likely cause
another slow-down in the pace of projects, undermining the urgency with
which the Administration seeks to reinvigorate the program. It is
therefore in the government's interest to maintain the Super ESPC
structure without disruption, while simultaneously adding new companies
to the roster of those eligible to compete for projects under the Super
ESPC Contract via the on-ramp process described previously.. Further, if
DOE's policy objective is indeed to expand the universe of contractors
eligible to receive awards without jeopardizing the ability of agencies
to continue placing orders, it is not in DOE's interest to abandon the
existing program and start all over from scratch. Instead, the most
efficient option is to expand the existing contract vehicle. Inasmuch as
the existing Super ESPC holders have already been qualified to compete
after a thorough competitive process, it is in the government's interest
to focus on pre-qualifying additional contractors, not re-qualifying
those who have already been selected. Significantly, agencies will be
assured of competitive pricing because both the existing and newly added
contractors will have to compete for individual orders under the Super
ESPC vehicle. Existing DOE Super ESPC have Significant Ordering Capacity
Remaining. Each regional Super ESPC has a maximum ordering capacity of
\$750 Million for a total of \$4.5 Billion for all six DOE Super ESPC
regions. According to the annual reporting data, less than \$800 Million
has been implemented under the Super ESPC program, leaving more than
\$3.7 Billion in ordering capacity. With such a significant amount of
capacity remaining in the existing program, conducting another costly
and resource intensive competition to both DOE and the existing
contractors is not necessary or required. Recommendation:\
A full re-competition would undoubtedly slow use of the Super ESPC
vehicle as agencies delay awards pending the final outcome of the
re-compete. It would also divert DOE resources from expanding
opportunities for energy savings initiatives to re-examining the
qualifications of companies that have already been selected and are
currently performing important energy savings projects. Requiring the
companies that are already qualified under a Super ESPC vehicle to
compete again would create unnecessary duplication of effort and require
significant investment dollars and additional resources for both the
existing Super ESPC holders as well as for DOE. Therefore, it is in the
interest of the ESPC program to administratively extend the ordering
period for the Super ESPCs that are currently in place and to allow
other, well-qualified companies to seek to be added to the existing
umbrella contracts. Given the procurement flexibility available for
administration of the program, DOE has the option to conduct an
abbreviated competition or a streamlined qualification review to
determine which additional companies can meet the requisite technical
and financial standards that warrant being added to the program based on
their qualifications. This would allow DOE to identify a select group of
new, highly-qualified competitors to enter the market via an "on-ramp"
without the need for another lengthy competition process for those
contractors that have already met those standards. Thus, DOE would
maintain the existing cadre of contractors, enabling it to seamlessly
continue the program, while conducting a new selection process to add
qualified companies to the program. DOE would thus target the
competitive process to identify a limited universe of companies meeting
the rigorous standards that the original Super ESPC holders met several
years ago. To the extent that DOE wishes to revise the scope or amend
the terms of the existing Super ESPC vehicle, DOE may do so -- as it has
done on previous occasions -- by modifying the contracts that are in
place. For example, if DOE wished to make the geographic reach of all of
the Super ESPCs national instead of regional, it could amend the terms
of the existing Super ESPCs, leaving companies free to determine for
which delivery orders they would seek to submit proposals. Moreover, DOE
is certainly free to establish new Super ESPC contracts if, for example,
it wished to enable a vehicle reserved exclusively for a particular
category of contractor, e.g. small or small disadvantaged business.
Allowing a select group of additional companies to be added to the Super
ESPC vehicle while not requiring the currently eligible companies to
re-compete has the benefit of promoting competition for future ESPC
projects without the added costs -- both to current contractors and to
the DOE -- of conducting a full and open competition. Because DOE has
the flexibility to do so, it should avoid the costs and delay associated
with a re-competition by simply allowing new entrants to the existing
program.\" **[Thank you for your comments.]{.underline}**

\"We've reviewed the Energy Saving Performance Contracting (ESPC) Draft
RFP and congratulate the Federal Energy Management Program (FEMP) Team
on preparing an excellent document that incorporates a number of Program
improvements. The cover letter asks for comments on incorporating
"Shared Savings Incentives" to achieve greater energy cost reduction in
Federal facilities. We support the incorporation of an incentive
component in the ESPC Program because it will encourage the development
of new business models that we believe will significantly increase
energy saving at Federal facilities. Properly structured it will also
enable the private sector to finance the installation of advanced
metering systems (e.g., third-party, inside-the-fence, Metered Data
Accusation, Management and Analysis Systems that capture both utility
and sub-metered data) in Federal facilities, as required in the Energy
Policy Act of 2005. We recommend that the Department of Energy (DoE)
consider including a component in the ESPC Program (or create a new
complimentary program) to provide contractors with the financial
incentive to conduct a program that installs advanced metering in
Federal facilities to identify and implement extensive energy operations
and maintenance (O&M) improvements. Because similar business models are
being used in the commercial sector, we are confident that Federal
energy O&M cost savings will easily exceed the cost of achieving those
results. However, it is virtually impossible to accurately predict how
much energy will be saved in any given facility prior to implementing a
project. We therefore recommend that DoE create a performance-based
incentive program to secure these O&M savings. This program could work
as follows: Shared Performance Contracting - Federal facilities would
enter into a contractual agreement with a contractor to achieve O&M cost
savings; the contractor would:\
• Install advanced metering throughout the facility;\
• Create a detailed energy demand and use baseline;\
• Analyze metered data to determine the optimal range of possible O&M
improvements;\
• Assist the facility managers to implement sensible O&M improvements;\
• Document the energy and cost savings using metered data as compared to
the baseline. Payment Based on Performance -- Contractual agreements
would include a performance-based fee structure where the agency would:\
• Pay the contractor a previously determined fee for each verifiable kWH
and kW O&M cost reduction that is achieved, based on before and after
analysis of metered data.\
• Set the fee lower than the value of the kWH and kW reduction, enabling
the agency to retain a portion of the savings.\
• Structure the annual fee schedule so that the contractor provides
continual O&M commissioning through on-site engineering presence.
Performance Risk/Reward - The contractor assumes the full performance
risk, but also enjoys the possibility of profitable reward:\
• If, after metering and analysis, it is discovered there aren't any O&M
savings options available, the contractor is paid nothing for their
effort.\
• However, if reasonable options are identified and implemented, the
contractor is paid according to the fee schedule in the contract, the
amount of savings determined by analyzing the difference in measured
data from before and after implementation.\
• This type of performance-based arrangement encourages a contractor to
find and implement as many cost reductions as possible since more
reductions mean more contractor revenue; more reductions also mean the
agency retains more funding, and ultimately taxpayers save money. In
addition to enabling a way to secure O&M savings, an advanced metering
platform could also help mitigate a concern some Federal energy managers
have about ESPCs, e.g., an ESCO installed energy-efficient technologies,
but the energy bill didn't go down (or not as much as expected.) Of
course this can occur because the savings were swamped by changes in
facility use or additions to plug loads, etc. An advanced metering
system would provide a way to immediately document the impact of any
given retrofit, and then over time illustrate to decision makers the
effects of changes in facility use or increased loads. This improvement
in transparency could also lead contractors to offer firm performance
guarantees, backed by liquidated damage insurance, for customers who
don't receive the results they were promised. Performance insurance is
used widely in the private sector, and we've found it helps government
customers be more confident about entering into new outsourcing
arrangements. We believe incorporating shared savings incentives will
tap the creativity of ESPC contractors to install more metering, do more
analysis, enable the capture of O&M savings, lead to verifiable
documentation of retrofit performance, and stimulate the use of
performance guarantees to build more customer confidence. I hope you
find these comments helpful.\"

**[Thank you for your comments. We will consider making changes to the
DRFP.]{.underline}**

\"While the draft RFP states that the use of renewable technologies in
future ESPCs is highly desirable, there is a general lack of guidance as
to how the cost impact of renewable technologies will be assessed and
evaluated when considering the price reasonableness requirement among
other requirements imposed on the contractor. The draft states a clear
preference for contractors to integrate renewable technologies into the
ESPCs to be implemented. While combining energy efficiency and renewable
technologies into a single project drives down the payback of the
renewable technologies by blending the paybacks of both technologies, it
still does not mean that projects employing renewable technologies will
price out at the same dollar investment as if there were no renewable
technologies employed. There is no guidance about how renewable energy
technologies are to be integrated into the project design given the cost
factors. For example, there is a price reasonableness requirement which
may in effect preclude the use of renewable technologies given the
higher costs associated with these technologies. Since it is the stated
objective of the RFP to accelerate the use of renewable technologies in
future ESPC TOs, it would be very useful for DOE to provide guidance as
to how renewable energy technologies should be evaluated from a price
reasonableness perspective and whether the evaluation process by federal
contracting officers will differ when renewable technologies are
included in the project design.\"

**[Thank you for your comments. We will consider the possibility of
developing renewable energy guidance that you suggested.]{.underline}**

**Not Applicable Section**

\"Attachment J-2 Definition of Direct Costs. What is a \"particular cost
objective\"?\" **[Direct costs are those \[costs\] that can be
identified specifically with a particular final cost objective, i.e., a
particular award, ESPC project, service, or other direct activity of an
organization. See FAR 31.202]{.underline}**

Attachment J-2 Definition of Indirect Costs. Please clarify this
definition, particularly as it relates to completion of Schedule TO-2\"
**[Indirect costs (or overhead) in contrast with direct costs, are
expenses that have been incurred for purposes common to all projects,
but which cannot be identified and charged directly to each individual
project without an inordinate amount of tracking and accounting. These
expenses range from utilities, building maintenance and renovation to
accounting, payroll. See FAR 31.202 for more information regarding
direct and indirect costs.]{.underline}**

\"Attachment J-2 Definition of Outstanding Capital Investment. Relevent?
TO-5 has no column for Outstanding Capital Investment\" **[Thank you for
your comment. We will consider making the change.]{.underline}**

\"Attachment J-4 TC.20 Suggest deletion. Certain ECMs listed have been
interpreted to be allowed under the existing contracts. Is it DOE's
intention to specifically prohibit these ECMs?\" **[DOE's intent was to
show that these ECMs are part of the envisioned scope of this contract
so that if the ECMs become authorized through law, the contract would be
modified to incorporate the ECMs.]{.underline}**

\"Attachment J-5 Item 2 refers to Draft IGA/Final Proposal. This appears
to be the first reference to "Draft IGA". Please clarify this
requirement as it relates to H.5 and H.6. Suggest including flowchart to
illustrate the entire process.\" **[Thank you for your comment. We will
consider making the change.]{.underline}**

\"Attachment J-5 Post-Award Deliverables. Due date of bonds should be as
indicated in H.8.2 A.\" **[Thank you for your comment. We will consider
making the change.]{.underline}**

\"Attachment J-6, J-6.1.2 G. 1., 2., 3. Schedule TO-1 (Final) Columns
(h) and (i) are not shown on Schedule TO-1 (Final)\" **[Thank you for
your comment. J-6.1.2 will be revised to delete G.]{.underline}**

\"Attachment J-6, J-6.1.2 G. 2., 3. Whom does Agency report to?\"
**[Thank you for your comment . J-6.1.2 G is not applicable and will be
deleted.]{.underline}**

\"Attachment J-6, J-6.1.6 Schedule TO-5 Annual Cancellation Ceiling
Schedule. There is no Column (a) of Schedule TO-5, Outstanding Capital
Investment\" **[Thank you for the comment. We will correct the
oversight.]{.underline}**

\"J-6.1.3 A. & B. Unclear-appears to require submission of two TO-2
Schedules? Please clarify intent. **[Thank you for your comment. We will
consider a revision to clarify all items that apply to TO-2
schedule.]{.underline}**

**Section B**

\"B.1 - Maximum contract value, \$1 billion incl. interest Not clear if
mcv is for base period of 5 years or total performance period. \>
Converting to a project award value, shows this maximum results in
approximately \$400M in capital investment over a possible 11 year
period, which equates to less than \$40 M per year per awarded
contractor. \> In either case we recommend at least a mcv of \$1 billion
per year per contractor.\" **[Thanks for your comment. We will
re-evaluate the maximum order value to ensure that it is adequate to
meet all Executive Orders and legislative energy goals.]{.underline}**

\"B.1 Maximum Contract value is stated at \$1 billion in total
contractor payments per awarded contract. This will only allow for \$400
million in actual implementation work or less implemented per contract
and is insufficient to address the energy infrastructure and
conservation needs required of the federal government. Is this meant to
cover the entire 11 year ordering period? If so, then it will restrict
contractor awards to an average of less than \$40M per year. A few large
projects that include O&M services would result in a contractor that has
quickly reached the cap, penalizing those that are swift, efficient, and
capable of helping the Government meets its efficiency goals. We
strongly suggest that the maximum contract value be increased to \$5
billion in total contractor payments per awarded contract for the
initial 5-year ordering period. Each of the 3-year extensions should be
accompanied with increases in the cap to accommodate expected future
program growth including larger project sizes and more streamlined
awards, or a single value of \$10 billion. We think this modification is
important given the Government's stated desire to produce more ESPC
work, which is consistent with the most resent Executive order requiring
a doubling of the progress made on federal facility energy usage
reduction. B.2 The Government requires ESPC conservation services for
all Federal facilities and seeks to obtain these services using this
master IDIQ contract. While the Cover Letter indicates that there are no
geographical boundaries, the draft RFP does not. Please clarify in the
draft RFP that there are no geographical boundaries to the IDIQ
contract.\" **[Thanks for your comment. We will re-evaluate the maximum
order value to ensure that it is adequate to meet all Executive Orders
and legislative energy goals.]{.underline}**

\"B.1 Restriction of contract amount to \$1 B The FPCC has several
questions about this limit: first, is \$1 B the maximum contract amount
for each contractor awarded? Is it the limit per year? Has the GO
considered that the implementation amount is approximately half of the
\$1 B total when financing costs are factored in? Is this the limit for
the base period with the intent to add as needed in the follow on
periods? If \$1 B is the maximum for all contractors under the Super
ESPC and for the entire base and renewal periods, the FPCC believes it
is inadequate given the potential 11-year ordering period and the desire
to include renewable energy and O&M. Converting to a project award
value, shows this maximum results in approximately \$400M in capital
investment over a possible 11 year period, which equates to less than
\$40 M per year per awarded contractor. Depending on the number of
qualified contractors, this restriction could also substantially limit
the government's interest in increasing the total amount of ESPCs in the
Federal government. The FPCC suggests increasing the Maximum Contract
Value to \$11 B (equivalent to \$1 B per year) in order to increase size
and quantity of projects and attractiveness of this contract to
potential offers.\" **[Thanks for your comment. We will re-evaluate the
maximum order value to ensure that it is adequate to meet all Executive
Orders and legislative energy goals.]{.underline}**

\"Question: Sec B.1 - Please clarify what term of the proposed contract
term the \$1B applies. Does it apply to the first 5 year term or the
entire potential 11 year term? In either case, the \$1B maximum is too
low when considering the actual project investment is typically less
than 1/2 of the sum of the annual contract payments. Using this rule of
thumb, the current limit would be less than \$500 million.
Recommendation: The recommended maximum contract limit should be raised
to at least \$3B if applied to the first 5 years of the contract term.
It should be at least \$6B if applied to the entire potential 11 year
term.\" **[The maximum contract value is for the entire potential 11
year term. Thanks for your comment. We will re-evaluate the maximum
order value to ensure that it is adequate to meet all Executive Orders
and legislative energy goals.]{.underline}**

\"THE TOTAL MAXIMUM CONTRACT VALUE, defined as the sum of contractor
payment streams associated with all TOs against each master IDIQ
contract, shall not exceed \$1,000,000,000.00 (one billion dollars). It
is not in the Government\'s best interest to limit each IDIQ contract to
\$1.0 Billion. 1) As defined, this limits implementation investment to
approximately \$450 Million per contractor, which can be used up very
quickly by just a few large projects. 2) When spread over a potential
11-year period, this results in little more than \$40 Million average
implementation investment per contractor annually without any operations
and maintenance being factored in, an unattractive business prospect
both for the ESCOs and the Government. 3) The DOE has been seeking
larger and larger projects - this will make that goal more difficult to
achieve, especially in light of the emphasis on renewable energy
technologies. Recommend increasing limit on sum of contractor payment
streams to \$10 Billion per IDIQ contract.\" **[Thanks for your comment.
We will re-evaluate the maximum order value to ensure that it is
adequate to meet all Executive Orders and legislative energy
goals.]{.underline}**

\"TOTAL MAXIMUM CONTRACT VALUE associated with all Task Orders against
EACH master contract IDIQ shall not exceed one billion dollars. Are we
correct to infer that this Max Contract Value applies to each singular
IDIQ contract awardee - that is, each awardee\'s Max Contract Value is
\$1 Billion? Does the limit apply to the base period or base plus option
years? If ten IDIQ contracts were awarded, would the collective Total
Maximum Contract Value be \$10 billion? If not, and the collective limit
is \$1 billion, the limit is too low to meet the Govt\'s goals
considering that Contract Value include interest expense and the Gov'ts
desire for Contractors to perform more renewable projects, O&M and R&R
which adds to the length of the Performance Periods. We suggest
increasing the limit to \$100 billion (if collective), or \$11 billion
(if per awardee).\" **[Thanks for your comment. We will re-evaluate the
maximum order value to ensure that it is adequate to meet all Executive
Orders and legislative energy goals.]{.underline}**

**Section C**

\"1) Inspections and measurements conducted by the contractor for this
post-installation report should be witnessed by the agency, in
accordance with FEMP's \"Guide to Government Witnessing and Review of
Post-Installation and Annual M&V Activities.\" Recommend changing
\"should be witnessed by the agency...\" to, \"shall be witnessed by the
agency...\" 2) The post-installation report should be reviewed as
recommended in FEMP's "Reviewing Performance Reports for Federal ESPC
Projects," and must be accepted in writing, by the agency. Recommend
changing \"post-installation report should be reviewed...\" to,
\"post-installation report shall be reviewed...\"\" **[Thank you for the
comments. We will consider making the changes.]{.underline}**

\"1) The contractor shall prepare and submit a design and construction
package to the Federal agency for review and approval prior to starting
ECM installation in accordance with Attachment J-5, Sample Deliverables
for Task Orders. The design and construction package shall be certified
by a registered engineer to assure compliance with applicable building
codes and Federal agency design standards. Requirement for a complete
D&C Package prior to installation of ECMs would delay implementation of
the more simple and straightforward ECMs that could be generating
savings while complex design work is completed. **[It is DOE's intent
that agencies have the flexibility to allow phased implementation of
ECMs for each TO]{.underline}** 2) Acceptance of the design and
construction package by the agency shall not relieve the contractor from
responsibility for adequacy of its design and installation work. What is
the standard for federal construction contract regulations?\" **[See
C.5.2 for more information regarding standards for federal construction
contract regulations.]{.underline}**

\"7.1 \"The contractor shall be responsible for preventive maintenance
of all installed ECMs.\" As written, this conflicts with J-8, 3.c.
Preventive Maintenance: \"Responsibility for maintenance is negotiable,
and it can impact performance. Clarify how long-term preventive
maintenance will be assured, especially if the party responsible for
long-term performance is not responsible for maintenance (e.g.,
contractor provides maintenance checklist and reporting frequency).
Clarify who is responsible for performing long-term preventive
maintenance to maintain operational performance throughout the contract
term. Clarify what will be done if inadequate preventive maintenance
impacts performance.\" Recommend re-writing C.7.1 to reflect ability to
negotiate responsibility. 7.3 If the agency materially fails to perform
preventive maintenance per preventive maintenance work procedures and
checklists, and the performance of the installed ECMs is adversely
affected (including manufacturer equipment warranties), then the agency
may give due consideration to the contractor for the losses directly
attributable to that material failure. Revise to \"If the Government
materially fails to perform preventive maintenance..., then the
Government will either (a) allow the Contractor to step in and perform
the required maintenance in a manner such that the performance of the
installed ECMs is restored to its specified level of performance to
achieve sufficient savings to make the Government\'s scheduled payment
and will compensate the Contractor at the Contractor\'s cost plus the
applicable performance period markup for performing such required
preventive maintenance\' or (b) hold the Contractor harmless for
insufficient savings resulting from the Government\'s failure to perform
the required preventive maintenance.\" **[Thank you for your comments.
Under the applicable ESPC statute, the Government is neither allowed nor
required to undertake the risk of ECM repairs or maintenance. Rather,
that responsibility lies with the contractor. See 42 U.S.C. §
8287(a)(2)(A). In addition, because the contractor is responsible for
the level of guaranteed savings, the contractor bears the ultimate
responsibility for the proper repair, maintenance and operations of the
equipment installed. Although *responsibility* for repair, maintenance
or operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"8.1 \"The contractor shall be responsible for the repair of all
installed ECMs.\" As written, this conflicts with J-8, 3.d. Equipment
Repair and Replacement: \"Responsibility for repair and replacement of
contractor-installed equipment is negotiable, however it is often tied
to project performance. Clarify who is responsible for performing
replacement of failed components or equipment throughout the term of the
contract. Specifically address potential impacts on performance due to
equipment failure. Specify expected equipment life and warranties for
all installed equipment. Discuss replacement responsibility when
equipment life is shorter than the term of the contract.\" Recommend
re-writing C.8.1 to reflect ability to negotiate responsibility. 8.3.A
If the agency assumes the performance of ECM repair work, and equipment
failure or damage is a direct result of the agency's material failure to
perform repairs, the agency may provide due consideration to the
contractor for the losses directly attributable to that material
failure. Revise to \"If the Government materially fails to repair an
ECM..., then the Government will either (a) allow the Contractor to step
in and perform the required repairs in a manner such that the
performance of the installed ECMs is restored to its specified level of
performance to achieve sufficient savings to make the Government\'s
scheduled payment and will compensate the Contractor at the
Contractor\'s cost plus the applicable performance period markup for
performing such required repairs, or (b) hold the Contractor harmless
for insufficient savings resulting from the Government\'s failure to
perform the required repairs.\" **[We are considering adjusting J-8.3.b
to be in alignment with C.6.1. Under the applicable ESPC statute, the
Government is neither allowed nor required to undertake the risk of ECM
repairs or maintenance. Rather, that responsibility lies with the
contractor. See 42 U.S.C. § 8287(a)(2)(A). In addition, because the
contractor is responsible for the level of guaranteed savings, the
contractor bears the ultimate responsibility for the proper repair,
maintenance and operations of the equipment installed. Although
*responsibility* for repair, maintenance or operations remains with the
contractor, *performance* of these activities may be undertaken by
either the contractor or agency, as negotiated. Where the agency
performs the activities, the contractor is required to provide adequate
work requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

\"Any escrow account.....shall be in accord with Federal fiscal law Is
the escrow to be owned by the Government? Where are such guidelines?\"
**[Thank you for your comment. We will consider making a
change.]{.underline}**

\"Assumption of Operations by Government It seems the insurance issues
are unresolved if Govt. operates contractor owned equipment.\" **[Thanks
for the comment.]{.underline}**

\"Comment: C.1.1 The cost of an energy savings performance contract
(ESPC) TO project (hereafter referred to as TO project) must be covered
by the reduced energy, water, and related cost savings incurred at the
Federal facility. This statement could be interpreted as to not allow
buy-down funds at award or acceptance. Additionally, theres is no direct
mention of the allowability of Renewable Energy in this section. In the
definitions attachment defining \"Energy Conservation Measures\", there
is specific reference to allowability of Renewable Energy technologies.
Recommendation: Suggest the addition of specific language in this
section for: 1) the allowability of using \"buy-down\" funds, 2) the
allowability of renewable energy technologies and 3) combining
appropriated funds to leverage funding and optimize project scope as
allowed by E.O. 13423.\" **[Thanks for the recommendation. We will
consider changing the language.]{.underline}**

\"Comment: C.4.2 - Investment grade audit (IGA) -- An investment grade
audit typically requires an in depth description of existing facilities,
including building construction history and details that have little
relevance to facility energy and water use. This information normally is
not included in a Detailed Energy Survey unless the building components
are affected by the proposed ECMs. An easy comparison is to that IGAs
are typically engineering studies while a DES is detailed energy
engineering analysis, combined with specific work requirements to
install recommended ECMs. Replacing the current DES with an IGA
requirement may significantly increase ESPC project development time and
associated development costs. Also, keeping the DES terminology would
avoid agency expectation that a change in terminology represents a
broadening of scope the activity we currently call a DES.
Recommendation: Suggest DOE revert back to the DES nomenclature and the
associated definition for DES. Keeping the DES terminology would avoid
agency expectation that a change in terminology represents a broadening
of scope the activity we currently call a DES.\" **[Thanks for the
suggestion; the terminology was changed to address weaknesses
experienced during previous projects at multiple
agencies.]{.underline}**

\"Comment: Sec C.12.1 - C.12.5 - EERE requirements. In each of these
sections, there is a requirement for the \"contractor assessment\" of
potential EERE incentives, emission credits, etc. Recognizing that
incentives, emission credits, etc. may not be available in certain
regions of the country, this requirement may create an unreasonable
expectation for the contractor to perform an \"assessment\" where items
may not warrant such an assessment. Additionally, these sections also
create an expectation for the contractor to assume the risk for the
long-term availability and applicability of these incentives, emissions
credits,etc. Recommendation: Suggest the addition of new language: 1)
\"if incentives are available in location or where applicable\" and 2)
\"long term benefit of these incentives shall be discussed and
negotiated by contractor and government for each project\".\" **[Thanks
for the comments. We will consider making the changes.]{.underline}**

\"Comment: Sec. C.2 - The list of ECMs has been moved to an attachment
(Attachment 4) and \"Technology Categories\" has been added. There is no
ECM/TC for Proposal Development Energy Surveys as allowed in the current
contract. Recommendation: Please clarify where the PA/IP and IGA/DES
development survey costs can be recovered in the project without a
specific ECM/TC.\" **[The project development costs (PA and IGA) will be
listed on Schedule TO-2.]{.underline}**

\"Comment: Sec. C.4.2 - \"Each building and/or space within that
building that will be affected should be identified, and buildings or
portions of buildings that will not be affected should be identified.\"
Most ECMs are "system related" and as such current ESPC practice
establishes that information about non affected spaces or buildings is
not identified. This new requirement will add development time and
expense to the overall project. Recommendation: Suggest removing
language stating \"and buildings and/or portions of buildings that will
not be affected should be identified.\"\" . **[Thanks for the
recommendation. We will consider making the change.]{.underline}**

\"Comment: Sec. C.4.6.C, D -- These sections no longer refer to the
duration of government review of the M&V reports. The proposed contract
should limit government review to 30 calendar days. Recommendation:
Suggest adding time deadline for Government review of M&V report or
include language specifying \"Time schedule for Government acceptance of
the post installation M&V report and the annual M&V reports must be
specified in the TO\".\" **[Thanks for the comment. We will consider
making the change.]{.underline}**

\"Comment: Sec. C.4.6.C, D -- These sections no longer require the
identification of \"The maximum duration of the contractor\'s submittal
of and the Government review of the Report shall be specified in the DO
RFP\", as required in the current contract (Sec. C.4.2 c & d). Our
experience has shown it is important for the Government to accept a time
deadling to insure review and corresponding acceptance of the M&V
reports occur and then subsequent payments can be made. Recommendation:
Recommendation is the proposed contract should limit government review
to 30 calendar days. Suggest adding time deadline for Government review
of M&V report or revert to the language in the current contract.\"
**[Thanks for the comment. We will consider making the
change.]{.underline}**

\"Comment: Sec.C.5.4 - ECM Commissioning insinuates there will be
Commission Report format provided in this contract and it will be
presented in \"Attachment TBD\". Recommendation: We request to see and
to comment on the proposed attachment before inclusion in the
contract.\" **[We will take your request under
advisement.]{.underline}**

\"Comment: Sec.C.6.1 - \"Regardless of who performs the operations, the
contractor shall be responsible for the operations of all installed
ECMs.\" This sentence could be misinterpreted because of the current
wording. Recommendation: Suggest DOE change language to \"Regardless of
who performs the operations of the ECMs, the contractor shall be
reponsible for insuring the operations are performed as necessary to
achieve the savings.\"\" .\" **[Thanks for the comment.]{.underline}**
**[Under the applicable ESPC statute, the Government is neither allowed
nor required to undertake the risk of ECM repairs or maintenance.
Rather, that responsibility lies with the contractor. See 42 U.S.C. §
8287(a)(2)(A). In addition, because the contractor is responsible for
the level of guaranteed savings, the contractor bears the ultimate
responsibility for the proper repair, maintenance and operations of the
equipment installed. Although *responsibility* for repair, maintenance
or operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"Comment: Sec.C.7.3 - similar to our comment on Sec.C.6.3,
Recommendation: Suggest changing the word \"may\" to \"shall\" in the
last sentence. Also, to insure a clear understanding between Sec. 7.1
and Sec. 7.3, suggest DOE add at the end of the last sentence \"and the
Government will be responsible for any savings losses attributed to this
failure.\"\" .\" **[Thanks for the comment.]{.underline}** **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"Comment: Sec.C.8.3.A. - similar to our comment on Sec.C.6.3 and
Sec.C.7.3 Recommendation: Suggest changing the word \"may\" to \"shall\"
in the last sentence. Also, to insure a clear understanding of savings
responsibility suggest DOE add at the end of the last sentence \"and the
Government will be responsible for any savings losses attributed to this
failure.\"\" .\" **[Thanks for the comment.]{.underline}** **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"C.1 The cost of an energy savings performance contract (ESPC) TO
project (hereafter referred to as TO project) must be covered by the
reduced energy, water, and related cost savings incurred at the Federal
facility. Please change language to: The cost of an energy savings
performance contract (ESPC) TO project (hereafter referred to as TO
project) must be covered by the reduced energy, water, and related cost
savings incurred or expected to be incurred at the Federal facility.
**[Thanks for the recommendation. We will consider changing the
language.]{.underline}**

C.1.1. Is the intent to limit verification and documentation of savings
(M&V) to only annual reporting or to no longer intervals than annual?
Suggest it is made annual only. **[Thanks for the comments. At a
minimum, the law requires annual M&V.]{.underline}**

C.1.2. Language is vague to geographic location while Cover Letter
states no geographic boundary. Clarify section to be more specific to
actual geographic boundary of contract. **[Thank you for the comment. We
will consider making a change.]{.underline}**

C.10.1 \"Prior to acceptance of TO\" is vague deadline Please change to
say \"at Training Class\" to be consistent with Att J-5 **[Thank you for
your comment. We are considering clarifying language to address your
comment.]{.underline}**

C.11 This paragraph allows the agency to solely determine the savings
impact of their subsequent \"projects\". Contractor requires some input
or redress. Modify contract to allow for equitable determination of
impact with input of both Government and ESCO. **[Thanks for the
comment. We will consider making the change.]{.underline}**

C.11 ESCO cannot be expected to assume the risk of Government changes in
operations; an equitable adjustment to the baseline should always be an
available solution (as per previous contract), not just one of several
choices Change wording so that if a baseline adjustment is needed, then
an equitable adjustment through a contract modification is automatically
triggered. **[Thanks for the comment. We will consider making the
change.]{.underline}**

C.12 The language directing the contractor to evaluate all tax and
financial incentives is onerous. The contractor shall pursue the
availability and value of said incentives only to the extent that the
Government will allow the contractor to apply these incentives to the
project and utilize the financial instruments necessary to take
advantage of the benefits. Allow agency and contractor to work together
to evaluate and acquire incentives where applicable. **[Thanks for the
comment. We will consider making the change.]{.underline}**

C.13 This is a change from the present DOE IDIQs in that it appears that
the government is now going to charge the Contractor for the use of
water and electricity while performing the Work. How will the amount and
cost of this be established in the proposal phase? How will this cost be
transacted with the Government? Recommend that these utilities remain
free of charge as is currently in the existing IDIQ. **[Thanks for the
comment. We will consider making the change to clarify.]{.underline}**

C.14 It is typical to state that contractors must furnish only new
equipment and materials unless otherwise approved. Please clarify
intent. **[Thanks for the comment. We agree that the use of new
equipment and material is the norm.]{.underline}**

C.14 Industrial grade equipment may be more than is required especially
in a commercial environment. Allow for commercial grade equipment where
applications are not in an industrial environment **[Thanks for the
comment. We will consider making the change.]{.underline}**

C.17 It is not common practice to inventory all equipment to be removed
or demolished. Please remove this reference. **[Thanks for the comment.
We will consider making the change.]{.underline}**

C.18 Burdening the cost of projects with significant hazardous waste
abatement costs may prohibit the implementation of energy efficiency
projects. Allow for the government to accomplish hazardous waste
abatement through separate contracts where they may already be in place
or it is more cost effective. **[Thanks for the comment. We will
consider making the change.]{.underline}**

C.19 Waste removal should be a direct project cost, not performed by the
contractor \"at its expense\". This implies that it is not a recoverable
direct cost. Waste removal should be considered a direct project cost.
**[Thanks for the comment. We will consider making the
change.]{.underline}**

C.2.1 From the text \"and reduce energy- related O&M Costs.\" This is
likely restrictive, as many projects may increase O&M costs while
reducing the total overall cost to the Government. Allow for increase in
O&M costs, especially where the contractor is assuming O&M
responsibility from the Government. **[Thanks for the comment. We will
consider making the change.]{.underline}**

C.21.3 This should read Contractor is responsible for coordinating
access but the Agency is responsible for allowing access. Please make
requested clarification. **[Thanks for the comment. We will consider
making the change.]{.underline}**

C.3 Says occupants must have ability to override HVAC and lighting
controls. Do that mean the tenants in each cubicle or the EMCS operator
or something in between? Without input from the contractor this leaves
the contractor open for significant risk of not attaining savings at the
Government\'s discretion. Please define occupants. Also, language must
be modified to allow for protection of the contractor from loss of
savings should the Government choose to completely override intent of
the improvements for convenience. **[By "occupants" we mean the agency.
Thanks for the recommendation. We will consider making the
change.]{.underline}**

C.4.2 Is this section meant to say that the analysis must be in the
areas that are effected and the areas that are not? IGA should focus
only on the areas where Contractor is implementing projects. A full
audit of all facilities and equipment that have no impact on the project
is costly and places undue risk of significant development costs on the
Contractor with no compensation. **[No, the intent is to identify, not
analyze, the areas not affected.]{.underline}**

C.4.5.B There are numerous references to \"actual savings\" (e.g.,
C.4.5.B). The term \"actual savings\" is not defined in the document.
Change references to \"actual savings\" to \"verified savings\" and
define \"verified savings\" in Attachment J-2 as \"Energy and cost
savings determined in accordance with the TO M&V Plan.\" **[Thanks for
the comment. We will consider making the change.]{.underline}**

C.4.6 The witnessing requirements during development, construction, and
performance periods could cause delays in awards, acceptances, and
annual payments, respectively Make witnessing optional and put a time
limit on waiting for witness to be assigned and to show up. **[Thanks
for the comment. It is DOE's expectation that agencies will perform
witnessing activities in accordance with the DOE_FEMP Guide to
Commissioning located on the DOE-FEMP website.]{.underline}**

C.4.6.B States Agency SHOULD review annual M&V reports and accept in
writing. Not clear is MUST be accepted in writing like it state for
Post-installation M&V Report but expect that is the intent. Clarify
whether annual M&V report must be accepted in writing. **[Thanks for the
comment. It is DOE's expectation that agencies will perform witnessing
activities in accordance with the DOE_FEMP Guide to Commissioning
located on the DOE-FEMP website.]{.underline}**

C.4.6.C The post-installation report should be reviewed as recommended
in FEMP's "Reviewing Performance Reports for Federal ESPC Projects," and
must be accepted in writing, by the agency. What happens if the project
is not accepted in writing by the agency in a reasonable time or at all.
Failure to accept the report can not be used as a tool to withhold
payment from the contractor. Should include language that after 45 days
the post-installation, M&V and Cx reports become accepted by default.
**[Thanks for the comment. We will consider making the
change.]{.underline}**

C.5.1 The Design and Construction Package should only be required for
ECM\'s that need further design after IGA & Final Proposal is submitted
(many do not) Clarify that these requirements only apply to ECM\'s that
require further design development after award. **[No, it is our intent
that all ECMs should be addressed in the design and construction
package.]{.underline}**

C.5.1.A The text requires that \"The design and construction package
shall be certified by a registered engineer to assure compliance\". This
is probably overkill and the package could be certified by the
Contractor. Lighting and water measures, for example, are typically not
certified by a registered engineer. . **[Thanks for the comment. We will
consider making the change.]{.underline}**

C.5.1.C.6 The Acquisition of Permits section requires the contractor to
obtain the permits. The section should be modified to allow the owner to
obtain permits as applicable. **[Thanks for the comment. We will
consider making the change.]{.underline}**

C.5.1.C.1 The Design & Construction package requires mfg data and
details for all ECM equipment. In a design/build environment, it is
unreasonable to have designed and selected every piece of equipment and
material at the stage this package would be submitted. Replace \"all\"
with \"all major\". This will not dilute the intent. **[Thanks for the
comment. We will consider making the change.]{.underline}**

C.5.1.D Both preliminary and final review should not be required. One
review should be enough, second review should only be needed if major
changes are made Change to additional reviews as needed **[Thanks for
the comment. We will consider making the change.]{.underline}**

C.5.1.B This says bonds are not required at contract award but later
after design approval. Please confirm. **[Bonding requirements will be
specified in each TO.]{.underline}**

C.5.1.C Not all ECM's (like lighting and water) have drawings, but
line-by-line accounting of implementation. To provide for them would not
be cost effective. Change to provide drawings as needed. **[Thanks for
the comment. We will consider making the change.]{.underline}**

C.5.2.A We have committed to compliance with NFPA 70E, regulating safety
when working on live electric circuits. The code should be explicitly
mentioned here and its application to power measurements noted. Insert
after NEC, \"NFPA 70E, including but not limited to its application to
electric energy metering\" **[Thanks for the comment. We will consider
making the change to specifically include NFPA 70E also.]{.underline}**

C.5.2.A Regarding AIA Masterspec. Is it being required to use the
divisions structure and the organization of individual sections, or to
provide full book specs for each projects which will likely increase
design costs Eliminate this line or modify it to allow for abbreviated
specs using the Masterspec format. **[Thanks for the comment.
Requirements will be incorporated within each TO.]{.underline}**

C.5.4 Last part of sentence in opening paragraph reads \"in accordance
with Attachment TBD\" Strike this reference unless the attachment (J-12)
can be developed in time to be incorporated with this update. **[Thanks
for the comment. We will consider making the change.]{.underline}**

C.5.5.C The document states \"The contractor shall prepare at its
expense all documentation necessary to acquire permits.\" The section
should be modified to allow the owner to obtain permits as applicable.
**[Thanks for the comment. We will consider making the
change.]{.underline}**

C.5.5.B Proposed language on Indemnification and fines put increased
risk on contractor and will increase project costs. This language needs
to be modified to be more equitable to the Contractor. **[Thanks for the
comment. We will consider making the change.]{.underline}**

C.5.5.C This paragraph requires all permits be issued before NTP. Some
permits can (and probably should) be filed nearer to acceptance. State
Operating permits (air quality) are an example. Qualify this requirement
by adding \"in accordance with filing requirements of the regulating
agencies\". **[Thanks for the comment. We will consider making the
change.]{.underline}**

C.5.5.C Language could be interpreted to mean that the cost of preparing
documentation is not recoverable as a direct project cost. State that as
part of the performance of the project, the responsibility of preparing
said documentation is the responsibility of the contractor. **[Thanks
for the comment. We will consider making the change.]{.underline}**

C.5.7 The term \"as-built drawings\" is out of favor with insurance
companies and design consultants. Change \"as-built\" to \"record\".
**[Thanks for the comment. We will consider making the
change.]{.underline}**

C.5.7 As-Built Drawings: state as-builts required after completion of
installation and Gov\'t acceptance. Conflicts with Att J-5 Deliverables
that says as-builts required before Gov\'t acceptance. Change Att J-5 to
reflect as-builts due 60-90 days after acceptance by gov\'t so as not to
delay final acceptance for as-builts. **[Thanks for the comment. We will
consider making the change.]{.underline}**

C.6.1 This section explicitly assigns operations responsibility to the
contractor and requires that we document instances of improper operation
in order to request relief for resultant damage. We can delegate tasks
to agency but must provide M&P\'s and training or they are not
accountable. This is obviously intended to transfer operations risk to
us. It isn\'t all new (we do some M&P\'s and training now) but it\'s
going to take a whole new level of effort to comply completely. Try for
deletion at least where the ECM equipment is essentially a replacement.
**[Thanks for the comment. We will consider making the
change.]{.underline}**

C.6.1, 7.1, and 8.1 On past projects, language has been altered to read
\"contractor shall be ultimately responsible\" to acknowledge
government/contractor roles and risk sharing Add the word
\"ultimately\". **[Thanks for the comment. We will consider making the
change.]{.underline}**

C.6.1 & C.8.1 Contractor should not be responsible for negligent acts or
omissions by the government in the operation or maintenance of the
equipment. Government should claim responsibility for their negligent
acts or omissions if they are performing the O&M. **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

C.6.3, 7.3 and 8.3 If the government fails to operate the equipment in
accordance with the Contractor\'s instruction and the equipment is
adversely affected, the government should take into consideration any
losses that result to that failure. Request removal of the words
\"materially\" and \"material\" from last line and change the words
\"may give due consideration\" to \"shall give consideration\". **[Under
the applicable ESPC statute, the Government is neither allowed nor
required to undertake the risk of ECM repairs or maintenance. Rather,
that responsibility lies with the contractor. See 42 U.S.C. §
8287(a)(2)(A). In addition, because the contractor is responsible for
the level of guaranteed savings, the contractor bears the ultimate
responsibility for the proper repair, maintenance and operations of the
equipment installed. Although *responsibility* for repair, maintenance
or operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

C.6.4 States contractor should maintain adequate and necessary record
for repair and replacement to support M&V reporting. Does not state same
requirement for Gov\'t if they retain R&R responsibility. Add
clarification that Gov\'t maintain adequate records and provide to ESCO
for M&V reporting purposes. **[We are considering adding clarifying
language to address Government responsibility for keeping accurate
maintenance records]{.underline}**

C.6.4 Should not mention R&R in a section that deals only with
Operations Delete \"date repair and/or replacement implemented\"
**[Thanks for the comment. We will consider making the
change.]{.underline}**

C.8.2 This appears to be limited to what was installed but it is not
clear. For example if there are controls put on an existing chiller the
failure of the chiller should not be ESCO responsibility. (unless caused
by the controls) Please clarify scope limitations. **[Thanks for the
comment. We will consider making a change to clarify.]{.underline}**

C.8.4 Talks about excess savings above guarantee being retained for
escrow if agency desires. But what about a planned escrow account where
payments are included in schedule TO-3 service phase. Is this allowed?
Clarify IDIQ language to allow escrow account to be funded with payment
included in TO-3 ESCO payments for service phase. How would the account
\"accumulate\" - is it through extra payments? No mod required each
time? Please define \"excess\" **[Thank you for your comment. We are
considering clarifying language to address your comment. "Excess" is
anything that is more than the guaranteed savings.]{.underline}**

C.9.3 The text does not provide any protection if the government causes
harm through its actions. Modify to provide protection of the Contractor
from harm through Government\'s actions. **[Thank you for your comment.
Where the contractor fails to respond as required in the TO and the
agency is required to perform emergency repairs, the contractor bears
the risk for failure to perform its responsibilities under the
TO.]{.underline}**

C.1.1 Should include some language to say the task is the lowering of
the combination of energy, water and O&M costs. This can be read as O&M
must go down. Examples are that most renewables like wind turbines/PV
and also items like cogen/steam turbines will increase the cost of O&M
(regardless of who pay during the term, the government will pay after
term) Please clarify.\" **[Thanks for the recommendation. We will
consider clarifying the language.]{.underline}**

\"C.11 Government Projects This language has the potential to makes the
ESCO responsible for savings shortfalls as a result of follow-on
projects implemented by the Agency. . The FPCC strongly recommends the
language be changed to reflect government responsibility in the case of
an Agency project(s) that is installed after an ESPC and has the
potential to negatively impact the savings stream of an ESPC. The Agency
should be responsible for adjusting the savings as mutually agreed to by
both parties.\" **[Thanks for the comment. We will consider making the
change.]{.underline}**

C.12 States that Contractor is responsible for determining source,
value, and availability of any applicable financial and tax incentives.
Not all Agencies are willing and able to structure a TO to take
advantage of incentives. Suggest re-wording as follows: Contractor and
Agency shall collaborate to determine source, value, and availability of
any applicable financial and tax incentives.\" **[Thanks for the
comment. We will consider making the change.]{.underline}**

\"C.12.1, 2,3,4 States that contractor\'s assessment should account for
Agency\'s administrative costs. Contractors cannot determine Agency\'s
costs. Suggest deleting this requirement.\" **[Thanks for the comment.
We will consider making the change.]{.underline}**

\"C.12.1,2,3,4 EERE Financial incentives The Agency and the ESCO should
jointly agree on how incentives will be applied and work together to
acquire incentives where applicable. The FPCC suggests that the ESCO
should not be responsible for a comprehensive assessment of financial
incentives but should be required only to perform evaluations as
appropriate. We are concerned about what the requirement is for
"comprehensive analysis", especially in light of the quickly changing
nature of the incentive market and the resources necessary to do a
comprehensive analysis in various regions and states. The agency must
understand that there are administrative costs associated with these
tasks. Fees could be paid from sale of REC related to the project;
however, an ESCO cannot guarantee future availability and value of
credits. The government and the ESCO should work together to make
necessary adjustments if there are changes in the renewable energy
incentive market, that impact ESPC project financials. The government
must accept the risk of satisfying annual renewable goals when
associated with REC trading and valuation.\" **[Thanks for the comment.
We will consider making the change.]{.underline}**

\"C.12.2 -- This discussion of emissions credits should be broadened to
include future Federal programs such as carbon cap and trade. **[Thanks
for the comment. We will consider making the change.]{.underline}**

C.15.5 -- To whom is proof of citizenship to be furnished? **[The agency
will coordinate with the contractor and specify to whom the contractor
shall submit.]{.underline}**

C.16 -- Replace "blow torch" with "gas cutting". **[Thanks for the
comment. We will consider making the change.]{.underline}**

C.17 -- Add the following statement; "During detailed design, both the
contractor and the agency will identify the material and equipment that
is to be stored. **[Thanks for the comment. We will consider making the
change.]{.underline}**

C.18.1 -- Instead of "hazardous-containing material," should be either
"hazardous material" or "hazard-containing material." **[Thanks for the
comment. We will consider making the change.]{.underline}**

C.19 -- Suggest requiring the contractor to routinely remove debris
(i.e. ... resulting from the work shall be routinely removed from agency
property ....). **[Thanks for the comment. We will consider making the
change.]{.underline}**

C.19 -- Should be "... removed from agency property and properly
disposed of by the contractor ..." **[Thanks for the comment. We will
consider making the change.]{.underline}**

C.22 -- Specify to whom the monthly work schedule will be submitted.\"
**[Thanks for the comment. We will consider making the change. However,
the agency will let the contractor know to whom the schedule will be
submitted.]{.underline}**

\"C.13 The Agency will furnish utilities...at a cost mutually agreed
to... Implies that Contractor will reimburse the Agency for the cost of
utilities consumed. If this is the intent, why the change from the
existing IDIQs, and what will be the mechanics of reimbursement? This
would be needlessly complex. Recommend that Agencies bear the cost for
simplicity.\" **[Thanks for the comment. We will consider making the
change.]{.underline}**

\"C.14 - Please define \"industrial grade\".\" **[Thanks for the
comment. We will consider adding a definition for "industrial
grade".]{.underline}**

\"C.14 States materials and supplies shall be industrial grade.
Industrial grade materials and supplies are not always required.
Commercial grade often acceptable. Suggest deletion of requirement for
industrial grade.\" .\" **[Thanks for the comment. We will consider
making the change.]{.underline}**

\"C.17 Contradictory language in paragraph. Suggest adding \"\"and
designated as surplus by the Agency\" in last sentence between
\"stored\" and \"and\"\" .\" **[Thanks for the comment. We will consider
making the change.]{.underline}**

\"C.18.1 States that Contractor should include the cost of removal of
any known hazardous-containing material. Suggest appending \"unless the
Agency accepts responsibility for removal.\"\" .\" **[Thanks for the
comment. We will consider making the change.]{.underline}**

\"C.1.1 -- Suggest changing the last words in this section, "verified
and documented annually," to "documented and reported annually."\" .\"
**[Thanks for the comment. We will consider making the
change.]{.underline}**

\"C.1.1 General Requirements The language that requires the cost of an
ESPC must be covered by the reduced energy, water and related cost
savings incurred at the Federal facility is counter to the recent
Executive Order, DOE directive and legislative language including
renewable energy in ESPCs. However, the FPCC acknowledges that in the
definitions attachment there is the inclusion of renewable energy in the
definition of "Energy Conservation Measure". We would suggest that
renewable energy also be added to the General Requirements to ensure
there is no potential for differing interpretations about the allow
ability of renewable energy. Additionally, the current language appears
to bar the Executive Order and legislative language permissibility on
using appropriated dollars to buy down an ESPC.\" **[The intent of this
paragraph is not to specifically prohibit or allow anything, and the
requirement that the cost of an ESPC be covered by reduced energy,
water, and related cost savings, is a statutory requirement. With
respect to use of appropriated funds in ESPCs, see the DOE-FEMP
Guidelines Regarding One-Time Payments and One-Time Savings in Energy
Savings Performance Contracts.]{.underline}**

\"C.3 - This will have a negative impact on savings. These types of
overrides will need to be monitored.\" **[Thanks for the
comment.]{.underline}**

\"C.4.1 -- Suggest replacing the words "risk allocation" with "risk and
responsibility allocations." **[Thanks for the comment. We will consider
making the change.]{.underline}**

C.4.2 and in general -- The words "shall" and "should" have specific
meanings in contract language. The draft seems to use "should" in places
where "shall" seems more appropriate. See for example Para. C.4.2.
**[Thanks for the comment. We will consider making the
change.]{.underline}**

C.4.2 -- In the second sentence, change the word "verified" to
"evaluated." **[Thanks for the recommendation. We will consider making
the change however; at this point we disagree with your
comment.]{.underline}**

C.4.5.B -- Suggest changes to prevent confusion and be consistent with
the previous sentence. Change the passage, "Where feasible, adjustments
to the calculation methodology for savings are to be preferred over
changes to the baseline. Such adjustments make it easier to present the
"actual" savings." \-- to read as follows: "Where feasible,
modifications to the calculation methodology for savings are to be
preferred over adjustments to the baseline. Modifications of calculation
methods make it easier to present the reported savings." \[Emphases
added.\] **[Thanks for the comment. We will consider making the
change.]{.underline}**\
C.4.5, Item D -- Seems to be weak in terms of the expected outcome of
the annual M&V inspection. Suggest changing to the following: "Conduct
annual M&V activities to verify operation of the installed
equipment/systems, calculate the last year's energy savings, and compare
reported and guaranteed savings." **[Thanks for the comment. We will
consider making the change.]{.underline}**\
C.4.6, Items B, C & D -- These items state the ordering installation
"should review" or "should witness." Why does it not require the
ordering installation to review or to witness (via "shall witness" or
"shall review")?\" **[Thanks for the questions. It is DOE's expectation
that agencies will perform witnessing activities in accordance with the
DOE_FEMP Guide to Commissioning located on the DOE-FEMP website. Some
flexibility must be maintained due to resource and cost
considerations.]{.underline}**

\"C.4.2 - Recommended Text: The TO (contract), in conjunction with the
Annual Reconciliation Report, is the primary vehicle through which the
agency and the contractor shall understand and periodically evaluate the
performance expectations for the TO. Also Recommend collapsing or
reducing the document; get rid of the duplicity or repetition.\"
**[Thanks for the recommendation.]{.underline}**

\"C.4.2 - \"buildings or portions of buildings that will not be affected
should be identified\"\....this requirement substantially increases cost
and added ESCO responsibility. Comment: Only the buildings and/or spaces
within a building that will be affected should be identified by the
ESCO.\" **[Thanks for the recommendation. We will consider making the
change.]{.underline}**

\"c.4.3 - \"the first step in developing and M&V Plan - determining what
needs to be measusred and verified will be accomplished throught the
complention of the risk/responsibililty matrix as part of the PA....\"
Comment: When the PA is developed there is insufficient information to
develop a site-specific M&V plan. This can only be done once ECMs are
determined and data collected to assess current consumption levels\"
**[We agree. The PA doesn't require a site specific M&V plan. The PA
requires a general description of the M&V plan.]{.underline}**

\"C.4.3 -- \> Section states that Risk and responsibility matrix will be
completed for PA. There would not be enough information gathered or
facts determined during the PA to provide to complete the matrix in
detail. \> Recommend -- Providing options to abbreviate RR matrix in PA
phase, or allowing for not applicable or TBD comments as answers until
information can be solidified. Maybe a separate RR matrix form marked
(PA). **[Thanks for the comment. We will consider making the
change.]{.underline}**

C.6.1 - Contractor responsible for equipment operations \> Can not be
responsible if govt or other entity operates \> Recommend \-- deleting
last sentence C.6.3 - If govt fails to operate ... govt may give due
consideration to contractor for losses. \> Asking the contractor to
accept the responsibility under govt failure incident \> Recommend
Government take responsibility for it's actions indemnify and hold
contractor harmless if its fails to operate ... pursuant to TO
procedures **[Under the applicable ESPC statute, the Government is
neither allowed nor required to undertake the risk of ECM repairs or
maintenance. Rather, that responsibility lies with the contractor. See
42 U.S.C. § 8287(a)(2)(A). In addition, because the contractor is
responsible for the level of guaranteed savings, the contractor bears
the ultimate responsibility for the proper repair, maintenance and
operations of the equipment installed. Although *responsibility* for
repair, maintenance or operations remains with the contractor,
*performance* of these activities may be undertaken by either the
contractor or agency, as negotiated. Where the agency performs the
activities, the contractor is required to provide adequate work
requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

C.7.3 - If agency fails to perform maintenance ... agency may give due
consideration to contractor for losses \> **[Under the applicable ESPC
statute, the Government is neither allowed nor required to undertake the
risk of ECM repairs or maintenance. Rather, that responsibility lies
with the contractor. See 42 U.S.C. § 8287(a)(2)(A). In addition, because
the contractor is responsible for the level of guaranteed savings, the
contractor bears the ultimate responsibility for the proper repair,
maintenance and operations of the equipment installed. Although
*responsibility* for repair, maintenance or operations remains with the
contractor, *performance* of these activities may be undertaken by
either the contractor or agency, as negotiated. Where the agency
performs the activities, the contractor is required to provide adequate
work requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

Same comments and recommendation as C.6.3 C.8.3.A -- Repair work ...
agency material failure \... agency may provide due consideration \>
Same comments and recommendation as

C.6.3 \*\*\* Use term government in C.6.3 and agency in C.8.3.A **[Under
the applicable ESPC statute, the Government is neither allowed nor
required to undertake the risk of ECM repairs or maintenance. Rather,
that responsibility lies with the contractor. See 42 U.S.C. §
8287(a)(2)(A). In addition, because the contractor is responsible for
the level of guaranteed savings, the contractor bears the ultimate
responsibility for the proper repair, maintenance and operations of the
equipment installed. Although *responsibility* for repair, maintenance
or operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

C.8.4 -- p17 Agency retains excess savings ... not paid to contractor
... escrow account by contractor. \> If escrow excess savings not paid
to the contractor then how transfer to contractor's escrow account \>
Clarify intent or mechanism to transfer excess funds to the contractor's
escrow account but not pay contractor **[Thanks for the comment. We will
consider making the change to clarify.]{.underline}**

C.9.2 \-- Emergency repair work is defined as maintenance or repair
necessary to correct ... C.9.3 - Contractor shall indemnify and hold
agency harmless ... if contractor fails to respond to emergency \>

C7.3 & C8.3.A allows agency to assume maintenance or repair therefore
C9.2 and 9.3 should exclude the above C.9.3 condition if agency accepts
maintenance or repair work responsibility **[Thanks for the comment. We
will consider making the change.]{.underline}**

C.11 -- Agency project affects annual savings ... then agency will
determine whether to adjust ... \> If agency project affects savings
then performance elements of contract have to be adjusted \> Recommend a
mutually agreement to the necessary to adjustments\" **[Thanks for the
comment. We will consider making the change.]{.underline}**

\"C.4.4 - Clarification needed. Does DOE want a government
representative to physically witness all baseline development field
activities? This would add cost, delay and require additional govenremnt
manpower.\" **[Yes. However, there may be times when that practice is
not appropriate or feasible. See DOE-FEMP Guidance on Commissioning on
the EERE FEMP website.]{.underline}**

\"C.4.5 B. - Recommended Text: Where such factors beyond the
contractor's control potentially exist, and have a negative impact on
meeting the guarantee, the agency and contractor shall agree on what
measures shall be taken to adjust the baseline, modify savings
calculations or otherwise account for such factors.\" **[Thanks for the
comment. We will consider making the change.]{.underline}**

\"C.4.5 B. - \"The pre-installation baseline should also identify
factors beyond the contractor's control that influence post-installation
energy (e.g., building occupancy, weather, plug load creep, etc.)\".
Recommended: Move this to requirement to the Risk and Responsibility
Section.\" **[Thanks for the comment. We will consider making the
change.]{.underline}**

\"C.4.6 B. - Clarification needed. Does DOE want a government
representative to physically witness all baseline development field
activities? This would add cost, delay and require additional govenremnt
manpower.\" **[Yes. However, there may be times when that practice is
not appropriate or feasible. See DOE-FEMP Guidance on Commissioning on
the EERE FEMP website.]{.underline}**

\"C.4.6 C Indicates that Post Installation Report shall be reviewed and
accepted in writing by the Agency, but does not provide timeline. Since
acceptance of the Post Installation Report triggers the start of
Performance Period Payments, suggest appending to paragraph \"The Agency
review and acceptance procedure and timeline shall be specified in the
TO.\"\" **[Thanks for the comment. We will consider making the
change.]{.underline}**

\"C.4.6 C. - recommended text: Inspections and measurements conducted by
the contractor for this post-installation report shall be witnessed by
the agency, in accordance with FEMP's \"Guide to Government Witnessing
and Review of Post-Installation and Annual M&V Activities.\" recommended
text:: The post-installation report shall be reviewed as recommended in
FEMP's "Reviewing Performance Reports for Federal ESPC Projects," and
must be accepted in writing, by the agency.\" **[Thanks for the comment.
We will consider making the change.]{.underline}**

\"C.4.6 C. - recommended text: The contractor shall prepare and submit a
post-installation report to the agency (Attachment J-10), which should
verify that installed ECMs demonstrate the expected annual energy,
water, and related cost savings specified in the awarded TO.\" **[Thanks
for the comment. We will consider making the change.]{.underline}**

\"C.4.6 D Indicates that annual M&V Report shall be reviewed and
accepted in writing by the Agency, but does not provide timeline. In
some cases, acceptance of the annual M&V Report triggers the Performance
Period Payments, suggest appending to paragraph \"The Agency review and
acceptance procedure and timeline shall be specified in the TO.\"\"
**[Thanks for the comment. We will consider making the
change.]{.underline}**

\"C.4.6 D. - Recommended Text: Inspections and measurements conducted by
the contractor for this annual M&V report shall be witnessed by the
agency in accordance with FEMP's "Guide to Government Witnessing and
Review of Post-Installation and Annual M&V Activities. Recommended Text:
The annual M&V report shall be reviewed, as recommended in FEMP's
"Reviewing Performance Reports for Federal ESPC Projects," and accepted,
in writing, by the agency.\" **[Thanks for the comment. We will consider
making the change.]{.underline}**

\"C.5.1 B Indicates that Design and Construction package shall be
reviewed and approved by the Agency, but does not provide timeline.
Suggest re-wording as follows: The design and construction package due
date and Agency review and acceptance procedure and timeline shall be
specified in the TO.\"\" **[Thanks for the comment. We will consider
making the change.]{.underline}**

\"C.5.1 C.1 - The ESCO will provide the design and specs; however most
of the time the equipment has not been selected at the time of drawing
completion. Specs will identify "or equal" substitutes for equipment.
This should be changed to read "Major Equipment literature is selected
at design completion".\" **[Thanks for the comment. Equipment should be
identified by the time the drawings are completed.]{.underline}**

\"C.5.1.A - Please include language to clearly state the intent.\"
**[Thanks for the comment. We will consider making the
change.]{.underline}**

\"C.5.1.C: Design documents require preliminary and final review by
agency.\
Recommend establishing time lines for the reviews. **[Thanks for the
comment. We will consider making the change.]{.underline}**

C.5.2.C: Decision on conflicting codes settled by CO and applicable
authority.\
Recommend establishing process and time lines for the decisions.\"
**[Thanks for the comment. We will consider making the
change.]{.underline}**

\"C.5.1.(A) - Please clarify method for determining adequacy\" **[Thanks
for the comment. We will consider making the change to clarify our
intent.]{.underline}**

\"C.5.2 A Design and construction standards often conflict. Suggest
appending to first sentence, \"and order of precedence.\"\" **[Thanks
for the comment. We will consider making the change to clarify our
intent.]{.underline}**

\"C.5.4.(C) - With the removal of this language, what will constitute
the acceptance of our achievement of facility performance requirements
by the agency?\" **[Thanks for the comment. Acceptance of the
commissioning report will constitute acceptance of facility performance
requirements. See E.3.2.A.2]{.underline}**

\"C.5.5 B. - We have always been given notice by the facility of an
upcoming Envir. Protection inspection. We suggest the contract require
24 hour notice.\" **[Thanks for the comment. We will consider making the
change to clarify our intent.]{.underline}**

\"C.5.5.B: Language re creating nuisance. These words are rather generic
and can be interpreted too broadly. **[Thanks for the comment. We will
consider making the change.]{.underline}**

C.5.5.C: The contractor shall prepare at its expense all documentation
necessary to acquire permits to comply with all applicable Federal,
State and local requirements prior to implementing affected ECMs in the
performance of a TO. The contractor shall not receive a notice to
proceed with installation from the agency until all environmental
protection requirements contained in this master IDIQ contract and the
TO have been satisfied. As written could negatively impact individual TO
project(s) cost and schedule. Recommend revising language to permit more
flexibility: Add the following to the end of the last sentence: \". . .
have been satisfied, except where such NTP is consistent with the
requirements of a pending permit.\" \[Some permits and some states allow
certain activities to occur (e.g. clearing a site, pouring foundations,
etc.) while the permit is pending, but forbid other activities (e.g.
installing major equipment or starting up the equipment) until the final
permit is issued.\]\" **[Thanks for the comment. We will consider making
the change.]{.underline}**

\"C.6.1 - If the government operates installed ECMs, they are
accountable for following procedures as outlined in the TO.\" **[Section
C.6.3 acknowledges that the Government will operate the ECM in
accordance with the contractor-provided operations work
procedures.]{.underline}**

\"C.6.1 - Specify \"during term of contract\". The implication of the
language used is that the contractor will be responsible forever.\"
**[The contractor is responsible only for the operation of the ECMS for
the term of the TO.]{.underline}**

\"C.6.1 Operation of ECMS This section makes the contractor responsible
for all operations regardless of who is actually operating the installed
ECMs. The FPCC suggests you delete the last sentence of this paragraph.
The government, if they operate the installed ECMS, are accountable for
following the procedures as outlined in the TO. This section also
conflicts with J.8.3.b, which says responsibility for operations is
negotiable, which we believe is the correct approach.\" **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.We
are considering adjusting J-8.3.b to be in alignment with
C.6.1.]{.underline}**

\"C.6.1 Regardless of who performs the operations, the contractor shall
be responsible for the operations of all ECMs. Contractor cannot be
responsible for operations if Government is performing the work. Please
delete this sentence.\" **[Under the applicable ESPC statute, the
Government is neither allowed nor required to undertake the risk of ECM
repairs or maintenance. Rather, that responsibility lies with the
contractor. See 42 U.S.C. § 8287(a)(2)(A). In addition, because the
contractor is responsible for the level of guaranteed savings, the
contractor bears the ultimate responsibility for the proper repair,
maintenance and operations of the equipment installed. Although
*responsibility* for repair, maintenance or operations remains with the
contractor, *performance* of these activities may be undertaken by
either the contractor or agency, as negotiated. Where the agency
performs the activities, the contractor is required to provide adequate
work requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

\"C.6.3 O&M Dispute Resolution This section of the draft gives the
government the ability to "walk away" from damage to the contractor
specifically caused by the government's operation of the ECMs, thereby
voiding normal contractor dispute remedies (language is MAY give due
consideration). FPCC advocates that this be changed to WILL compensate
the Contractor for the losses directly attributable to that action
(revert to language in existing contract). This section also conflicts
with J.8, which says responsibility is negotiable. C.7.3 Preventative
Maintenance Dispute Resolution This section of the draft gives the
government the ability to "walk" away from damage to the contractor
specifically caused by the government's preventative maintenance work,
thereby voiding normal contractor dispute remedies (language is MAY give
due consideration). The FPCC advocates that this be changed to WILL
compensate the Contractor for the losses directly attributable to that
action (revert to language in existing contract). C.8.3 Equipment
Failure Dispute Resolution This section of the draft gives the
government the ability to "walk" away from damage to the contractor
specifically caused by the government's assumption of repair of ECMs,
thereby voiding normal contractor dispute remedies (language is MAY give
due consideration). The FPCC advocates that this be changed to WILL
compensate the Contractor for the losses directly attributable to that
action (revert to language in existing contract). This language also
conflicts with J.8, which says responsibility is negotiable.\" **[Under
the applicable ESPC statute, the Government is neither allowed nor
required to undertake the risk of ECM repairs or maintenance. Rather,
that responsibility lies with the contractor. See 42 U.S.C. §
8287(a)(2)(A). In addition, because the contractor is responsible for
the level of guaranteed savings, the contractor bears the ultimate
responsibility for the proper repair, maintenance and operations of the
equipment installed. Although *responsibility* for repair, maintenance
or operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"C.6.3 Provides for Agency performing ECM Operations, but in the event
that Gov\'t materially fails to do so in accordance with Contractor
instructions and the Contractor is harmed, this paragraph specifies that
Gov\'t MAY give due consideration to Contractor for loss. Not equitable.
Suggest changing MAY to SHALL in last sentence.\" **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"C.7.1 This section says "The Contractor shall be responsible for
preventive maintenance of all installed ECMs." This does not seem to be
strictly true, because the agency and ESCO negotiate O&M and R&R
responsibilities, as recorded in the Risk/Responsibility Matrix
(Attachment J-8). Para. C.8.1 states it more clearly in regard to
repair: responsibility is ESCO's but may be delegated to agency.
Language should be consistent and clear. If the contractor is strictly,
ultimately responsible for O&M, etc., then what does that mean, if the
agency can actually take that responsibility itself? C.7.2 -- Suggest
that the contractor also be required to include the frequency for the
completion of said preventive maintenance actions.\" **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

**[Regarding c.7.2, frequency is included in the preventive maintenance
requirements.]{.underline}**

\"C.7.1 The contractor shall be responsible for preventative maintenance
of all ECMs. Contractor cannot be responsible for preventative
maintenance if Government is performing the work. Please delete this
sentence.\" **[Under the applicable ESPC statute, the Government is
neither allowed nor required to undertake the risk of ECM repairs or
maintenance. Rather, that responsibility lies with the contractor. See
42 U.S.C. § 8287(a)(2)(A). In addition, because the contractor is
responsible for the level of guaranteed savings, the contractor bears
the ultimate responsibility for the proper repair, maintenance and
operations of the equipment installed. Although *responsibility* for
repair, maintenance or operations remains with the contractor,
*performance* of these activities may be undertaken by either the
contractor or agency, as negotiated. Where the agency performs the
activities, the contractor is required to provide adequate work
requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

\"C.7.3 - Please define periodic\" **[Thanks for the comment. We will
consider defining "periodic".]{.underline}**

\"C.7.3 Provides for Agency to perform preventative maintenance, but in
the event that Gov\'t materially fails to do so in accordance with
Contractor instructions and the Contractor is harmed, this paragraph
specifies that Gov\'t MAY give due consideration to Contractor for loss.
This is not equitable. Please change MAY to SHALL in last sentence.\"
**[Under the applicable ESPC statute, the Government is neither allowed
nor required to undertake the risk of ECM repairs or maintenance.
Rather, that responsibility lies with the contractor. See 42 U.S.C. §
8287(a)(2)(A). In addition, because the contractor is responsible for
the level of guaranteed savings, the contractor bears the ultimate
responsibility for the proper repair, maintenance and operations of the
equipment installed. Although *responsibility* for repair, maintenance
or operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

C.8.1 The contractor shall be responsible for repair of all ECMs.
Contractor cannot be responsible for repair if Government is performing
the work. Please delete this sentence.\" **[Thanks for the
comment.]{.underline}** **[Under the applicable ESPC statute, the
Government is neither allowed nor required to undertake the risk of ECM
repairs or maintenance. Rather, that responsibility lies with the
contractor. See 42 U.S.C. § 8287(a)(2)(A). In addition, because the
contractor is responsible for the level of guaranteed savings, the
contractor bears the ultimate responsibility for the proper repair,
maintenance and operations of the equipment installed. Although
*responsibility* for repair, maintenance or operations remains with the
contractor, *performance* of these activities may be undertaken by
either the contractor or agency, as negotiated. Where the agency
performs the activities, the contractor is required to provide adequate
work requirements, work procedures, and checklists, and conduct periodic
inspections, to ensure the activities are performed as necessary to
achieve the guaranteed savings. The contractor therefore bears the
ultimate risk regardless of which party performs the activity and all
payments to the contractor must be made from energy savings. If the
contractor believes that the agency has failed to perform repair,
maintenance or operation activities in compliance with
contractor-provided work procedures, and ECM performance is adversely
affected, the contractor should promptly notify the DOE Contracting
Officer and request an equitable adjustment under the Changes Clause
(FAR 52.243-1) of this master IDIQ. We are considering adjustments to
J-8.3 to be in alignment with C.6.3, C.7.3, and C.8.3.]{.underline}**

\"C.8.3 - Revert to previous language said that \"...the Government will
compensate the Contractor for the losses directly attributable to that
action.\"\" **[Thanks for the comment.]{.underline}** **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"C.8.3 A. Provides for Agency performing repair, but in the event that
Gov\'t materially fails to do so and the Contractor is harmed, this
paragraph specifies that Gov\'t MAY give due consideration to Contractor
for loss. This is not equitable. Please change MAY to SHALL in last
sentence.\" **[Thanks for the comment.]{.underline}** **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"C.8.3 B. Provides for Gov\'t to perform perform repairs if Contractor
fails to do so, and for Contractor to reimburse Gov\'t for losses
attributable to Contractor\'s failure or negligence. Suggest adding
provision stating that equipment may be repaired or replaced at Agency
expense only after providing Notice to Contractor and Contractor failure
to perform.\" **[We are considering clarifying language to address your
comment.]{.underline}**

\"C.9.2 Defines Emergency maintenance and repair work to include an
existing or imminent failure to meet Facility Performance Requirements
of ECMs... Please delete this portion of the definition. Failure to meet
Facility Performance Requirements of ECMs is not an \"Emergency\".\"
**[In certain situations (i.e. mission critical facilities), failure to
meet facility performance requirements can indeed be deemed as emergency
situations.]{.underline}**

\"ENERGY EFFICIENCY & RENEWABLE ENERGY (EERE) AND WATER PROJECT
FINANCIAL AND TAX INCENTIVES 1) Entire section, C.12.1 through C.12.5
puts entire responsibility for this on the contractor by the use of the
word \"shall\" throughout. Recommend changing language throughout to
\"the agency and the contractor will mutually determine / consider /
etc...\" 2) The Contractor cannot guarantee the future applicability
and/or availability of financial and tax incentives. In each section,
the contract reads, \"The contractor shall provide the value of the
incentives / credits / etc....\" Is this current value, estimated future
value? Should the incentives/credits considered in Section C.12 be only
in excess of the savings required to make the Government\'s TO payments?
Or, if included in savings atream and incentives/credits are less than
contemplated in the TO Schedules delivered at TO Award, contract must be
modified? If incentives/credits are more than contemplated in TO
Schedules delivered at TO Award, all net savings to Gov\'t? Reduce
Government\'s payment? Split with contractor? Depends on who owns
incentive/how cash flows. Recommend to be specified in TO Award.\"
**[Thanks for the comments. 1) We will consider making the change 2)
Estimated future value 3) Incentives/credits should be considered and
applied to the TO to reduce the TO contract term.]{.underline}**

\"ENERGY EFFICIENCY & RENEWABLE ENERGY (EERE) AND WATER PROJECT
FINANCIAL AND TAX INCENTIVES Appropriate response times so that the
contractor is not at risk and the financials are not going to be
disrupted if the program is no longer available due to the delay in
government acceptance, need to be added.\" **[Thanks for the comment.
The master IDIQ contract doesn't prohibit response times for agency or
contractor to be specified in the TO.]{.underline}**

\"Escrow accounts should not be allowed to hold "incentives" for the
contractor.\" **[Thanks for the comments. We will consider making the
changes.]{.underline}**

\"If the Government materially fails to operate an ECM pursuant to the
operations work procedures, and the performance of the installed ECMs is
adversely affected (including manufacturer equipment warranties), then
the Government may give due consideration to the contractor for losses
directly attributable to that material failure. Revise to \"If the
Government materially fails to operate an ECM..., then the Government
will either (a) allow the Contractor to step in and perform the required
operations in a manner such that the performance of the installed ECMs
is restored to its specified level of performance to achieve sufficient
savings to make the Government\'s scheduled payment and will compensate
the Contractor at the Contractor\'s cost plus the applicable performance
period markup for performing such required operations or (b) hold the
Contractor harmless for insufficient savings resulting from the
Government\'s failure to perform the required operations.\" **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"In the second sentence, delete the phrase, "as agreed to between the
agency and the contractor." The standards of service for a facility are
theirs and theirs alone. The contractor should not be allowed to
influence these requirements as this Section provides "teeth" to the
contract during the performance period.\" **[Thanks for the comments. We
will consider making the changes.]{.underline}**

\"Isn\'t the term \"White Tags\" trademarked or proprietary to Sterling
Planet? Recommend the paragraph either be deleted or reworded to
eliminate directing contractors to work with a specific company
(Sterling Planet).\" **[Thanks for the comments. We will consider making
the changes.]{.underline}**

\"It is not clear what "records of inspections" actually means. In the
situation where the agency is performing the day to day operations
activities, are the "records of inspections" the logs that the agency
completes during the course of the day or are they the logs that the
contractor completes when they perform their annual oversight
inspection?\" **[Thank you for the comment. We are considering
clarifying language to address your comment. All of those items
mentioned will be records of inspection.]{.underline}**

\"Item A -- Change "registered engineer" to "registered professional
engineer in the state where the work is being performed."\" **[Thanks
for the comments. We will consider making the changes.]{.underline}**

\"Language re penalties assessed on oils spills, HazMats, etc. Should
allow for imposition of fines only after all appeals and final
adjudication.\" **[Thanks for the comments. We will consider making the
changes.]{.underline}**

\"Operations work effort for installed ECMs shall include operations
tasks at specific stations, continuous or periodic equipment monitoring,
and minor on-line equipment adjustments required to achieve all facility
and energy conservation performance requirements of the TO. Regardless
of who performs the operations, the contractor shall be responsible for
the operations of all installed ECMs. 1) Recommend adding cure language.
Agency must be accountable for operating in accordance with TO and
regulatory requirements. As written this appears to conflict with C.6.3.
2) As written, this conflicts with J-8, 3.b. Operations:
\"Responsibility for operations is negotiable, and it can impact
performance. Clarify responsibility for performing equipment operations,
the implications of equipment control, how changes in operating
procedures will be handled, and how proper operations will be assured.\"
Recommend re-writing C.6.1 to reflect ability to negotiate
responsibility.\" **[Although this does not specify what cure language
would be appropriate, in instances where, under C.6.3, the contractor
determines through its periodic inspections that corrective action is
necessary, the agency and contractor may include negotiated cure
language in the TO. We are considering adjusting J-8.3.b to be in
alignment with C.6.1.]{.underline}**

\"Prior to installation of ECMs, the agency should witness measurements
and review calculations, records (e.g., utility bills) and other
elements of the baseline, to confirm its accuracy and to confirm that
methods are consistent with the approved M&V plan, as described in
FEMP's \"Guide to Government Witnessing and Review of Post-Installation
and Annual M&V Activities.\" Add Text: \"Prior to the installation of
ECMs, to the extent that no cost or schedule impact is imposed on the
contractor, the agency should witness...\"\" **[Thanks for the comments.
We will consider making the changes.]{.underline}**

\"Question: Sec C.4.6.B, C, D - The agency should witness measurements
and review calculations, records ... in accordance with FEMP's \"Guide
to Government Witnessing and Review of Post-Installation and Annual M&V
Activities. Please clarify if there is any contractor responsibility in
making this happen? There is a potential for this requirement to add to
project development time. Recommendation: Suggest adding time deadline
for Government witness of Measurements or add language stating that
\"witnessing of measurements must be completed in a timely manner\"\"
**[Thanks for the comment. The contractor should continue to communicate
with the agency. We will consider making the change.]{.underline}**

\"Question: Sec.C.8.4 - The escrow account allowed in this section needs
additional clarification and explanation. Will the Government provide
the funds from the various internal budgets (i.e. utility and O&M) that
are seeing the excess savings to pay to the Contractor to hold in an
escrow account? or is DOE intending for the additional savings to come
from reduced O&M/R&R expenses the contractor has control over during the
performance period phase of the project? What is meant by \"\...shall be
in accord with Federal fiscal law\"? Could this be further defined in
the contract? Recommendation: Please clarify what and how DOE intends
for agencies and contractors to use an escrow account.\" **[Thank you
for your comment. We are considering clarifying language to address your
comment.]{.underline}**

\"Salvage This should be clarified to read all government material, as
the scrap materials of the contractor are not yet government property.\"
**[Thanks for the comment. We will consider making the
change.]{.underline}**

\"Suggest beginning sentence with \"If applicable.\"\" **[Thanks for the
comment. We will consider making the change.]{.underline}**

\"The agency recognizes that nongovernmental ownership...... 1) Consider
including a statement that the \"agency CO has broad discretion under
this IDIQ contract\" **[Thanks for the comment. We will consider making
the change.]{.underline}** 2) Tax incentives may also include sales
and/or property tax exemptions in addition to PTCs and MACRS accelerated
depreciation benefit.\" **[Thanks for the comment.]{.underline}**

\"The agency shall notify the contractor when agency projects are to be
implemented that may impact the installation or operations of
contractor-installed ECMs. If the agency project affects annual energy
savings, then the agency will determine whether to adjust the savings
calculation methodology in the M&V plan, or negotiate a baseline
adjustment, or implement some other corrective methodology. Recommend
changing \"agency shall notify the contractor...\" to, \"agency shall
provide no less than 30 days prior notification to the contractor...\"
Recommend changing \"the agency will determine whether to adjust...\"
to, \"the agency and the contractor will mutually determine whether to
adjust...\"\" **[Thanks for the comment. We will consider making the
change.]{.underline}**

\"The agency will furnish water and electric current at existing outlets
as may be required for the installation work to be performed under a TO
at a cost mutually agreed to by the contractor and the agency. Suggest
revising to, \"The agency will furnish waste lines, water and electric
current at existing outlets as may be required for the installation work
to be performed under a TO at no cost to the contractor.\"\" **[Thanks
for the comment. We will consider making the change.]{.underline}**

\"The contractor shall assure the agency through the ECM Commissioning
that the ECMs performance achieves facility performance requirements as
set out in the TO. The ECM Commissioning shall be accomplished through a
process of verification and documentation, from the post-award design
phase to acceptance, in accordance with Attachment TBD. We reserve the
right to review any as yet \"TBD\" Commissioning procedure. What shall
constitute Government acceptance and acknowledgement that that the ECMs
performance achieves facility performance requirements as set out in the
TO?\" **[Thanks for the comment. Acceptance of the commissioning report
will constitute acceptance of facility performance requirements. See
E.3.2.A.2]{.underline}**

\"The contractor shall remove from the site any individual whose
continued employment is deemed by the agency to be contrary to the
public interest or inconsistent with the best interests of agency
business or national security. Add Text: \"\...any individual whose
continued employment is reasonably deemed by the agency...\"\" **[Thanks
for the comment. We will consider making the change.]{.underline}**

\"The cost of an energy savings performance contract (ESPC) TO project
(hereafter referred to as TO project) must be covered by the reduced
energy, water, and related cost savings incurred at the Federal
facility. This language seems to prohibit the ability of an agency to
buy-down a project with available funds at award or full project
acceptance.\" **[Agencies have the ability to "buy down," however, the
payments can't exceed the energy, water or related O&M savings for that
year. See DOE-FEMP Guidelines Regarding One-Time Payments and One-Time
Savings In Energy Savings Performance Contracts.]{.underline}**

\"The indemnity provision re the contractor reimbursing the agency if
the agency feels the contractor failed to respond in a timely manner to
an emergency. 1) As the definition includes safety and health of the
facility and occupants, this is a very broad indemnity and has the
potential for abuse. 2) This would only apply in the case that the
Contractor is performing O&M and R/R. If the Government is performing
O&M and R/R, Contractor would not have to reimburse agency for
responding to emergencies.\" **[Thank you for your comment. It appears
to reflect the terms of C.9.3.]{.underline}**

\"The sentence states \"Regardless of who performs the operations, the
contractor shall be responsible for the operations of all installed
ECMs.\" Are you saying if the Government or a different Government
contractor operates the ECMs, the ESCO contractor is still
\"responsible\" for the operations? If so, please define what the
ESCO\'s responsibility is. Clause C.6.3 eludes to what this might be but
a clarification would be appreciated. Thank you.\" **[Under the
applicable ESPC statute, the Government is neither allowed nor required
to undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"What about in the case where damage to the ECM is not by the
Government or by the contractor? What if it is an \"act of God\" or
damage by a third party. Is the contractor on the hook to perform the
repair with no additonal compensation? Thank you.\" The contractor must
guarantee savings and thus has the responsibility for achieving that.
**[Under the applicable ESPC statute, the Government is neither allowed
nor required to undertake the risk of ECM repairs or maintenance.
Rather, that responsibility lies with the contractor. See 42 U.S.C. §
8287(a)(2)(A). In addition, because the contractor is responsible for
the level of guaranteed savings, the contractor bears the ultimate
responsibility for the proper repair, maintenance and operations of the
equipment installed. Although *responsibility* for repair, maintenance
or operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"Why is this clause in the \"Repair of ECMs\" section? It has nothing
to do with ECM repair. Is it out of place? Is there something missing
that is supposed to go with this? Thank you.\" **[Thanks for the
comment. We will consider making the change to clarify.]{.underline}**

\"\"all Federal Buildings\" is not defined. Suggest explicitly stating
that contract is applicable to all Federal Buildings WORLDWIDE to avoid
ambiguity.\" **[Thanks for the comment. We will consider making the
change.]{.underline}**

\"\"ECMs include measures to increase energy efficiency of
energy-consuming systems, reduce water consumption, and generate
electrical or thermal energy.\" Add Text: \"ECMs include measures to
increase energy efficiency of energy-consuming systems, reduce water
consumption, improve the efficiency of energy production systems and
generate electrical or thermal energy.\"\" **[Thanks for the comment. We
will consider making the change.]{.underline}**

\"\"Where such factors beyond the contractor's control potentially
exist, the agency and contractor should agree on what measures should be
taken to adjust the baseline, modify savings calculations or otherwise
account for such factors.\" Recommend changing to, \"Where such factors
beyond the contractor's control potentially exist, and have a negative
impact on meeting the guarantee, the agency and contractor shall agree
on what measures shall be taken to adjust the baseline, modify savings
calculations or otherwise account for such factors.\"\" **[Thanks for
the comment. We will consider making the change.]{.underline}**

**Section D**

> \"All leased equipment, accessories, and devices....... Does this
> provision relate to contractor installed equipment only? Should the
> Government have fair market purchase option instead of removal?\"
> **[Thanks for the questions. The leased equipment is referring to
> contractor equipment. We will consider clarifying this
> clause.]{.underline}**
>
> \"D.4 Equipment Removal - addresses leased equipment. Why is this
> provision included and what is it intended to address?\" **[Thanks for
> the comment and question. Leased equipment is referring to contractor
> equipment.]{.underline}**

**Section E**

\"Comment: Sections: E.2.2, E.2.3, E.3.1 and E.3.2 - as a follow on to
the previous comment, the proposed contract has new requirements for
contractor notification to the Government \"in advance of ECM
installation completion..\" and the \"Agency shall provide written
notification to the contractor of scheduled date and time for agency
inspection within 10 working days\...\". Sec.E.3.1 allows for partial
acceptance and payment before final acceptance. Sec. 3.2 describes the
requirements for Full Project Acceptance. Although we are supportive of
these changes, which allow flexibility, we suggest additional
clarification and explanation be provided in the contract.
Recommendation: Recommendation is for DOE to provide a standardized
project acceptance document that could be included as another
attachment. This is important because it provides the ESCo and
Government standardized documentation of the project acceptance. Note:
the process was more clearly defined in Sec. E.4. of the current
contract. We also recommend the flexibility to allow for submittal of
the Post M&V report after acceptance in situations were needed.\"
**[Thanks for the comments. We will consider making the
change.]{.underline}**

\"E.3.1 -- Suggest that agency payments to the contractor during the
implementation period be optional and the section be revised for clarity
as follows:\
E.3.1 Partial Project Acceptance -- The agency may agree to accept
ECM(s) that are installed and operational prior to completion of the
Implementation Period. If the agency accepts installed ECM(s) before the
end of the Implementation Period, it may pay the contractor, prior to
full project acceptance, in amounts and frequency proposed in Schedule
TO-1 (Final), column (c), and agreed to by the agency. Before the agency
makes such payments, inspection and testing of ECM(s) to verify
guaranteed cost savings during the remaining Implementation Period will
be conducted and documented by the contractor and submitted to the
agency for acceptance. \...\" **[Thanks for the comments. We will
consider making the changes.]{.underline}**

\"E.3.1 Not clear if these partial project payments are only for a)
Savings During Construction, or b) starting the debt service early. a)
SDC is straightforward, b) partial debt service is complicated but might
be worth it on very large ECM\'s completed early Clarify that source of
partial payments could be one of two components, or both (if that was
the intent) E.3.2. Requiring the items listed in A prior to starting the
performance period will add at least a month to the construction
financing and these items are now submitted after acceptance. Modify
submittal date as in current IDIQ. E.3.2.A.1 Conflict between Attachment
E.3.2 and Section J-5 regarding the requirements for acceptance.
Attachment E.3.2 states that the Post-Installation Reports and
Commissioning Reports must be submitted and approved prior to Final
Acceptance by the Government. Attachment J-5 states that the
Post-Installation Report can be submitted 30-60 days after Final
Acceptance. The timeframe proposed in Attachment E.3.2 would require the
ESCO to carry construction interest charges on the full cost of the
project for an unknown period of time. Revise Attachment E to be
consistent with the Attachment J. E.3.2.B States that the review periods
for final acceptance shall be mutually agreed. When we put together
financials for construction finance, we assume a certain time period for
review. If this time period isn\'t agreed at the time of award, we could
be liable for substantial interest payments if delays occur Suggest that
the review periods be defined in the DO RFP, agreed to in the IGA and be
made part of the delivery order award.\" **[Thanks for the comments.
Partial project payments are for savings achieved during the
implementation (construction) period to reduce the total amount
financed, not for partial debt service.]{.underline}**

\"E.3.1: The agency may agree to accept ECM(s) installed and operational
prior to completion of the Implementation Period. If the agency accepts
partial project installed ECM(s), it will pay the contractor, prior to
full project acceptance, in amounts and frequency proposed in Schedule
TO-1 (Final), column (c), and agreed to by the agency. This appears to
conflict with J-7, TO-1 which indicates only a single Performance Period
payment. Recommend revising TO-1 to permit multiple Performance Period
payments. E.3.2: Full Project Acceptance The list of requirements is
stacked in the favor of the government and needs to be tightly
controlled in the TO. The Schedule should also include timelines for the
Government\'s response on turnarounds for their obligations as well.\"
**[Thanks for the comments. We will consider making the change to
clarify our intent.]{.underline}**

\"E.3.2 A. - This information is per the equipment manufacturers and is
included in the delivery of the O&Ms. No additional documentation is
typically generated by the Contractor.\" **[Thanks for the comment. We
will consider making the change.]{.underline}**

\"E.3.2 B. Addresses Full Project Acceptance. Suggest adding \"and
specify in the TO\" between \"agree\" and \"the\"\" **[Thanks for the
comment. We will consider making the change.]{.underline}**

\"Issue: There are conflicts in the Draft RFP document. Subject
paragraph requires the Post-installation Report prior to government
acceptance; whereas, Attachment J.5, Item 16 requires the same report 30
to 60 after acceptance. Recommendation: Revise contract language so the
report is 30 to 60 days after acceptance; otherwise, it delays start of
payments even though work is completed and inspected.\" **[Thanks for
the comments. We will consider making the change to clarify J.5 to
indicate the intent to have the Post Installation report prior to
acceptance.]{.underline}**

\"Sec.E.2 - INSPECTION OF INSTALLED ECMs - It appears DOE has removed
the current contract requirement of the 30 day performance period after
project acceptance. Please confirm this was intended. Will DOE update
it\'s corresponding \"Super ESPC Delivery Order Guidelines\" to reflect
this change? This will insure consistent expectations by agencies/sites
using the new contract.\" **[Thanks for the comments. Actually, the
current contract states that project acceptance will occur after the 30
day test period, not before. Yes, DOE intends to revise and issue TO
guidelines.]{.underline}**

\"E.3.1 Clarification request: On Schedule TO-1 it states that
implementation period allowable payments are one-time amounts only.\"
**[That is correct. Please see DOE-FEMP Guidelines Regarding One-Time
Payments.]{.underline}**

**Section F**

\"Concern: Title of section is \"Period of Performance\" but it should
be Ordering Period. Recommendation: Revise title of this section to read
\"Ordering Period\" and clarify as meaning the time period during which
TO awards may be made; not the Performance Period associated with each
TO.\" **[Thank you for the comment. We will consider making the
change.]{.underline}**

\"F.2: PERIOD OF PERFORMANCE\
Add language to permit adjusting POP dates in the event contract award
is delayed. **[Thank you for the comment. We will consider making the
change.]{.underline}**

F.5: PLACE OF PERFORMANCE\
Some renewable equipment may be located off-site (i.e., at the site of
the renewable source or in between the site of the renewable source and
the agency site). Recommend \"Principal place of performance is the
agency\'s facility.\"\" **[Thank you for the comment. We will consider
making the change.]{.underline}**

\"F.3 ....for a term up to and including twenty-five years Please define
term. **[Term means length of time from the date that the task order is
issued until the date that the task order ends.]{.underline}** Does term
include the construction period and post acceptance performance period
or is it just the post acceptance performance period? **[Term means
length of time from the date that the task order is issued until the
date that the task order ends.]{.underline}** We suggest it be the post
acceptance performance period to maximize the time allowed to repay
renewable ECMs, and will allow or larger more complex projects.
F.6.2.B.4 Typo - Commission Report This should be "Commissioning
Report".\" **[Thanks for the comments. We will consider making the
change.]{.underline}**

\"F.6.2.B, G.1, G.6 Concern: Several different position titles are used
throughout the document without consistency or definitions. Referenced
paragraph says send deliverables to DOE Project Manager; however, the
title DOE Project Manager is not used in Attachment J.5, Distribution
List of contract documents. Recommendation: Clarify by including all
position titles DOE Project Manager, COR, Project Financing Specialist,
PF, etc.) in the glossary of terms. If all the multiple titles represent
the same, or only a few positions then reconcile the conflicts by
revising the contract language.\" **[Thank you for the comments. We will
consider making the changes.]{.underline}**

\"F.6.2.B.4 -- Should be "Commissioning Report." **[Thank you for your
comment. We will consider making a change.]{.underline}**\
F.6.2.B.5 -- "Annual M&V reports (also known as Annual Energy Audit
report)" --- Why are we introducing a new and alternative term for
Annual M&V Reports? We suggest avoiding confusion and deleting this
alternative term[.\" **Thanks for the comment. The term "annual energy
audit" is used because that it is terminology used in the authorizing
statute. See 42 USC Section 8287.**]{.underline}

**Section G**

\"1) \"The contractor shall submit invoices in accordance with the
specific instructions provided in each TO issued against this master
IDIQ contract. These instructions will vary by ordering agency...\"
Suggest adding language directing Agency to notify contractor within 15
days of receipt of invoice if (any portion of) payment is to be
withheld, delayed or disputed. 2) The NOTE is pretty clear that COR is a
DOE requirement. Concern is with the wording that implies \"other
agencies\" must have someone identified with the title of COR, and how
would the agency COR (assuming they don\'t simply defer to the DOE)
interface with the PF? Recommend that DOE reconcile all the different
titles/positions with one set of titles that is applicable to all
agencies.\" **[Thanks for the comments. The Prompt Payment Clause in
section I already requires the agency to notify the contractor when an
invoice is rejected and for what purpose.]{.underline}**

\"G.2 -- Consider adding point of contact information for the ordering
agency contracting officer, contracting specialist, and contracting
officer's representative. While not critical for the master
solicitation, the contract needs a placeholder for each TO (edited via
TO RFP). **[Thanks for the comment. It is not appropriate to identify
the current or future agency contracting officer, contract specialist,
or COR in the master IDIQ contract. We will consider a "place holder" in
the TO RFP.]{.underline}**

G.4.2 -- The parenthetical phrase ending 6.4.2 is confusing, and seems
to imply that paying for the ESPC in arrears is preferred, which only
adds interest costs. Perhaps it should it be "(preferably paying debt
service only in advance, and performance-period-services payments in
arrears or annually in arrears)." **[Thanks for the comment. We will
consider making the change.]{.underline}**

G.6 -- If this section just applies to DOE, it would be helpful to make
that more clear, e.g.: "NOTE: Specific requirements ...for task orders
(TO) issued by agencies other than DOE will be ..." **[The intent is
that this clause be for DOE CORs and that agencies will have a different
clause.]{.underline}**

G.6(a) -- Suggest this wording: "Performance of the work under this
contract for DOE sites shall be ..." **[Thanks for the comment. We will
consider making the change.]{.underline}**\
G.6 -- Reference is made to the DOE Contracting Officer's
Representative. However, in Section G.1, there was no identification of
such a person.\" **[A COR will be designated in section G.1 in the
resulting master IDIQ contract.]{.underline}**

\"G.2 Some agencies have specifically requested that the contract
specifically allow for quantity reconciliation for ECMs like lighting,
steam traps, water Add in the allowance to true changes in quantity on
ECMs such as but not limited to lighting, steam traps and water
**[Thanks for the comment. We will consider making the
change.]{.underline}**

G.2.2. \"Tend to be\" is too vague to be useful delete \" and tend to
be\" **[Thanks for the comment. We will consider making the
change.]{.underline}**

G.3 Invoices are often sent directly electronically to individuals who
are not responsible for review of annual M&V reports. Attaching this
material will probably cause substantial confusion in the federal
billing system. Remove last sentence and decouple invoicing and Annual
M&V report requirement. **[Thanks for the comment. We will consider
making the change.]{.underline}**

G.4.1 Language concerning payments is directed towards payments after
complete acceptance. Should clarify that pre-payments are acceptable
Should add in \"when partial and/or full acceptance\" to the middle of
the sentence **[Thanks for the comment. We will consider making the
change.]{.underline}**

G.4.2 Annual advance payments with service phase payments in arrears
This would be an accounting hassle and impose a cost of money expense on
the contractor. Also annual in arrears is a bad option - it\'s the most
costly in terms of interest expenses. eliminate these two options
**[Thanks for the comment. We will consider making the
change.]{.underline}**

G.6.E.2 If as a result of a direction by the COR the is a contract
change, the Contracting Officer shall notify in writing that there will
be a change order. This should also provide for a contract modification
and new financial schedules to demonstrate that the change order will be
paid for. Suggest that the language also include: \"that a contract
modification incorporating revised financial schedules will be issued as
a result of the change order.\"\" **[Thanks for the comment. We will
consider making the change.]{.underline}**

G.3 - Recommend adding, \"agency must notify contractor when an invoice
is not accepted\".\" **[Thanks for the comment. We will consider making
the change.]{.underline}**

G.5 Please add \"The pro-rata adjustment to payments for the next
twelve-month Performance Period shall be documented via a bilateral TO
Modification.\"\" **[Thanks for the comment. We will consider making the
change.]{.underline}**

\"If the contractor fails to meet the annual guaranteed savings at TO-1
(final) column (e) and as verified by the M&V documents, the agency
shall adjust the payment schedule, as necessary, to recover the agency's
overpayments in the previous year and to reflect the lower performance
level into the current year. Recommend revising to permit shortfalls to
be made up for out of funds that may be available in an escrow account,
in accordance with DRFP Section C.8.4, \"\...provide for the
establishment of an escrow account by the contractor. Such an escrow
account may accumulate any excess energy, water and related cost savings
generated as a result of the TO project.\" This would be best dealt
within in a specific TO, based upon the installed equipment, not as a
generic statement.\" **[Thanks for the comment. We will consider making
the change.]{.underline}**

\"Payments to the contractor will commence when acceptance by the agency
is obtained as required under Section E. Recommend changing \"Payments
to the contractor will commence...\" to, \"Implementation Period
payments and/or TO Post-Acceptance Performance Period payments to the
contractor will commence...\"\" **[Thanks for the comment. We will
consider making the change.]{.underline}**

Question (Ref. G.3): Who is the DOE COR and what is his role? Is the DOE
COR the same position as is now called Federal Energy Project Financing
Specialist? As I read the introductory note (paragraph G.6) this
provision, as written, applies to DOE end users and other agencies that
use the contract will/may appoint their own COR; however, Attachment J-5
makes no such distinction and requires the distribution of most contract
documentation includes forwarding copies to the DOE COR. Conversely, the
RFP, in several places addresses the role of the DOE PF but J-5, as
currently written, does not include the PF on the distribution list for
any documentation. Clarification is need. Why would all agencies include
the DOE COR for contract distribution if that position is only
applicable to DOE?\"

**[The DOE COR has not yet been identified. No, the DOE COR is not the
same as the Federal Energy Proj Financing Specialist. The DOE COR should
be on the distribution list to ensure proper oversight of projects
working under this IDIQ.]{.underline}**

**Section H**

\"1) A DOE-approved project facilitator (PF) is required for the
utilization of this master IDIQ contract. The PF must be actively
engaged prior to the PA "kick-off" meeting. The PF requirement shall not
be waived by the ordering agency. What if an agency (US Navy for
example) has qualified personnel that they normally use to accomplish
these types of projects - is there the ability for DOE approval of their
personnel to qualify as a DOE-approved PF to make use of the contract?
**[Yes, the DOE EERE FEMP website contains a document titled "Project
Facilitation and Quality Assurance for Federal ESPCs," which provides an
overview of the process and can be found at]{.underline}
<http://www1.eere.energy.gov/femp/financing/superespcs_espcbasicsp1.html>[.]{.underline}**[\
]{.underline}How much authority and/or influence is a DOE-approved PF
going to have? **[PFs have no contractual authority; however, they do
have significant influence due to their vast knowledge and experience
with ESPC projects.]{.underline}**\
How much added cost will be associated with the PF\'s \"active
engagement prior to the PA kick-off\"? **[We don't know. It will vary
with each project.]{.underline}** 2) If pursued, the agency CO will
issue a Notice of Intent to Award (NOI), followed by a TO RFP which
identifies the agency's requirements. Suggest revising to, \"If pursued,
the agency CO will issue a Notice of Intent to Award (NOI) to the
contractor not less than 15 days after the PA kick-off meeting, followed
by a TO RFP not less than 30 days after the NOI, which identifies the
agency's requirements.\" **[Thank you for the comment. We will consider
making a change.]{.underline}**

\"A company\'s Reps and Certs change from time to time. On line Reps and
Certs are updated at least annually but may be revised at any time.
Recommend paragraph be revised to read: \"The Representations,
Certifications, and Other Statements of Offeror, completed by the
contractor and certified in the Online Representation and Certifications
Application (ORCA) System in effect at time of proposal submission, are
hereby incorporated by reference.\"\" **[Thank you for the comment. We
will consider making a change.]{.underline}**

\"Comment: Sec H.4.1 -- States \"....which sets out the merits,
technical feasibility, level of projected energy savings, economics and
price of the project.\" Recognizing this is a Preliminary Assessment it
may be useful to add language stating the price of the project is
estimated during this phase. Recommendation: Suggest changing language
to "estimated implementation price"\" **["Preliminary Assessment"
communicates that prices are not finally determined.]{.underline}**

\"Comment: Sec. H.4.1 - \"The agency will not be liable for any costs
associated with PA audits or preparation of the PA.\" In the current
contract, Sec. H.21 specifies \"The Government shall not be liable for
costs associated with audits and preparation of Initial Proposals,
unless the project addressed by the Initial Proposal later becomes a
delivery order award.\" We understand the IP/PA are completed at the
Contractor\'s risk; however, please clarify that PA costs can be
included in the project if the project moves forward to NOI and
subsequent award to TO. Recommendation: Suggest adding language allowing
PA costs to be included if project proceeds to TO such as \"unless the
project addressed by the PA later becomes a TO.\"\" **[Thank you for the
comment. We will consider making a change.]{.underline}**

Comment: Sec. H.5.1. - similar to our previous comment on Sec C.4.2 -
Investment grade audit (IGA) -- An investment grade audit typically
requires an in depth description of existing facilities, including
building construction history and details that have little relevance to
facility energy and water use. This information normally is not included
in a Detailed Energy Survey unless the building components are affected
by the proposed ECMs. An easy comparison is to that IGAs are typically
engineering studies while a DES is detailed energy engineering analysis,
combined with specific work requirements to install recommended ECMs.
Replacing the current DES with an IGA requirement may significantly
increase ESPC project development time and associated development costs.
Also, keeping the DES terminology would avoid agency expectation that a
change in terminology represents a broadening of scope the activity we
currently call a DES. Recommendation: Suggest DOE revert back to the DES
nomenclature and the associated definition for DES. Keeping the DES
terminology would avoid agency expectation that a change in terminology
represents a broadening of scope the activity we currently call a DES.\"
**[The definition of the IGA is as described in Attachment J-2 and as
described in section H, and is not this alternate definition proposed
here. The draft RFP requests that buildings and systems not affected be
identified, and it is intended simply that a brief summary be provided,
in order that future confusion about what is and is not covered by the
ESPC can be avoided. It is not intended to be exhaustive or to imply any
technical analysis in addition to that necessary for recommended
ECMs.]{.underline}**

\"Comment: Sec.H.6.2 - \"The agency will not be responsible for any
costs incurred, such as proposal preparation costs or the costs incurred
in conducting the IGA unless a TO is awarded.\" This is counter to
current practice and training that DOE provides on agencies for using
the ESPC contract. It also is counter to the overall ESPC approach in
any industry/market because the Contractor\'s/ESCo risk is only during
the IP/PA. Once a customer issues a letter to proceed (NOI in Federal
Government), the project costs become a shared risk assuming the
Contractor/ESCo presents a Final Proposal that meets the requirements of
the NOI. Recommendation: Suggest deleting language \"the agency will not
be responsible for any costs incurred, such as proposal prep costs or
the cost incurred in conducting IGA unless a TO is awarded.\"\" **[Thank
you for the comment. We will consider making a change.]{.underline}**

\"H.10.2 States that if TO requires different insurance coverage than
IDIQ defaults, ESCO provides at no cost for term of contract. Not sure
why this cost would not be a justified expense? Is this only if
requirements change during implementation or service phase and not
allowed to increase FFP? Please clarify and allow for adjustments to
cost. **[Thank you for your comments. We will consider making a change
to the DRFP to clarify this issue.]{.underline}** H.3.1 Requiring
agencies to compete each task order at a site will be costly, lengthy,
and not conducive to the partnership necessary for a successful program.
Agencies that are pleased with their selected contractor\'s performance
should be allowed to continue working with that contractor without
interruption. Allow for fair opportunity during the site selection
process. Each site has the right to change contractors at any time, but
requiring selection at each task order will be costly and unnecessary.
**[H.3.1 does not require competition. H.3 requires fair
opportunity/consideration or "sole source" justification (an exception
to fair opportunity)]{.underline}** H.3.1.A.1.B This language is
confusing. Is the contract intended to require the contractor to provide
a full proposal prior to selection for the site? Allow agencies to
select contractor and then perform proposal development. **[Formal
selection of an ESCO doesn't technically occur until the Task Order is
awarded.]{.underline}** H.3.1.A.1.b \"The agency CO must consider the
price proposed in the final TO schedules (TO-1 (final), TO-2, TO-3,
TO-4, and TO-5) prior to issuance of the TO.\" Don\'t understand the
significance of this statement - what does that have to do with fair
opportunity consideration at the beginning? Is it being said that TO
schedules need to be reviewed prior to the contractor identified method
selection? **[No, prior to award of a Task Order.]{.underline}** This is
not practical. Suggest deletion. H.3.1.A.1.b \"The agency CO may solicit
offers from two or more contractors.\" Define \"offer\" - it should be
less than a PA (asking multiple ESCO\'s to invest in at-risk PA\'s is
excessive. Likewise, a \"mini-competition\" should not be based on a
full site data package - that\'s too much at-risk work. Clarify that
\"offer\" simply means an offer to submit an ESPC proposal. **[This
section doesn't require an offer.]{.underline}** H.3.1.C.3 This clause
says that the Government shall not have any rights to the work product.
The next clause says that the Government can bring in another
contractor. It might be helpful if the Government were allowed to pay
for the work product and only under those conditions could that work
product be shared with the new contractor. Add a sentence that says that
the Government may compensate the contractor for the contractor\'s work
products and only after such payment could the work product be shared
with another contractor if a task order is not awarded. **[Thank you for
your comment. We will consider making a change.]{.underline}** H.4.1 PA
costs should be reimbursable if project goes forward Please clarify
intent of section **[Thank you for your comment. We will consider making
a change.]{.underline}** H.4.2.B.1 If the goal is to streamline the PA,
then eliminate details that are not critical to making decision on
whether to proceed and which ECM\'s to choose for IGA delete items d, g,
h, i - those are not critical to choosing ECM\'s so they can wait until
IGA **[The requirements and effort level entailed in the PA are not
substantially increased. The format has been prescribed in greater
detail, however, to improve ease of review. The number of schedules
required as a minimum has been reduced in the intent of streamlining.
However, other schedules and/or additional information may be required
by the agency, as noted in the draft RFP: "The contractor shall include
in its PA technical and price assessments, in a format in accordance
with agency requirements"]{.underline}**

H.4.2.B.3.b Risk Responsibility Matrix should not be required in a PA -
Its is unlikely that meaningful answers can be prepared at this stage.
M&V approach is the big risk factor, and that is already covered in B.2
above Delete from document. **[Disagree. There should be general
agreement on sharing Risk and Responsibility between the ESCO and the
agency at the PA stage, before major investment in the
IGA.]{.underline}**

H.4.2.B.3.c ECM training plan is not crucial information that is needed
at this stage to decide whether to proceed and which ECM\'s to choose
for IGA Delete from document. **[Disagree. The paragraph requires only
"Provide a general description of the training\..." This is not
onerous.]{.underline}**

H.5.3 appears to duplicate the requirements of 5.2.H Eliminate 5.3
**[H.5.2 is intended to address summary information; 5.3 is to be ECM by
ECM.]{.underline}**

H.6.2 States that contractor is not allowed \$ for any PA or IGA costs
incurred if a TO is not awarded. If the contractor provides a viable IGA
and FP and the government does not want to go ahead, the contractor
should be paid for development costs incurred during the process.
Contractor should be paid for the development costs incurred for viable
projects regardless of whether the government awards a TO. **[Thank you
for your comment. We will consider making a change.]{.underline}** H.6.2
This section only mentions IGA costs, not PA costs Add PA costs,
additionally once a NOITA is issued the government needs to be obligated
to pay the contractor should the government decide not to move forward
at no fault of the contractor. Without this there it may be tempting to
take advantage of the contractor to get audits/IGA completed.
Contractors need protection from this. **[Thank you for your comment. We
will consider making a change.]{.underline}** H.6.3.B.2a The section
describing the M&V plan requirements for Volume 1 - Technical Proposal
stated \"The M&V plan shall include an electronic version of the methods
for calculating the ECM energy savings for the agency's review and
approval.\" Clarify that this requirement refers to the proposed or
estimated savings. **[This refers to the verified
savings.]{.underline}** Revise to \"The M&V plan shall include an
electronic version of the methods for calculating the proposed or
estimated ECM energy savings for the agency's review and approval.\"
**[Thank you for your comment. We will consider making a
change.]{.underline}** H.6.3.B.2.b Reference; (See Attachment J-12 for
Commissioning Process) This is the section under development, text will
need to be removed if document is not developed and included. **[Thank
you for your comment.]{.underline}** H.6.3.B.3.c This means that
division of responsibility is located in two places: R/R matrix AND
Management Approach. This is redundant and error prone. Eliminate from
R/R Matrix (Management Approach write-up can be cross-referenced there)
**[The R/R matrix is not duplicative of the "Management
Approach".]{.underline}** **[The Final Proposal has a technical proposal
volume and price proposal volume. The technical proposal volume has
three sections 1) ECM description 2) ECM Performance Measurement and 3)
Management Approach. The Management Approach has four sections. The R/R
matrix is part of the Management Approach section, not in addition
to.]{.underline}** H.7.1 Submission of IDS to CO prior submission of
final proposal. Not sure what this is needed for and why it is called
out. Do they want to review before the contractor requests bids from the
financiers? If so, they don\'t state that we have to hold up the process
pending this review. Not sure why another check and added time is
implied here. Suggest that this section be removed. If it must stay,
then it should state that the Contractor shall not solicit bids until
the IDS is approved, and that the review shall be concluded within 3
business days. **[Requirements stated in this section are intended to
accelerate award time, by precluding financing contingencies and
confirming financing costs and therefore final task order cost. Time
limits for agency action are not appropriate for the IDIQ, but may be
negotiated between agency and contractor in the TORFP.]{.underline}**

H.7.2.A This requires that the financing offers be made in the form of
the SFO. The SFO doesn\'t leave room for adding in the various details
and qualifying information that normally accompany financier bids.
Should state \'the financing offers shall include the SFO as set out in
Attachment J-14 to this master IDIQ contract as well as any other
supporting documentation and conditions that are provided by the
financier.\" **[Thank you for your comment. We will consider making a
change. However, the DRFP does not prohibit an agency from requiring
additional detail with the financier bids.]{.underline}** H.8 Should
have specific language allowing for the waiving of the bonds as this is
a cost some may not consider of value in the ESPC arena where no
payments are made until project acceptance. Consider adding language
allowing for waiver of bonds as applicable.\" **[H.8.1 allows each
agency the flexibility to change the bonding
requirements.]{.underline}**

\"H.3.1 -- Contract no longer distinguishes between contractor selection
and award. The last sentence, "A Federal agency may select a contractor
that represents the best value to the agency using any of the following
methods:" is followed by a list of award methods. The award methods,
hence selection methods, appear to all require consideration of Final
Proposal price. Those wanting to interpret this as an additional hurdle
can easily decide to do nothing now. **[There is no additional hurdle
here. Strictly speaking an ESCO is not formally selected until a task
order is awarded. Therefore the "Final Proposal" price would be
associated with the Final Proposal stage.]{.underline}** Ordering will
be a problem with this contract as written.\
H.3.1.A.1.a -- How is this considered to be fair consideration? [**This
clause was reviewed by DOE's Legal and Policy Offices and deemed to be a
reasonable interpretation of the fair consideration standard.
Additionally, the clause states that the contract holder agrees that
this constitutes fair consideration.**[\
]{.mark}]{.underline}H.3.1.A.1.a -- Should specify DOE COR (or other, if
it's not DOE). **[Thank you for the comment. We will consider making a
change.]{.underline}**\
H.3.1.A.1.b -- Specifying that the CO "may consider past performance,
related experience, technical capabilities, use of renewable
technologies, and the use of small business concerns for subcontracting
work" leaves out some important considerations. If this just applies to
selecting an ESCO to present a Preliminary Assessment (not awarding a
TO), maybe it's ok. However, if that is the case, then specifying here
that "The agency CO must consider the price proposed" is inappropriate.
**[Please see the above comment. This question seems to be mixing the
requirements of the old ESPC IDIQ contracts with the process outlined in
this DRFP.]{.underline}** Same thing applies to H.3.1.A.2.b. **[Please
see the above comment. This question seems to be mixing the requirements
of the old ESPC IDIQ contracts with the process outlined in this
DRFP.]{.underline}**\
H.3.1.C.1 -- "conditioned" should be "conditional." **[Thanks for the
comment.]{.underline}**\
H.4.2 -- The draft RFP requires the ESCO to submit much less information
for the Preliminary Assessment than the current IDIQ requires for the
Initial Proposal, specifically financial schedules TO-2, TO-3 and TO-4
are not required. There are distinct benefits to requiring these
schedules. The draft RFP requires Schedule TO-1 (PA) and "documentation
to support the entries on the form." Including schedules TO-2, TO-3, and
TO-4 is the easiest way to concisely provide the very documentation
needed to support the entries on Schedule TO-1. Schedule TO-2 breaks
down price by ECM and Schedule TO-4 breaks down energy and cost savings
by ECM. These schedules are valuable in assessing the ESCO's
understanding of the technologies. Schedule TO-3 shows likely project
cash flow and allows the agency to see what the ESCO is thinking in
terms of performance-period services. Having the documentation submitted
in any other form will cause delays in project development, because
agencies will be forced to sort through the material provided trying to
extract the data otherwise provided in the schedules. **[Thank you for
the comments. We will consider making a change.]{.underline}** H.4.2 --
Nothing was found in the format for the contractor to report on
renewable energy opportunities.

Section H.4.1 charged the contractor with their investigation. It would
appear that they should be specifically addressed. **[As noted in the
draft RFP, at H.4.1 and elsewhere, investigation of renewable energy
opportunities is encouraged. The format provides for description and
explanation of proposed ECMs, and per section J-2, renewables are
included in the definition of ECMs.]{.underline}**\
H.2 -- Suggest adding a portion to the PA report that addresses the
approach to the performance of operations, maintenance, and repair &
replacement. **[Thank you for the comment. We will consider making a
change.]{.underline}**

H.6.2 -- This section says, "The agency will not be responsible for any
costs incurred, such as proposal preparation costs or the costs incurred
in conducting the IGA unless a TO is awarded." Allowing agencies to get
investment-grade audits without the obligation to pay for them opens the
program to widespread abuse that will raise costs for all who use the
DOE ESPC contractors. Super ESPC experience under the existing contract
has shown that agencies have been given appropriate motivation to work
in good faith with the IDIQ contractors, as is required to successfully
implement a cost-effective ESPC project. We know that some agencies will
"game" the system if they are not held responsible for IGA costs, and it
will only takes a few bad apples to skew the balance that has been
established by this program. The results will cost the government money
and work against comprehensive, high-value projects. Contractors will
not be willing to take on such a risk and will be strongly motivated to
minimize their costs for IGAs, and agencies will not get the quality of
proposals that would allow projects to smoothly and expeditiously move
to award and completion. Contractors will inevitably propose only very
conservative, safe ECMs and projects. **[Thank you for your
comment.]{.underline}** H.6.3.C.4 -- Suggest requiring the ESCO to
include all SFO's received and considered in the selection of a
financier. If the new contract does not allow the TO RFP to make
adjustments in the IDIQ terms, then this leaves the agency with no
recourse for checking (if only for the math) the ESCO's selection of
financing. **[The IDIQ does allow for adjustments in the TO RFP and TO.
However, such adjustments can not be contrary to the master IDIQ
contract. The TO can have additional terms and conditions as necessary
so long as they are not prohibited in the master IDIQ
contract.]{.underline}**\
H.7.2.B -- Specify who within the ranks of the ESCO will certify the
contents of the Selection Memorandum. **[This should be communicated
between the ESCO and the agency.]{.underline}**\
H.7.2.C -- Same comment as for H.6.3.C.4.\" **[The IDIQ does allow for
adjustments in the TO RFP and TO. However, such adjustments can not be
contrary to the master IDIQ contract. The TO can have additional terms
and conditions as necessary so long as they are not prohibited in the
master IDIQ contract.]{.underline}**

\"H.4 -- In general the PA content seems to be extensive as compared to
commercial practices resulting in a significant work effort. H.4.2 --
Contractor shall submit completed Schedule TO-1 (PA) and documentation
to support the entries on the form. \> Providing schedule TO-1 (PA) and
its supporting documents seem to represent a large work effort. The TO-1
(PA) schedule does not seem to differ much from TO-1 (final). \>
Recommend - 1. Remove requirements for supporting documents, **[The
requirements and effort level entailed in the PA are not substantially
increased. The format has been prescribed in greater detail, however, to
improve ease of review. The number of schedules required as a minimum
has been reduced in this DRFP.]{.underline}**

2\. Modify TO-1 -- Important Information items 1 to 8 to include only
estimated information of 1. interest rate, 2. escalation rates, 3.
completion date., and other contractor identified factors. H.4.2.B.1 --
For each ECM proposed, the contractor shall submit ... items a to k \>
This represents a large work effort in the PA phase. \> Recommend \-- 1.
eliminate or provide brief summaries for e, f, g and j **[Response to
above three comments: The requirements and effort level entailed in the
PA are not substantially increased. The format has been prescribed in
greater detail, however, to improve ease of review. The number of
schedules required as a minimum has been reduced.]{.underline}**

2\. Unless critical issues are evident then eliminate I H.4.2.B.2 --
Performance measurement \> Same comment as H.4.2.B.1as above \>
Recommend - Provide a basic matrix type table to match up ECM to
suggested M&V methodology H.4.2.B.3 -- Management Approach \> Same
comment as H.4.2.B.1as above \> Recommend -- Sub-section a - use 1st
three sentences only\
Sub-section b - Create a second Risk matrix (J-8) labeled PA with
instructions to allow NA or TBD.\
Sub-section c - Delete training\" **[Thanks for the comments. We will
consider making changes to the RFP.]{.underline}**

\"H.4.1 Preliminary Assessment The industry supports the use of Project
Facilitators; however, the FPCC believes that the clause "the PF
requirement shall not be waived by ordering agency" creates concern
because of Agencies, such as the Navy, currently do not use DOE PFs but
instead in-house technical experts that perform the role of a Project
Facilitator. This current clause may prevent the Navy or other Agencies
from using the proposed contract. [**This clause doesn't prohibit
agencies such as the Navy from using their own PFs as long as they are
on the DOE approved PF list. The DOE EERE FEMP website contains a
document titled "Project Facilitation and Quality Assurance for Federal
ESPCs" which provides an overview of the process.**\
]{.underline}Section H.4 also requires a much larger level of effort in
the PA phase than is currently performed in the Initial Proposal phase
of the current IDIQ contract. Requiring increased PA level will entail
more specific estimating and also the involvement of the Project
Facilitators much earlier in the project. Requirement for a DOE PF will
strain resources of all parties (DOE, contracting agency and ESCO), and
increase the project development timeline and overall project costs.
**[The requirements and effort level entailed in the PA are not
substantially increased. The format has been prescribed in greater
detail, however, to improve ease of review. The number of schedules
required as a minimum has been reduced in this DRFP.]{.underline}** How
will this impact PF fees? **[This will vary with each
project.]{.underline}** This section also states that the agency will
not be responsible for any costs associated with PA. This suggests
clarifying that agency is not responsible if project does not go to IGA
phase, however these costs can be recovered when project goes to TO as
defined in J.6.2.\" **[Thanks for the comment. We will consider making a
change to clarify.]{.underline}**

H.4.1 The agency will not be liable for any costs associated with PA
audits or preparation of the PA. In light of the more demanding PA
technical requirements defined by the DRFP, the Government must
compensate ESCOs for the PA effort in the event the project does not
proceed to a TO. Recommend reducing PA technical requirements back to
the current IP requirements. This will also help streamline the process.
Failing that, recommend deleting this sentence. H.4.2 PA technical
requirements defined by the DRFP. Recommend reducing PA technical
requirements back to the current IP requirements. This will reduce up
front costs and help streamline the process.\" **[The requirements and
effort level entailed in the PA are not substantially increased. The
format has been prescribed in greater detail, however, to improve ease
of review. The number of schedules required as a minimum has been
reduced in this DRFP.]{.underline}**

\"H.4.1 States that \"The PF must be actively engage prior to the PA
\"kick-off\" meeting.\" What does this mean? Please provide explicit
requirement.\" **[Precise duties of PFs will be as required by agencies.
DOE has a recommended scope of work which includes participation in
kickoff meetings, but these items do not merit inclusion as IDIQ
requirements.]{.underline}**

\"H.4.1 The agency will not be liable for any costs associated with PA
audits or preparation of the PA. Suggest appending, \"unless a TO is
issued.\" for clarity\" **[Thank you for your comment. We will consider
making a change.]{.underline}**

H.4.2 Content of Preliminary Assessment This section requires a very
detailed PA. The FPCC suggests using the Initial Proposal technical
requirements in the current contract requirements. In particular, we
would suggest deletion of H.4.2.B items d, e, f, g, i and j; H.4.2.B.3.
item c; and adjusting H.4.2.B.3 item a by deleting all but the 1st
sentence This more detailed PA requirement will increase cycle time and
does nothing to move towards the stated goal of a more streamlined
process.\" **[The requirements and effort level entailed in the PA are
not substantially increased. The format has been prescribed in greater
detail, however, to improve ease of review. The number of schedules
required as a minimum has been reduced in this DRFP.]{.underline}**

\"H.4.2 States that contractor shall submit Schedule TO-1 (PA). Is this
the only TO Schedule the Contractor is required to submit with the PA?\"
**[Yes. Per the DRFP, schedule TO-1 is the only schedule
required]{.underline}**

\"H.5.1 Investment Grade Audit (M&V) The FPCC suggests that the language
in these sections revert to the language in the current contract:
continue the use of the DES terminology. An IGA has different goals for
building owners than a DES. The IGA focuses on a comprehensive audit of
all building components and then makes many recommendations on how to
improve energy efficiency. An ESPC DES consists of a feasibility
analysis of all energy consuming equipment and then proceeds to a
detailed comprehensive analysis of the recommended ECMs to be
implemented. DES provides more detailed information on how to implement
changes on specific ECMs as compared to IGAs, which is a comprehensive
engineering study. An easy comparison is to state the IGA is an
engineering study while a DES is a detailed energy engineering analysis,
combined with specific scope of work requirements to install recommended
ECMs. The ESCO industry developing ESPC provides a different value to
the Government as compared to engineering consultants that perform IGA
studies. Additionally, the provision says that each building and/or
space that will and WILL NOT be affected by the ESPC should be
identified. This requirement could substantially increase development
costs, time and development risk. The FPCC advocates that only the
buildings and/or spaces that will be affected should be identified. This
objectionable language appears twice in this section and should be
removed. This section does not comport with the stated goal of a more
streamlined ESPC Process.\" **[The IGA is as defined in Attachment J-2
and as described in section H, and is not this alternate definition
proposed here by FPCC. The request that buildings and systems not
affected be identified intends simply that a brief summary be provided,
in order that future confusion about what is and is not covered by the
ESPC can be avoided. It is not intended to be exhaustive or to imply any
technical analysis in addition to that necessary for recommended
ECMs.]{.underline}**

H.5.1 Suggest beginning first sentence with, \"Following issuance by the
Agency of NOI and TO RFP,\"\" **[Thank you for your comment. We will
consider making the change.]{.underline}**

\"H.5: INVESTMENT GRADE AUDIT FOR TASK ORDERS\
Suggest revising terminology from IGA to DES throughout DRFP. H.5.1:
\"The selected contractor shall conduct an Investment Grade Audit (IGA)
of facilities and energy systems at the project site...\"\
Add text: \"shall conduct an Investment Grade Audit (IGA) of relevant
facilities and energy systems at the project site...\"\" **[Thank you
for your comment. We will consider making the change.]{.underline}**

\"H.6.2 Final Proposal Review for Task Orders This section states that
the agency will not be responsible for any costs incurred in conducting
the IGA or preparing the proposal unless a TO is awarded. The FPCC
advocates deletion of this sentence. We are further concerned that some
agencies might interpret this to mean that the ESCO cannot recover the
IGA/PA even if they are issued a TO. The NOIA must constitute a
commitment to pay the ESCO for the IGA fee as estimated in the NOIA even
if the government does not award the contract. In addition, we oppose
the more detailed PA, which requires substantially more up front ESCO
investment. If that is required, the ESCO should be fairly compensated
for the PA effort. This section appears to conflict with Section J.6.2\"
**[Thank you for the comments. We will consider making a change and
ensure that there are no conflicting sections.]{.underline}**

\"H.6.2 States that Agencies are not responsible for any costs incurred
in the interest of an IGA submission unless a TO is awarded. In some
cases, IGA preparation may require Contractor to expend several hundred
thousand dollars. This requirement places all risk of IGA preparation on
Contractor and will drive project sizes down which is contrary to Gov\'t
goals. Suggest deleting this requirement thereby giving Agency KOs
flexibility to negotiate what party bears the risk.\" **[Thank you for
your comment. We will consider making a change.]{.underline}**

H.7 - REQUIREMENTS FOR COMPETITIVE FINANCING Please clarify the
procedure when the Contractor provides its own financing. .\" **[Even if
the ESCO provides its own financing the procedures in H.7 must be
followed.]{.underline}**

\"H.7.2 B. Requires Contractor certification of Selection Memo. What is
the form of the Certification?\" **[This will be communicated between
the contractor and the agency.]{.underline}**

\"H.7: REQUIREMENTS FOR COMPETITIVE FINANCING ACQUISITION FOR TASK
ORDERS What are the requirements in the event the ESCO finances the
project itself? **[Even if the ESCO provides its own financing the
procedures in H.7 must be followed.]{.underline}**

H.7.2.B: The contractor shall certify to the agency that the contents of
the Selection Memorandum are true and correct and in accord with best
business practice. Please define \"best business practices\". **[This
term means: "business procedures that have proven successful in
practice."]{.underline}**

H.8.1: Unless otherwise specified by the agency, the selected contractor
shall furnish acceptable evidence of a surety's commitment to provide
performance and payment bonds to the agency prior to award of the TO.
This requirement may prove difficult to comply prior to TO award with in
every case, and will likely slow the process. **[Thank you for your
comment. We will consider making a change.]{.underline}** H.8.2: Payment
Bond Penal Sum Doesn\'t the Miller Act provide for 100% for the Payment
Bond? **[Yes]{.underline}** H.8.2.B: The release of bonds depending upon
ownership needs to be clarified. If an LLC builds an on-site facility
the issue of providing a bond and when it is released is an open one.\"
**[Thank you for your comment. We will consider making a
change.]{.underline}**

\"H.9 - Provided the Notice of Assignment is in compliance, clarify
financier\'s authority to inquire about payments. Currently, some
agencies will provide financier with payment information and some will
not.\" **[The contract requires agencies to consider requests from
financiers. DOE does not have the authority to require more from the
agency. If this is an issue, the contractor and agency should
communicate on this subject and come to an agreement.]{.underline}**

\"H.9.1 - Novations and Assignments that require CO\'s signature AND
CO\'s further action with an agency need addressing. Recommend adding,
\"CO shall execute & provide copies of assignments and novations to
payment agency, contractor AND financier within a time period specified
in each TO\".\" **[Thank you for your comment. We will consider making a
change.]{.underline}**

\"In addition to the submission of TO schedules and supporting
documents, the contractor shall provide a summary of the finance offer
being proposed. At a minimum, the finance summary shall include the
Investor Deal Summary (IDS), selected financier's Standard Finance Offer
(SFO) and Selection Memorandum. Recommend change to, \"In addition to
the submission of the TO Schedules and supporting documents, the Contral
shall include the Investor Deal Summary (IDS) to be submitted with
Volume II - Price Proposal.\" At the time of Final Proposal submission,
the 3rd party financier has not usually been selected. Delete
requirement to submit SFO and Selection Memorandum with Final
Proposal.\" **[Thank you for your comment. We will consider making a
change.]{.underline}**

\"INSURANCE\
For purposes of pricing - we do not obtain any release of any insurance
obligation until the project is accepted. The issue of Builder\'s Risk
therefore is important.\" **[Thank you for your comment. We are not
surewhat message you intended to convey.]{.underline}**

\"Requests for the agency to provide financiers copies of any cure or
show-cause notice issued to the contractor. The agency will deliver
copies of all cure or show-cause notices or notices of default to any
third party lender/trustee and will allow a third party lender/trustee a
reasonable period of time to find another contractor to tke over
performance of the contract on substantially the same tems and
conditions as the Contractor in the event that the Contractor defaults
in performance.\" **[We are unable to determine if this is a comment,
recommendation or a question and therefore are unable to addressyour
concern.]{.underline}**

\"RE: H-7 REQUIREMENTS FOR COMPETATIVE FINANCING ACQUISITION FOR TASK
ORDERS Comment: My associates have been able to provide funding for two
DOE Con Edison ESCO projects in New York by competative proposals.
However we have been unable to provide proposals to ESCOs for financing
other energy savings projects. Request: We wish to be placed on a list
of qualified providers of financial services for projects handled by DOE
via all the ESCO providers, and have an opportunity to provide a
financing proposal for upcoming projects. Comment: We had the privilege
of meeting with your committee, the Treasury Department and OMB, among
others, in Washington DC, and we offered several areas wherein we could
provide cost savings on various ESCO projects. Request: If the various
ESCOs do not offer us the opportunity to provide a proposal for funding
projects, we wish to offer providing the funding on a cost
savings/sharing basis to DOE. Thank you, and we look forward to your
reply. **[Thank you for your comment. We do not maintain a list of
financiers. Please see Special Notice 1 in the DOE IIPS for instructions
on how to be placed on the DOE qualified list of ESCOs.]{.underline}**

\"Sec. H.4.1 - \"A DOE approved facilitator is required for the
utilization of this master IDIQ contract.\" and \"The PF requirement
shall not be waived by the ordering agency.\" Please clarify how this
applies to Agencies, such as the Navy, who currently use in-house
technical experts to review ESPC proposals; however, do not necessarily
perform all the same functions as a DOE PF. Will this mean that the Navy
will now be required to use DOE PFs?\" [**This clause does not prohibit
agencies such as the Navy from using their own PFs as long as they are
on the DOE approved PF list. The DOE EERE FEMP website contains a
document titled "Project Facilitation and Quality Assurance for Federal
ESPCs" which provides an overview of the process.**\
]{.underline}

\"Sec. H.4.2 & J6.1.1 - \"Contents\" - \"The contractor shall submit
completed TO-1 (PA) and documentation to support the entries on the
form.\" \"Section J-6.1.1 Schedule TO-1\" is a unique template to be
submitted with the PA. Does this mean the Contractor no longer needs to
provide Schedules TO-2-4 with the PA? or is the the phrase
\"documentation to support entries on the form\" referring to Schedules
TO-2-4?\" **[The requirements and effort level entailed in the PA are
not substantially changed. The format has been prescribed in greater
detail, however, to improve ease of review. The number of schedules
required as a minimum has been reduced in the intent of streamlining.
Supporting documentation may include information now provided in
schedules 2, 3 and 4. However, these other schedules and/or additional
information may be required by the agency, as noted in the draft RFP:
"The contractor shall include in its PA technical and price assessments,
in a format in accordance with agency requirements"]{.underline}**

\"Sec. H.7.1 - \"After completion of the IGA and prior to the submission
of the final proposal, the contractor shall submit the IDS, along with
the contractor\'s point of contact, electronically in Microsoft Word
format, to the agency CO for review, or as otherwise directed by the
agency CO.\" Is it DOE\'s intent to submit the IDS to the CO prior to
the sending it to the finance companies? If so, for what purpose? Is DOE
suggesting the Government provide direction on the contents of the IDS
or selection of a Financier? Please explain.\" **[The intent of
providing the agency CO, at their discretion, with the opportunity to
review the IDS is only to ensure that the IDS is completed
accurately.]{.underline}**

\"Sec.H.6.3.B.1.j. - \"...and proposed percentage of estimated financial
incentive payment or financing reduction the contractor guarantees as
submitted in TO-3 schedule.\" Our interpretation is that this allows the
Government to share in the risk of the amount of the \"utility rebate or
system benefit fund financial and tax incentive.\" Please confirm this
interpretation.\" **[The Government will not anticipate receiving any
greater benefit from the incentive or rebate than what is guaranteed,
and will not be at risk for the amount the ESCO guarantees, whether or
not the actual amount received by the ESCO is greater.]{.underline}**

\"The agency will not be responsible for any costs incurred, such as
proposal preparation costs or the costs incurred in conducting the IGA
unless a TO is awarded. If the selected contractor, based on a NOI and
accepted PA, is instructed to proceed with the IGA, the contractor must
be compensated for the IGA whether the TO is awarded or not.\" **[Thank
you for your comment. We will consider making a change.]{.underline}**

\"The contractor shall not file any mechanics liens against the agency
for the TO projects and this requirement shall flow down to all
subcontractors. Therefore, the payment bond shall secure the
contractor's obligations for payment of laborers, suppliers, and all
subcontractors. Unacceptable. Must be written in accordance with the
standard for federal construction contract regulations.\" **[Thank you
for your comment. We will consider making a change.]{.underline}**

\"The contractor shall submit the IDS, SFO, Selection Memorandum and
certification with its final price proposal to the agency CO. Recommend
revise to, \"The contractor shall submitt the IDS with its final procie
proposal to the agency CO. The contractor shall submit the selected
financier\'s SFO, Selection Memorandum, and certification within 30 days
of submission of the Final Proposal.\"\" **[Thank you for your comment.
We will consider making a change.]{.underline}**

\"The performance bonds must be allowed to include the standard
exculpatory language that indicates the energy savings is not part of
the coverage provided under the bond.\" **[Thank you for your comment.
We will consider making a change.]{.underline}**

\"Why was the lender\'s step-in right to takeover performance of the
contractor removed? This provision should be added back.\" **[Thank you
for your comment. We will consider making a change.]{.underline}**

\"\"Nothing herein shall relieve or limit the contractor of liability
for losses and damages to person or property as a result of its
operations. The contractor shall indemnify and hold the Government
(including the ordering agency, DOE, and any person acting on behalf of
the Government) harmless from any and all liability, including
attorneys' fees and legal costs, associated with or resulting from the
contractor's operations under this master IDIQ contract or any TO issued
hereunder.\" 1) The Government should be responsible for its failure to
comply with the maintenance practices specified in any TO and for the
willful or intentional misconduct and/or gross negligence on the part of
the Government, the ordering agency, DOE, and any person acting on
behalf of the Government. 2) The liability of the ESCO should be limited
to the amount of the insurance required to be in force under the IDIQ.
The FAR limitation of Liability clause is incorporated, however, it is
not the typical LOL clause, as it is effective post acceptance, and then
limits our liability to the amount of insurance in force. Ref. 52.246-23
3)Under no circumstances will ESCO be liable for any special,
incidental, punitive, exemplary, indirect or consequential damages,
however caused and on any theory of liability arising out of or under
this Master IDIQ, or any TO issued hereunder.\" **[Under the applicable
ESPC statute, the Government is neither allowed nor required to
undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

**Section I**

\"Are the amounts listed the sum of the contractor payments?\" **[Thanks
for the question. Yes, the ordering limitation in I.3 refers to the sum
of contractor payment amounts.]{.underline}**

Concern: This provision establishes subcontracting goals for three
classes of businesses - SDB or Woman owned, HBCU, and Hispanic/Native
American colleges and universities. The goals for each category is 20%.
While 20% is practical for the SDB or Woman-owned, it is clearly not
practical for the two college and university categories. Recommend that
DOE either revise the goals downward for the two college and university
categories or leave the goals percentage blank and allow the contractor
to insert their goals for those categories the same as for all other
subcontracting goals included in their proposal response. NOTE: My
comment immediately preceding this one mistakenly referenced I.10;
should have referenced I.1.\" **[Thanks for the comment.]{.underline}**
**[This is a required DEAR clause and can not be altered or deleted.
Presumably the intent of the clause is for master IDIQ contract holders
to subcontract to small business concerns, historically black colleges,
colleges with a predominant amount of Hispanic or Native American
students whenever possible. The master IDIQ contract holder should
attempt to identify work on every project that may be completed by these
entities.]{.underline}**

\"I.10 This DEAR Subcontracting Goals and Reporting Requirements is
unfair and unrealistic in that it requires us to use our best efforts in
awarding 20% of our subcontracts to Historically Black Colleges and
Universities as well as 20% to colleges or universities having a student
body in which more than 20% of the students are Hispanic or Native
Americans. We do not subcontract out to colleges or universities in our
business and as such this goal is not achievable. Request removal of
this DEAR and insert the FAR 52.219-8, Utilization of Small Business
Concerns clause instead.\" **[Thanks for the comments. FAR clause
52.219-8 is already incorporated into the DRFP. The required DEAR clause
requires a best effort to meet the goals identified in I.10 of the DRFP.
The master IDIQ contract holder should attempt to identify work on every
project that may be completed by these entities.]{.underline}**

\"I.10 (b) (2) and (3) Requires Contractor to provide best efforts to
award subcontracts to colleges and universities? What is the intention?
How can this requirement be met?\" **[This is a required DEAR clause.
Presumably the intent of the clause is for master IDIQ contract holders
to subcontract to small business concerns, historically black colleges,
colleges with a predominant amount of Hispanic or Native American
students whenever possible. The master IDIQ contract holder should
attempt to identify work on every project that may be completed by these
entities.]{.underline}**

\"I.2 (b) In the event of conflict between a delivery order or task
order and this contract, the contract shall control. Suggest deleting
this - TO RFP and TO may change certain provisions of IDIQ and must take
precedence\" **[Thanks for the comment. However, this clause is required
by the FAR and can't be altered. The TO may contain additional clauses
so long as the TO clauses don't conflict with the clauses in the master
IDIQ contract.]{.underline}**

\"Question: FAR 52.219-8 and -9 requires large businesses to utilize
small business subcontractors and to establish goals for each small
business category including Small, SDB, woman-owned, HUBZone,
veteran-owned, and disabled veteran-owned. The provision at I.10
although it does establish some goals for subcontracting under the IDIQ
it does not establish goals for all small business categories. Further,
L.9.2 also establishes goals for subcontracting under the IDIQ but this
provision only addresses two small business categories - SDB and
woman-owned. What are the real small business subcontracting goals for
the IDIQ? Recommendation: Identify all small business subcontracting
requirements and goals in one location in the RFP/contract.\" **[Clause
52.219-8 identifies the requirements to utilize the various small
business concerns and clause 52.219-9 requires the contractor to develop
a small business subcontracting plan. The DRFP requires the offeror to
submit a subcontracting plan with its proposal for evaluation which will
eventually become part of the contractor's master IDIQ contract. The
contractor's/offerors plan must Section L.9.2D of the DRFP states that
an acceptable small business subcontracting plan will contain a small
business goal of 20%]{.underline}**

**Section J**

\"\--Attachment J-1 -- HVAC is defined incorrectly. It should read
Heating, Ventilating and Air-Conditioning. **[Thank you for your
comment. We will redefine HVAC.]{.underline}**\
\--Attachment J-2, Definitions • Added Premium -- Confusing with regard
to the added premium being a pass through cost. The project interest
rate as a whole is a pass through cost. The author likely meant to infer
that the costs associated with financing procurement are a pass through
cost. **Thank you for your comment. We will consider making a change.**\
• Applicable Financial Index -- suggest changing reference to this as
the "first" to the "larger component". **[Thank you for the comment.
However, we tend to disagree. While larger, the Index Rate is also the
first component of Project Interest Rate, as shown on
TO-3.]{.underline}**\
• Annual energy audit should be deleted in favor of "Annual M&V report"
to avoid confusion. **[Thank you for the comment. The term "annual
energy audit" is used because that is the terminology used in the
authorizing statute. See 42 USC Section 8287.\
]{.underline}**• ECM -- suggest adding that rate renegotiations and fuel
switching are considered to be ECMs. **[Thank you for your comment. We
will consider making a change.]{.underline}**\
• Financing Procurement Price -- Note that this is typically a pass
through cost. **[Thank you for your comment.]{.underline}**\
• Guaranteed annual cost savings -- The word "actual" should be replaced
with "reported" in the following passages: "The annual energy audit
establishes actual savings. If actual savings fall short of the
guarantee, the contractor will pay back the shortfall over the next
interval by accepting lower payments." **[Thank you for your comment. We
will consider making a change.]{.underline}**\
• Index rate -- Suggest replacing the definition with the following:
"The index rate is the prevailing cost of borrowing in the financial
markets. It can be based on U.S. Treasury Securities or other accepted
financial indexes, as agreed between the agency and the contractor. The
total interest rate is the sum of the index rate and an added premium to
cover the financier's costs. **[Thank you for the comment. However, we
tend to disagree. This is included in the definition of Applicable
Financial Index.]{.underline}**\
• Implementation Expense -- This does not include indirect costs. Refer
to TO-2, Note #2 on page 95 of the RFP. **[Thank you for your
comment.]{.underline}**\
• Implementation Profit -- Is not applied to indirect expenses. Rather
it is applied to Direct Expenses only. Refer to TO-2, Note #2 on page 95
of the RFP. **[Thank you for the comment. However, we tend to disagree,
it should be applied to the direct plus indirect
expenses.]{.underline}**\
• Implementation Price -- Similar comment to above (Implementation
Profit). **[Thank you for the comment. However, we tend to disagree, it
should be applied to the direct plus indirect expenses.]{.underline}**\
• Multiple Technology Category (TC) Projects -- Projects including ECMs
in more than one of the TCs shown in Attachment J-2. Costs shown on
Schedule TO-4 breaks down first-year estimated savings by ECM and TC.
**[Thank you for your comment. We will consider making a
change.]{.underline}**\
• Post Acceptance Performance Period Annual M&V -- The intent is to
ensure that the project continues to have the potential to generate the
guaranteed savings not the predicted savings. **[Thank you for your
comment.]{.underline}**\
• Post Installation M&V Activities -- Similar to previous comment.
**[Thank you for your comment.]{.underline}**\
• Project development -- The word "IGA" should be replaced by "IGA and
Final Proposal." **[Thank you for your comment. We will consider making
a change.]{.underline}**\
• Project interest rate -- Suggest replacing the existing definition
with the following: "The effective total interest rate for the financed
amount for a particular TO project, which consists of the index rate
plus the added premium. (Also see Added Premium.) **[Thank you for your
comment. We will consider making a change.]{.underline}**\
• Task Term Order -- This definition as written truncates the project
term by including the implementation period. Strike the words "the sum
of the implementation and" and change "periods" to "period," as: "The
term of a TO contract issued against this master IDIQ contract is
defined as the performance period negotiated and identified in Schedule
TO-1 (final). The maximum TO term is 25 years from TO award." **[Thank
you for the comment. However, we disagree with your
comment.]{.underline}**\
• Total Post Acceptance Performance Period Expenses -- show formula in
equation form rather than narrative form. **[Thank you for your comment.
We will consider making a change.]{.underline}**\
• White tags - Where it says "electricity generated from a renewable
energy facility" it should say "electricity not generated and/or other
fuels not consumed as a result of energy conservation." **[Thank you for
your comment. We will consider making a change.]{.underline}**\
\--Attachment J-5 -- Under the column Recipient, why are multiple
electronic copies being required for a single person (i.e. DOE COR for
the Draft IGA/Final Proposal). **[Thank you for your comment. We will
consider making a change. As a reminder, this attachment is intended to
be an example not as a requirement.]{.underline}**\
\--Attachment J-5 -- For the Post-Award Deliverables, Item #7, the
frequency should be changed to reflect multiple submissions of the
package (one for review at mid and final stage of design completion and
one final copy for record). **[Thank you for your comment. We will
consider making a change.]{.underline}**\
\--Attachment J-6.1.2 -- TO-1 (Final), Item G -- The description of
columns h, g & I (presented in that order) do not agree with the actual
schedule, TO-1 (Final) presented on page 93. **[Thank you for your
comment. We will consider making a change.]{.underline}**\
\--Attachment J-6.1.2 -- TO-1 (Final), Item G -- Incentive payments are
not addressed in the RFP. They are only referenced in one other part of
the RFP and this is in the format for the final proposal. **[Thank you
for your comment. We will consider making a change.]{.underline}**

\--Attachment J-6.1.2 -- TO-3 -- Reference Part A, in this description
one should note that the finance procurement price is added to the total
implementation price. **[Thank you for your comment.]{.underline}**\
\--Attachment J-7, Schedule TO-2 -- Part of this schedule is solid black
on the black & white printout. **[Correct. That is what was
intended.]{.underline}**\
\--Attachment J-9, Section J-9.2.3.c -- The formats for the
post-installation report and the annual M&V report are to found on the
FEMP website. What is the purpose of providing the current copy of each
in Attachment J-10 and J-11? **[Simply to emphasize the value that is
placed on quality M&V.\
]{.underline}**\--Attachments J-6, 9, 10, and 11 -- Is it necessary to
add the attachment number (e.g., J-10, J-11) to the numbered sections of
the document? I don't think this is a user-friendly practice.\" **[Thank
you for your comment. We will consider making a change.]{.underline}**

\"1) Energy Conservation Measure (ECM) The term ECM includes renewable
energy systems and other measures that result in energy, water, or
related cost savings.\
Add text: \"\...includes renewable energy systems, improvements to the
efficiency of energy production systems and the generation of electrical
or thermal energy and other measures...\" **[Thank you for your comment.
We will consider making a change.]{.underline}** 2) Energy Conservation
Measure (ECM) - A measure applied to a Federal building or facility that
improves energy efficiency, is life cycle cost effective under 10 CFR
Part 436, Subpart A, and involves . . .\
Suggest removing the clause \". . .is life cycle cost effecitve under 10
CFR Part 436 Subpart A, . . .\" Agencies may wish to pursue ECMs that
have very long paybacks because they make sense bundled as part of the
entire package. While there are probably ways to tweak the life cycle
cost analysis to get the right answer, it would be nicer not to have to
meet this threshold. The economics having to finance these projects
within the 25 year term will naturally control payback of the overall
project anyway.\" **[The ESPC authorizing legislation defines ESPC
contracts as those that provide for an identified ECM or a series of
ECMs at one or more locations. DOE encourages, and it is our intention
to allow, the bundling of related measures (smaller, larger, shorter
payback, longer payback, etc.) to save energy, reduce energy costs, and
promote the use of renewable technologies, such that the overall project
is life-cycle cost effective. A group of related ECMs may be bundled
together to become one or more larger ECMs for purposes of determining
life cycle cost effectiveness. We will consider clarifying
language.]{.underline}**

\"1) Evidence of surety commitment prior to Award.\
This requirement may prove difficult to comply prior to TO award with in
every case, and will likely slow the process. **[Thank you for your
comment. We will consider making a change.]{.underline}** 2) TO-3, Less:
Incentives Line Not sure this should be shown only as a reduction to
Principal. **[Thank you for your comment. We will consider making a
change.]{.underline}** 3) TO-3, Indirect -% and Profit % Why are these
shown separately?\" **[Because they are separate things.]{.underline}**

\"1) Table 1, column 2 is \"Indirect Expense\"\
Revise column (2) heading to \"Implementation Expense\" 2) Table 2\
Add \"(h) Government\'s first payment\" to Table 2\" **[Thank you for
your comments. We will consider making changes.]{.underline}**

\"1)J.11.1.2.B: ANNUAL REPORT OUTLINE - Brief Project and ECM
Descriptions. This provision currently reads: \"Note any changes in
project scope between the final proposal (including any relevant
contract modifications) and As-Built conditions.\" The place to note
these changes is in the Post Installation Report. There is no need to
repeat those changes again every year in the M&V Report. Recommend
deleting this section as unnecessary. **[Thank you for your comments. We
will consider making changes.]{.underline}**

2\) J.11.2.1.B: ANNUAL REPORT OUTLINE - Details for Each ECM. Discuss
any changes in scope/results recorded in Post-Installation M&V Report.
Do we really need to repeat the findings of the Post Installation Report
again here? Recommend deleting this section as unnecessary. **[Thank you
for your comments. We will consider making changes.]{.underline}**

3)J.11.2.6.A: ANNUAL REPORT OUTLINE - Operating Requirements Item (2)
Summarize key operating procedures and any related verification
activities. This could be a very lengthy discussion. All operating
procedures are already documented in the O&M Manuals. It seems
cumbersome and unnecessary to repeat them here in every M&V Report.
Recommend deleting this section as unnecessary. **[Thank you for your
comments. We will consider making changes.]{.underline}**

4)11.2.6.D: ANNUAL REPORT OUTLINE - Repair and Replacement Requirements.
Item (2) Summary of activities conducted this period by contractor or
agency. Again, this seems unnecessary and potentially adding a great
deal of bulk to each year\'s M&V report. Routine repair and replacement
activities like lamp and ballast replacements would be much too
cumbersome to report annually. Likewise, any other items in need of
repair or replacement will naturally be flagged in the M&V report due to
changes in performance. To routinely document all repair and replacement
activities is unnecessarily burdensome. Recommend deleting this section
as unnecessary.\" **[Thank you for your comments. We will consider
making changes. However, the intent is a summary of repair and
replacement activities, not a detailed report on all R&R
activities.]{.underline}**

\"8.3.b \"Responsibility for operations is negotiable, and it can impact
performance.\"\
As written, this conflicts with C.6.1. Recommend re-writing C.6.1 to
reflect ability to negotiate responsibility. 8.3.c \"Responsibility for
maintenance is negotiable, and it can impact performance.\"\
As written, this conflicts with C.7.1. Recommend re-writing C.7.1 to
reflect ability to negotiate responsibility. 8.3.d \"Responsibility for
repair and replacement of contractor-installed equipment is negotiable,
however it is often tied to project performance.\"\
As written, this conflicts with C.8.1. Recommend re-writing C.8.1 to
reflect ability to negotiate responsibility.\" **[Under the applicable
ESPC statute, the Government is neither allowed nor required to
undertake the risk of ECM repairs or maintenance. Rather, that
responsibility lies with the contractor. See 42 U.S.C. § 8287(a)(2)(A).
In addition, because the contractor is responsible for the level of
guaranteed savings, the contractor bears the ultimate responsibility for
the proper repair, maintenance and operations of the equipment
installed. Although *responsibility* for repair, maintenance or
operations remains with the contractor, *performance* of these
activities may be undertaken by either the contractor or agency, as
negotiated. Where the agency performs the activities, the contractor is
required to provide adequate work requirements, work procedures, and
checklists, and conduct periodic inspections, to ensure the activities
are performed as necessary to achieve the guaranteed savings. The
contractor therefore bears the ultimate risk regardless of which party
performs the activity and all payments to the contractor must be made
from energy savings. If the contractor believes that the agency has
failed to perform repair, maintenance or operation activities in
compliance with contractor-provided work procedures, and ECM performance
is adversely affected, the contractor should promptly notify the DOE
Contracting Officer and request an equitable adjustment under the
Changes Clause (FAR 52.243-1) of this master IDIQ. We are considering
adjustments to J-8.3 to be in alignment with C.6.3, C.7.3, and
C.8.3.]{.underline}**

\"Attachment J-4 - Technology Categories TC-16 - suggest DOE add another
bullet \"Industrial process improvement\"\" **[Thank you for your
comments. We will consider making changes.]{.underline}**

\"Comment: Attachment J-5 - Annual report - lists delivery at 30 days
after each year. This appears to be inconsistent with obtaining written
acceptance on the annual report prior to \"anniversary\" invoicing.
Suggestion: Suggest adding clarification language to eliminate
inconsistency.\" **[Thank you for your comment. We will consider making
a change.]{.underline}**

\"Comment: Attachment J-5 - Post Installation Report - lists delivery at
30-60 days after project acceptance. This appears to be inconsistent
with obtaining written acceptance on the Post Installation report prior
to invoicing. Recommendation: Suggest adding clarification language to
eliminate inconsistency.\" **[Thank you for your comments. We will
consider making changes.]{.underline}**

\"Comment: Attachment J-6 - Schedule TO-2 and TO-3. On TO-2 \"Indirect
implementation expense\" appears to require a \$ amount, while on TO-3
under the \"Post-Acceptance Performance Period Expenses\" the \"Indirect
Cost Rate\" is required to be in %. Please clarify DOE intent to report
the indirect expenses in a different manner for each form. Another
similar question for the profit line item on each form. Recommendation:
Suggest DOE choose one method % or the actual \$ amount to be consistent
between the forms.\" **[Thank you for your comments. We will consider
making changes.]{.underline}**

\"COMMISSIONING PROCESS \-- Note: This attachment is currently under
development and may or may not be incorporated into this contract.
Discussions are ongoing on whether the information regarding the
Commissioning Process is better suited as a stand alone guidance
document instead of as a contract attachment. Reference Section C.5.4 We
reserve the right to review any as yet \"TBD\" Commissioning
procedure.\" **[Thank you for your comments. We will consider your
request.]{.underline}**

\"Definition of Post-Acceptance Performance Period Expenses The only way
to recover an offsite investment required under a TO, which will have a
financing component, is through the Post-Acceptance Performance Period
Expenses.\" **[Thank you for your comment.]{.underline}**

J-1 Acronym list is missing FP (Final Proposal), which is used
throughout add to the list **[Thank you for your comment. We will
consider making the change.]{.underline}**

J-12 Discussions are ongoing on whether the information regarding the
Commissioning Process is better suited as a stand alone guidance
document instead of as a contract attachment. Guidance doc is more
appropriate **[Thank you for your comment. We will consider making the
change.]{.underline}**

J-13 Reconciliation and set off language for ESPC projects Consider
elimination of costly reconciliation and set off language for ESPC
projects in favor of a uniform savings verification standard for all
energy efficiency projects regardless of funding source **[Thank you for
your comments. Despite our efforts to do so, we could not find
"reconciliation and set off language for ESPC projects" in J-13. It is
further unclear what this question means by "uniform savings
verification standard."]{.underline}**

J-13 The present IDS provides for markup. This now asks for Indirect
Expense and separately Profit. The question is whether Indirect Expense
should be more clearly defined as Overhead since our Construction Budget
has items such as legal which cover several projects which by the RFP\'s
definition would be considered \'Indirect Expense\' Please clarify and
provide an example **[Thank you for your comments. It is not the purpose
of the contract to prescribe contractor accounting
systems.]{.underline}**

J-13 Under Key events, (a) within one box asks for the effective dates
of Premium Over Index and Financial Procurement Price are good. These
are two separate issues, one controlled by the finance company and one
by the ESCO. Have two separate boxes for these categories so that two
different dates can be entered in the spread sheet. **[Thank you for
your comment. We are considering clarifying the information in Table 2
of J-13.]{.underline}**

J-13 Item 7 asks for Total Post Acceptance Period performance payment
(sic). Does this mean Year One payment, or total payments over the term
of the performance period? If the latter, this underscores having a
total column in TO-3 than can be used as reference Please clarify if
total post acceptance period payments is in fact total over the term.
**[Thank you for your comment. We are considering clarifying Table 7 in
J-13. This is intended to be the Year One Annual Payment, not the total
over the term.]{.underline}**

J-14 Item 3 Financing Term index rate based upon interpolating really
isn\'t necessary as financiers can quote from different indices, what
really matters is the net present value of the total payment stream
payable to the financiers. Suggest that if a financier wants to use an
alternate index, that the index be specified along with the applicable
source to provide backup. Actual value of proposal can be calculated
from NPV of payments to the Government **[Thank you for your comment. We
will consider making the change.]{.underline}**

J-2 Indirect Cost has one definition in Implementation and a
substantially different and more cumbersome definition in Post
Acceptance. Request that indirect costs be defined the same for both -
with a clear definition **[Thank you for your comment. We will consider
making the change.]{.underline}**

J-2 Project Interest Rate appears to be defined incorrectly. The
basically state that it\'s the \"proposed Added Premium\" Project
Interest Rate should be defined as the sum of the proposed Added Premium
and the Index Rate **[Thank you for your comment. We will consider
making a change.]{.underline}**

J-2 Const Finance Charge Defn: Has reference to including in Final
Procurement Price on PA-3. What is PA-3? Is this a PA equivalent to
TO-3? If so, PA does not require TO-3 schedule? Please clarify what PA-3
is referring to. **[Thank you for your comment. PA-3 is a typo and we
will make a change to remove the reference.]{.underline}**

J-2 ECM Defn: Say ECMs must be Life Cycle Cost effective per 10CFR Part
436, Subpart A. This implies that each ECM alone must meet some LCC
hurdle. Not likely that renewables and major infrastructure ECMs will
meet this. Request clarification. This appears to take away the concept
on bundling ECMs if each ECM on its own must meet a LCC effective
criteria. **[The ESPC authorizing legislation defines ESPC contracts as
those that provide for an identified ECM or a series of ECMs at one or
more locations. DOE encourages, and it is our intention to allow, the
bundling of related measures (smaller, larger, shorter payback, longer
payback, etc.)to save energy, reduce energy costs, and promote the use
of renewable technologies, such that the overall project is life-cycle
cost effective. A group of related ECMs may be bundled together to
become one or more larger ECMs for purposes of determining life cycle
cost effectiveness. We will consider clarifying language.]{.underline}**

J-2 Energy Related Cost Savings defn: Does not make it clear that energy
related cost savings (i.e. O&M savings) can be recurring costs but they
usually are. Add words to the definition to make it clear that energy
related cost savings can be recurring (like it has for Energy Cost
Savings). **[Thank you for your comment. We will consider making a
change.]{.underline}**

J-2 Implementation Price defn: States that price includes Project
Development costs. Project Development Costs defn state that this is
costs after TO RFP and NOI. What about PA costs incurred. Need
clarification on whether PA related costs are recoverable and can be
included in Implementation Price. **[Thank you for your comment. We will
consider making a change to clarify.]{.underline}**

J-2 Indirect Cost Defn: this sounds like overhead costs. See defn for
Past Acceptance Period Indirect costs where is specifically state
overhead and G&A. Need clarification on what is included in
Implementation Price Indirect costs (they go on Schedule TO-2 as a
specific entry. Need to understand how they are used, if they are to be
based on fixed %, and how we need to justify them. **[Contractor's
accounting systems determine what costs are direct and what costs are
indirect. Many contractors have approved indirect rates and indirect
cost categories already established in their accounting
practices.]{.underline}**

J-2 Definition of \"Estimated Cost Savings\" should allow for annual
utility rate escalation factors Please change \"in affect at the time
the project is developed\" to \"and annual escalation factors as agreed
upon in the FP\" **[Thank you for your comment. We will consider making
a change.]{.underline}**

J-2 Definition of Indirect Cost - Don't understand the definition Please
clarify and provide an example **[Indirect costs (or overhead) in
contrast with direct costs, are expenses that have been incurred for
purposes common to all projects, but which cannot be identified and
charged directly to each individual project without an inordinate amount
of tracking and accounting. These expenses range from utilities,
building maintenance and renovation to accounting, payroll. Contractors
determine what costs are direct and what costs are indirect. See FAR
31.202 for more information regarding direct and indirect
costs.]{.underline}**

J-2 Definition of Multiple Tech Category projects says the cost must be
broken down into TC\'s. This is an extremely cumbersome requirement, and
may even be impossible (pricing is often not done by TC) Suggest
remaining with current method - choose the single most applicable TC for
each ECM **[Thank you for your comment. We will consider making a
change.]{.underline}**

J-2 Definition of Post Acceptance performance period Indirect Cost -
This pricing element sounds different from Indirect Construction costs -
needs clarification Please clarify and provide an example **[The
definition of indirect costs doesn't change with a different phase of
the project. What costs are direct and which are indirect is determined
by the contractor according to its established accounting
practices.]{.underline}**

J-2 Definition of Project Development should include PA Please add PA
**[Thank you for your comment. We will consider making a
change.]{.underline}**

J-2 The Government will determine whether an ESPC contractor-proposed
task assumption, reduction, or elimination will be considered recurring
energy-related cost savings. This can be significant and contractors
need this decision made early on and without mixed signals or
conflicting positions from different organizations (site, agency, DOE)
Please clarify who will make this decision and when **[This should be
communicated and agreed to by the agency and contractor. The timing of
this decision would be on a case-by-case basis.]{.underline}**

J-2 Commissioning definition references Attachment TBD. Text will need
to be edited if J-12 is not developed. **[Thank you for your comment. We
will consider making a change.]{.underline}**

J-2 Post Installation M&V Activities description states that \"Cx
assures that the building systems perform interactively in accordance
with the design documentation and intent.\" Should remove \"building
systems\" and replace with \"ECM\'s\". **[Thank you for your comment. We
will consider making a change.]{.underline}**

J-2 Attachment J-12 Cx Process may or may not become part of the
contract, text suggests it may be better suited as a stand alone
guidance document instead of as a contract attachment. Recommend that
this remain as a stand alone guidance document given the variety of
tasks involved with different ECM technologies as well as the Contractor
Specific processes which have been developed for incorporating effective
ECM commissioning into the ESPC construction process. **[Thank you for
your comment. We will consider making a change.]{.underline}**

J.4.TC.7 Ground source heat pumps appear here and under TC11. It belongs
under TC4, HVAC Systems or TC11, Renewables. Delete from TC7 **[Thank
you for your comment. We will consider making a change.]{.underline}**

J-4 Generation in excess of site needs does not appear to be currently
authorized. Recommend removing this restriction (remove as a future TC,
and allow under TC.10) **[Because this contract cannot be contrary to
existing law, we are not authorized to make this change.]{.underline}**

J.6.1.2.D Escalation Rates. The notes appear to assume a uniform
escalation rate whereas NIST is escalated at different rates in each
year. Reference to note 6 is incorrect. It should be note 7 Change note
reference. **[Thank you for your comment. We will consider making a
change.]{.underline}**

Please clarify if using uniform escalation rates or NIST rates. **[The
default is NIST unless another methodology is allowable and agreed to by
the agency and contractor.]{.underline}**

J-6 In line with the comment on section J.6.1.2.F, the guaranteed annual
cost savings do not necessarily have to exceed the contractor payments
in such cases where other funds (whether rebate, etc.) are used to meet
contractor payments. Remove the 4th sentence starting with \"The
guaranteed annual...\". **[Thank you for your comment. We will consider
making a change.]{.underline}**

J-6.1.1 and 2 The TO-1 Schedule has 24 years but does not have a row for
total project expenses. Suggest adding a row for total project costs
over the term of the contract. **[Thank you for your comment. We will
consider making a change.]{.underline}**

J-6.1.1G TO-1 Final - Discusses column h for share of savings over and
above guarantee. But Att J-7 TO-1 (PA and Final) templates do not show a
column h. Please clarify Column h and its use. **[This is a typo. We
will change the reference to column h.]{.underline}**

J-6.1.2A Should not be limited to avoided R&R; Need to allow MILCON or
public benefits funds or ECIP to be applied as a one-time payment **[The
law and statute do not currently allow this.]{.underline}** Delete \"for
repair or replacement by contractor\" (reference the INSTRUCTIONS FOR
IMPLEMENTING EXECUTIVE ORDER 13423 March, 2007, which says
\"Appropriated funds may be combined with Energy Savings Performance
Contracts (ESPCs) and Utility Energy Service Contracts (UESCs) to
leverage government funding and optimize project scope and reductions in
energy use and cost of facility operations.\")

J-6.1.2.F Requirement that savings exceed payments during the
implementation period precludes use of appropriated funds. Should allow
any funds - MILCON or public benefits funds or ECIP to be applies as a
one-time payment Remove the note, and reference the INSTRUCTIONS FOR
IMPLEMENTING EXECUTIVE ORDER 13423 March, 2007 **[The law and statute do
not currently allow this.]{.underline}**

J-6.1.2.G This provides for a contractor performance incentive payment.
This payment is not defined previously in the definitions and it is
unclear of its intent or its operating mechanism. Please clarify
**[Thank you for your comment. J-6.1.2 G is not applicable and will be
deleted.]{.underline}**

J-6.1.4 The TO-3 Schedule provided does not include a column for total
costs over the contract term. Suggest adding a column for total project
costs over the term of the contract. **[Thank you for your comment. We
will consider making the change.]{.underline}**

J-6.1.6 Refers to columns (a) and (b), but column (a) has been removed
in the new version of TO-5 Remove these references **[Thank you for your
comment. We will consider making the change.]{.underline}**

J-6.1.6 typically included as a note to TO-5, suggest it is added to the
contract. Add the following to TO-5: The Government shall deliver copies
of all cure or show cause notices or notices of default to the
Contractor and any third party lender/trustee, and will allow any third
party lender/trustee a reasonable period of time to find another
contractor to take over performance of the contract on the same terms
and conditions as the Contractor in the event Contractor defaults in
performance by failing to properly cure or commence the cure of a
default after receiving notices of same. **[Thank you for your comment.
We will consider making the change.]{.underline}**

J-6.1.6 Columns (a) and (b) are not labeled, and there is only one
column which would appear to be consistent with the description of
column (b) Add Column (a) and label for Column (b) **[Thank you for your
comments. Reference to column (a) in J-6.1.6 will be
deleted.]{.underline}**

J-6.1.6 there is a potential problem with the annual cancellation
ceiling and capital outstanding. These assume that the payments have
been made in a timely manner. If payments are late, the remaining
principal sum will accrue additional interest costs that could lead to
the actual amount outstanding exceeding the outstanding unamortized
principal Suggest Note be added that outstanding unamortized principal
ceiling assumes that all payments have been made on schedule. The
ceiling can be increased by the amount of accrued interest when payments
are late in the year of full or partial termination. **[Thank you for
your comment. Column (a) reference in J-6.1.6 will be
deleted.]{.underline}**

J-6.2 The label of \"Develop and Submit Preliminary Assessment
Proposal\" appears to allow for these costs to be recovered. This is
inconsistent with H.4.1 Please clarify and provide an example **[Thank
you for your comment. We will consider making the change.]{.underline}**

J-6.2 In Post Implementation, they separate out the categories of
Indirect Labor and Overhead Costs. Schedule TO-3 only has two rows for
Indirect Costs. The category of Management/Administration where we
include subcontracting administration, accounting, would be put
\'Indirect\' (costs that can be attributed to more than one ECM) right
now. The definitions of Indirect Costs and Overhead Costs needs to be
clarified and a better organization of where they are to be treated and
carried. **[Thank you for your comment. We will consider making the
change.]{.underline}**

J-7 TO-2 Col (b) under Implementation is \"Indirect\"? Definition is
unclear on whether this is overhead, or internal direct costs, or ??
Please clarify and provide an example **[Indirect expense (i.e.
G&A)]{.underline}**

J-7 TO-3 It appears to be assumed that RECS and White Tags can be
applied 100% to principal reduction; this may not be allowable by the
financiers. Suggest Government ask Financiers for guidance **[Thank you
for your comment. We cannot speak for how all financiers will look at
this issue. However, the practice of applying 100% to the principle is
currently how it is being done.]{.underline}**

J-7 Sched TO-1 The notes on the schedule state that water and sewer
savings escalate at O&M savings rate. In past this has been escalated at
utility rate. Please clarify the reasoning for adjusting this utility
cost at an O&M escalation rate. **[Thank you for your comment. This
approach is consistent with the DO-1 schedule in the existing ESPC
contract.]{.underline}**

J-7 TO-2 Has single entry for Indirect Costs. Not clear what this is.
Appears to be overhead and G&A type cost. Looks like they are
essentially splitting current \"mark up\" into two distinct categories
of Overhead and Profit. Confirm definition of indirect costs. Need to
understand how it is developed, what will be allowed, etc. If it isn't a
direct cost or doesn't go here, it needs to be in profit. Please clarify
what elements make this up similar to previous B-Schedules that has
specific elements for what was included in \"Maximum Markups\" **[Thank
you for the comments. However, we don't agree with your conclusions.
Indirect costs (or overhead) in contrast with direct costs, are expenses
that have been incurred for purposes common to all projects, but which
cannot be identified and charged directly to each individual project
without an inordinate amount of tracking and accounting. These expenses
range from utilities, building maintenance and renovation to accounting,
payroll. Contractors determine what costs are accounted for as direct
and what costs are indirect. See FAR 31.202 for more information
regarding direct and indirect costs.]{.underline}**

J-7 TO-3 Indirect Cost rate (%) gets entered here. From the definition
it looks like this is overhead and G&A. Is this fixed for IDIQ or is it
determined for each TO somehow. **[The indirect cost rate will not be in
the IDIQ contract. It will be specific to each TO.]{.underline}**
Confirm definition of indirect Cost rate. Need to understand how it is
developed, what will be allowed, etc. Please clarify and provide
example. **[Indirect costs (or overhead) in contrast with direct costs,
are expenses that have been incurred for purposes common to all
projects, but which cannot be identified and charged directly to each
individual project without an inordinate amount of tracking and
accounting. These expenses range from utilities, building maintenance
and renovation to accounting, payroll. Contractors determine what costs
are accounted for as direct and what costs are indirect. See FAR 31.202
for more information regarding direct and indirect costs.]{.underline}**

J-8 J.8.2.c Weather (risk matrix). Statement that, if Agency accepts
weather risk, payments still cannot exceed savings. That implies there
is a limit to the Agency\'s risk and that the Contractor either accepts
part of it or lowers his savings guarantee enough to cover all possible
permutations. There is no mention of aggregating the variances over the
contract term. Please clarify how Agency accepts weather (or any risk
for that matter) if the rule is always that payments must not exceed
savings. Define acceptable ways to normalize as with historical
averages. **[The contractor and agency will negotiate risk allocation,
and it will be specified in the resulting TO. However, payments to the
contractor cannot exceed energy savings for that year. (See 42 USC
section 8287).]{.underline}**

J-8 R/R Matrix Agency Assessment column is currently not utilized; if it
were what the final resolution is in cases where the contractor proposed
Approach and the Agency Assessment don\'t fully agree - which one is
contractually binding? Agency Assessment should be part of the review of
the Final Proposal, not written into a contract document. Delete Agency
Assessment column (contractor proposed approach is either approved and
becomes part of the contract, or it is negotiated and modified prior to
award\" **[Thank you for your comment. We will consider making the
change.]{.underline}**

\"J-1 Definitions -- Implementation Expense \> Interaction between
implementation expense, implementation profit, direct and indirect costs
unclear. \> Clarify what level (Total or by ECM) profit/indirect is
calculated.\" **[Implementation Expenses include direct and indirect
costs. They can be determined by ECM to determine the total
implementation expense.]{.underline}**

\"J-2 - Please probide additional clarification.\" **[Sorry, there is
not enough information in this question to provide an
answer.]{.underline}**

\"J-7 TO-2 Implementation Price by ECM \\ J.13 Investor Deal Summary
(IDS) Template and M.3.2 Price criteria We have not been able to locate
or identify a pricing methodology in the DRFP. J-7 and 13 sections
indicates that that indirect and profit elements are separated and not
combined as total mark up in current contract which runs counter to
current and successful commercial practice. **[Thank you for your
comment.]{.underline}**

M.3.2 implies through FAR regulation that each agency should use its own
pricing methodology, which will create multiple processes across the
Government, reducing efficiency and consistency and adding time to the
processes. The FPCC recommends establishing a single Pricing Methodology
using the commercial pricing process in the current IDIQ that provides
markup based on technology category and its performance risk. **[Thank
you for your comment. M.3.2 is only applicable for the recompete of the
master IDIQ contract for price evaluation of proposals. Sections L and M
of the RFP will not be incorporated into the subsequent master ESPC IDIQ
contract.]{.underline}**

J-7 TO-2 indicates that indirect and profit elements are separated and
not combined as total markup in current contract. **[That is
correct.]{.underline}** J-13 section 1 indicates that indirect and
profit elements are separated and not combined as total markup in
current contract.\" **[That is correct. There is no "mark-up" in this
DRFP.]{.underline}**

\"J.8: Section 1 - M&V Confidence\
Recommend deleting. J.8.1: Responsibility for Financial related items\
There is no reference here to who is responsible for energy rates (i.e.
costs of electricity, fuels, water). It may be prudent to add a section
1 (g) to note that utility rates are beyond the control of the
Contractor or the Agency, but that the Agency typically assumes the risk
for changes in rates as they would without an ESPC project.\" **[The
contractor and agency will negotiate risk allocation, and it will be
specified in the resulting TO. However, payments to the contractor
cannot exceed energy savings for that year. (See 42 USC section
8287)]{.underline}**

\"Permits only a single Performance Period payment. Recommend revising
TO-1 to permit multiple Performance Period payments, in accordance with
intent of Section E.3.1.\" **[Thank you for your comment. We will
consider making the change.]{.underline}**

\"TC.20 Future ECMs - (not currently authorized): Sale or transfer of
electrical or thermal energy generated on-site but in excess of Federal
needs, to utilities or non-Federal energy users. 1) Revise to read
\"Sale by the Government of electrical or thermal energy generated
on-site, but in excess of Federal needs, to utlities or non-Federal
energy users.\" **[Thank you for your comment. We will consider making
the change.]{.underline}**

2\) This provision, if not authorized, would severely handicap the
development of wind energy projects. Because wind energy is an
inherently variable generation source, there will be times when wind
turbine generation output may exceed the on-site demand of the host
Government facility. Having the ability to sell this surplus power to
the grid would greatly enhance the economics of most wind projects, and
would be critical to the viability of others. In addition, many states
now have very attractive REC markets, but power might need to be sold to
the grid to take advantage of those RECs. For example, a wind project in
Maine or New Hampshire would earn far more REC income if the power were
sold to the Massachusetts market, but this would require first going out
to the grid. The provision as written is counter to the Government\'s
objectives of promoting renewable energy. There may be some concern
among utilities that the Government is going to compete with the
utilities for generation to the grid and would have an unfair advantage
in such competition. Suggest authorizing such sales.\" **[Thank you for
your comment.]{.underline}**

\"TO-5, ANNUAL CANCELLATION CEILING SCHEDULE Missing column (a)
Outstanding Capital Investment as described in J-6.1.6\" **[Thank you
for your comment. We will consider making the change.]{.underline}**

**Section K**

\"K.2 Offer Acceptance Period - Say will hold offer firm for 210 days.
Assume this is just for sample RFP response. Please clarify that this is
for the IDIQ response and not for each TO proposal. Holding prices firm
for this lengthy period drives up cycle time as well as construction
costs.\" **[This period applies to the IDIQ, and not to subsequent
TOs.]{.underline}**

\"Offer Acceptance Period 210 calendar days seems excessive for pricing
purposes.\"

**[This period applies to the IDIQ, and not to subsequent
TOs.]{.underline}**

**Section L**

\"1) Clarififcation of Page Limits\
Please clarify if there are page limits that apply to Volume II,
Component 1. Table of Contents and List of Tables and Figures, and
Volume II, Component 3. Summary of Exceptions and Deviations. **[It is
anticipated that Component 1, Table of Contents and List of Tables and
Figures, will not be included in the page limit; however, Component 3,
Technical Exceptions and Deviations would be included in the page limit.
Tab dividers are not included in the page limitations for any
section.]{.underline}** Also, are tab dividers included in any page
limitations specified for Volume II? 2) \"Part III, Technical Approach
for Renewable Projects (see Section L.10.4.)\"\
There is no Part III or Section L.10.4 in the draft. Will this reference
be omitted in the final RFP, or will a separate Technical Approach for
Renewable Projects section be included?\" **[Yes, That is our current
intent.]{.underline}**

\"1) Concern: This is the third different subcontracting requirement in
the RFP and it establishes a goal of 20% for small businesses (to
include 10% for socially and economically disadvantage firms and 10% for
women-owned firms. How do the three different sets of goals relate to
each other/ What are all of the small business subcontracting goals for
this RFP? Recommend the RFP be revised in Section H or L to show all the
subcontracting goals for this RFP in one place. **[The subcontracting
clauses that are currently in this DRFP are prescribed by the Federal
Acquisition Regulation (FAR). The FAR also prescribes the section that
the clause must be located.]{.underline}** 2) Problem: Requires the
offeror to submit a subcontracting agreement for major subcontractors
they plan to use in performance of the contract. Major subcontractor is
defined as a company performing at least \$5 million of work in any
given year. Two primary criteria for selecting subcontractors are
project scope (technology) and location. Since neither of those criteria
are known at this time it is not practical to attempt to identify
subcontractors or enter into subcontracting agreements. Previous
paragraph requires subs to be competitively selected and that also
precludes us form identifying a particular sub that will do more than
\$5 million in any given year. Recommendation: Delete the requirement
for subcontractor agreements.\" **[Thank you for your
comment.]{.underline}**

\"1) L.10.1.A.3 allows for appendices and attachments for ECMs. Are
appendices and attachments also permitted in Part II, Technical Approach
for Site-Specific Projects (L.10.1.A.2 does not specify). With regard to
appendices and attachments for ECMs, do any page limitations apply? 2)
Do the same page limitations specified in L.10.1.A.2 for Part II,
Technical Approach for Site-Specific Projects apply to Part III,
Technical Approach for Renewable Projects (i.e. 25 pages, plus 5 pages
per ECM)? 3) L.10.2.A: Past performance questionnaires are to be
returned in a sealed envelope notwithstanding the Paperwork Reduction
requirement mandates for federal agencies.\
Recommendation: Revise the language to allow questionnaires to be
returned electronically, by fax, or a hardcopy by mail.\" **[Thank you
for your comment. We will consider making a change.]{.underline}**

\"1. Page formatting and restrictions: The proposal shall be typed in
Times New Roman font type and font size 12 for text pages. Page size
shall be 8.5 x 11 inches for text pages, and a maximum of 11 x 17 inches
for spreadsheets, charts, tables, diagrams, or design drawings; font
type shall be Times New Roman and font size shall be 12 for text pages
and minimum 10 for spreadsheets, charts, tables, diagrams, or design
drawings. Pages larger than 8.5 x 11 inches shall count as two pages for
determining page limits. Page margins shall be a minimum of one inch at
the top, bottom and each side. May page headers and footers that contain
page numbering, volume identification, disclosure statements, and any
other document information/identification be outside the 1\" text
margins? Also, may page headers and footers be in a font size smaller
than Times New Roman 12 point?\" **[Yes, the page headers/footers can be
outside the 1"text margin; and may also be in a font size smaller than
Times New Roman 12 point.]{.underline}**

\"Comment: Sec. L.10.A.3 (pg. 156) - \"Part III, Technical Approach for
Renewable Projects (see Section L.10.4), shall not exceed twenty-five
(25) pages in length.\" There is no Section L.10.4 and no other
reference to \"Technical Approach for Renewable Projects.\" Please
clarify or identify where the referenced section is located.
Recommendation: Suggest DOE provide this Section for industry review and
comment.\" **[Yes, We intend to delete L.10.1.A.3 from the final
RFP]{.underline}**

\"Concern: Page limits of 50 pages for the technical proposal may be
insufficient. Per the note accompanying this paragraph the only item
exempted for the page limits is the past performance information. The
RFP will have to limit the requirements for personnel biographies
(resumes), glossaries, table of contents requirements, etc. or the 50
page maximum will not be sufficient. Technical criterion 2 requires the
offeror to demonstrate for \"each ECM technology\" listed in Attachment
J-4 except one (future ECMs) and there are 19 major ECM categories
listed. Every one of the 19 have multiple ECM technologies
sub-categories. Again, this counts against the 50 page limit.
Recommendation: Page counts should exclude personnel biographies, table
of contents, table of figures, acronyms, glossaries, and proposal
dividers (tabs). Recommend either increasing the page count if
contractors are required to provide a narrative demonstrating experience
for successfully implementing each ECM. An alternative would be to
simply provide a table for the contractor to certify each technology for
which they have experience, although this is not a very effective means
to evaluate experience and capabilities.\" **[Thank you for your
comment. We will consider making a change.]{.underline}**

\"Concern: Page limits of 50 pages for the technical proposal may be
insufficient. Per the note accompanying this paragraph the only item
exempted for the page limits is the past performance information. The
RFP will have to limit the requirements for personnel biographies
(resumes), glossaries, table of contents requirements, etc. or the 50
page maximum will not be sufficient. Technical criterion 2 requires the
offeror to demonstrate for \"each ECM technology\" listed in Attachment
J-4 except one (future ECMs) and there are 19 major ECM categories
listed. Every one of the 19 have multiple ECM technologies
sub-categories. Again, this counts against the 50 page limit.
Recommendation: Page counts should exclude personnel biographies, table
of contents, table of figures, acronyms, glossaries, and proposal
dividers (tabs). Recommend either increasing the page count if
contractors are required to provide a narrative demonstrating experience
for successfully implementing each ECM. An alternative would be to
simply provide a table for the contractor to certify each technology for
which they have experience, although this is not a very effective means
to evaluate experience and capabilities. NOTE: I believe I mixed up
comments / section #\'s in my preceding submittal - please ignore that
last one.\" **[Thanks for the follow-up.]{.underline}**

II\. PAST PERFORMANCE EVALUATION \"Please rate the contractor as
\"Unsatisfactory\" (0), \"Poor\" (1), "Fair" (2), "Good" (3),
"Excellent" (4) or \"Outstanding\" (5) (see rating definitions below) in
the following areas: EVALUATION ELEMENT (F) (U) (N)\" The evaluation
element table currently has three columns (F, U, N) for customer to
check off performance in each of the five (A - E) categories. This is
inconsistent with the requested ratings of \"0\" - \"5\" to indicate
performance ranging from \"Unsatisfactory\" to \"Outstanding\".
Recommend replacing three existing columns with a single one for
customer to fill in their \"0\" through \"5\" rating.\" **[Thank you for
your comment. We will consider making a change to be
consistent.]{.underline}**

L.10 makes mention of a L.10.4 on page 156, but there is no L.10.4. This
is significant because L.10.4 is supposed to outline the submission
criteria for Part III, which is the final part of the Technical Volume
(II). No mention of Part III is made in section M. Please clarify.\"
**[Thank you for your comment.]{.underline}** **[We intend to delete
L.10.1.A.3 along with the L.10.4 reference from the final
RFP]{.underline}**

\"L.10.1 A 3. Reference to Section L.10.4 Section L10.4 does not exist\"
**[Thank you for your comment.]{.underline}** **[We intend to delete
L.10.1.A.3 along with the L.10.4 reference from the final
RFP]{.underline}**

\"L.10.1.A.3 describes requirements for RFP response Vloume II, Part III
and refercnes section L.10.4 for futher explaination of technical
discussion.\
It seems that section L.10 ends with L.10.3 and ther eis no subsection
L.10.4\" **[Thank you for your comment.]{.underline}** **[We intend to
delete L.10.1.A.3 along with the L.10.4 reference from the final
RFP]{.underline}**

\"L.11.1 TO-2 includes indirect costs and profit margin. It\'s not clear
if this is expected to become binding %\'s offers once accepted Please
clarify L.11.1.A.3 Requires bidders to show \" a clear understanding of
contingencies\". Contingency is such a controversial subject, it should
be clarified what is expected. Please clarify L.11.2 It is unclear if
this is a firm final offer to do the work at the price quoted or just a
representation of familiarity with a broad group of technologies and the
ability to assemble a package that has positive cash flow. Please
clarify L.4.II Past performance Questionnaire includes three columns,
labeled (F), (U), and (N) with no explanation of what they mean Please
clarify **[Thank you for your comment. We intend to make a change to be
consistent with the "0" - "5" rating scale.]{.underline}** L.6 The
Sample Project, as part of the RFP response drives up proposal costs and
is not a very effective bidding mechanism. Suggest eliminating the
Sample Project\" **[No, proposed indirect costs and profit percentages
are subject to future negotiation for each Task Order.]{.underline}**

[\"1]{.mark}. Are the provisions of section L.4 required for the Master
IDIQ contract, or only for specific Task Orders which require access to
classified information or special nuclear material?
**[Sorry,]{.underline}** **[we are continuing to research an answer to
your question.]{.underline}**

**Section M**

\"Concern: The criteria is very unbalanced in that the factor with the
next to lowest factor is Past Performance, yet that one criteria
includes every other criteria being evaluated. In other words, past
performance becomes secondary to promised future performance. Past
performance records clearly reflects the offeror\'s qualifications in
the other criterion, i.e. breadth of experience in ECM technologies; the
effectiveness of the offeror\'s management approach; the ability to
develop energy baselines, and capabilities to develop meaningful M&V
plans. Recommendation: Past Performance should be weighted as heavily or
heavier than any other criterion.\" **[Thank you for your comment. We
will consider making a change.]{.underline}**

\"M.3.1.A Federal Government ESPC work is very unique and specialized.
As such past experience in with Federal agencies should be a significant
area of focus and the weighting factor should be increased from 10% to
at least 20% Recommend increasing weighting and making evaluation
consider Fed ESPC experience as a plus **[Thank you for your comment. We
will consider making a change.]{.underline}**

M.3.2 This indicates that price that will be used to determine best
value is TO-1 column F. This column includes debt service, so bidders
could simply assume ridiculously low market spreads to be competitive,
which will skew the value of this evaluation element. Consider other
suggestions as made in previous comment. **[Thank you for your comment.
We will consider making a change.]{.underline}**

M.3.2.B This section is a discussion of price as not absolute criterion
yet will not award if price premium is too high. Is price based upon
markups or upon direct costs in the proposal? **[Price is the sum of
contractor payments during the term of the task order.]{.underline}**
Also, performance period pricing needs to be clarified as to whether
looking at total costs to maintain the project, or just costs assumed by
the contractor. **[Costs assumed by the contractor.]{.underline}**
Please clarify and provide an example M.6.3 Requires that bidders be on
DOE qualified list. Recommend that NAESCO certification be a another
requirement to support the ESCOs experience and capability. Add
requirement of NAESCO certification\" **[Thank you for your comment. We
will consider making a change.]{.underline}**

\"M.3.2 Basing evaluation on an open ended scope of work, which will be
different for each response, will make it next to impossible to evaluate
the Contractor responses to the Seed project. Implicit in the values in
Column F of Schedule TO-1 are multiple components of pricing. To allow a
fair and equitable price competition, please provide additional
clarification on what it to be included in each of these components to
ensure that all bidders are pricing the same scope of work and using the
same ground rules. Absent this, price reasonableness review may yield
false or inaccurate indications of value. Also, please provide
clarification on which of these elements will be considered binding,
i.e. standard values that will be applied to all future Delivery Orders
offered by a successful ESCO bidder. **[None will be applied to future
task orders]{.underline}**• Direct Costs --with any Project based only
on information gathered from a Site Data Package and limited site tours,
there is considerable interpretation of the Site Data Package,
facilities needs and priorities, and inevitable variation in the
proposed scope of work. Therefore, it will be very difficult to review
and compare pricing across multiple bids for price reasonableness. Even
within a single bid, the price reasonableness review will be challenging
given the limited information available. Please clarify the intent of
Price review for Direct Costs and the evaluation criteria that will be
used. **[The DRFP states that price proposals should contain copies of
catalog prices, published price lists and multiple quotes for ECMs, to
support the price reasonableness of the proposal. Additionally, DOE may
use other benchmarking methodologies or engineering "rules of thumb" to
assist in determining price reasonableness.]{.underline}**\
• Indirect Cost - there is no clear definition of what price elements
are to be included as indirect costs. Every company may treat this
somewhat differently in its accounting system. How will the DOE ensure a
fair and equitable comparison on this price element? **[The total price
is the sum of contractor payments which will encompass direct, indirect
and profit.]{.underline}** • Profit Margin - there is no indication as
to whether the profit margins proposed will apply to only the Seed
Project or to all Delivery orders under this IDIQ. **[The profit
proposed on this IDIQ will not apply to any future task order. The
profit and index factors supplied are for IDIQ proposal estimating and
evaluation purposes only.]{.underline}** • Interest Expenses - since
column F is total contract payments, it includes debt service payments
(long term interest). It is not clear if or how the Government intends
to review this aspect of pricing for reasonableness and value. For a
sample project, accurate interest rate spreads will be difficult to
obtain, and bidders could offer artificially low values. **[Thank you
for your comment. We will consider making a change.]{.underline}** •
Service Phase Expenses - since column F is total contract payments, it
includes service phase expenses (for O&M services, M&V, and contract
administration) It is not clear if or how the Government intends to
review this aspect of pricing. The scope of these services varies
greatly from project to project and is best established after
considerable discussion and review of options with Site Maintenance
personnel and agency staff. It is therefore unclear how this price can
be reviewed on an equal basis for best value.\" **[DOE acknowledges that
each proposal will be unique.]{.underline}**

\"Sec.M.5 - Basis for Award - \"The Government is more concerned with
obtaining a superior Technical proposal than making an award at the
lowest price. However, the Government will not make an award at a price
premium it considers disproportionate to the benefits associated with
the evaluated superiority of on Technical proposal over another.\"
Please explain how DOE will objectively consider the price evaluation
factor? Will DOE compare overall price? or will DOE compare profit
numbers? How will DOE account for one Contractor\'s technical proposal
being different from another Contractor\'s technical proposal? It
appears reading further in this section there may be some subjectivity
to the evaluation. Please clarify how DOE will use objective criteria
for the evaluation process.\" **[DOE acknowledges that each proposal
will be unique. The DRFP states that price proposals should contain
copies of catalog prices, published price lists and multiple quotes for
ECMs, to support the price reasonableness of the proposal. Additionally,
DOE may use other benchmarking methodologies or engineering "rules of
thumb" to assist in determining price reasonableness.]{.underline}**

\"\"Each offeror will be evaluated on its expertise and experience in
each ECM technology category (TC) (except TC 19, Future ECMs) in
Attachment J-4...\" Att J-4, TC.20 is Future ECMs.\" **[Thank you for
your comment. We intend to correct the references in L.10.2.B and
M.3.1.B to refer to TC.20, Future ECMs, in accordance with Attachment
J-4.]{.underline}**