Mississippi Administrative Code › Title 6 - Economic Development › Part 3 - Energy › Chapter 4 - Energy Savings Performance Contracting Policies and Procedures › Rule 6-3-4.13 - ESPC Issuance and Approval Process

Current through June 25, 2024
(A) Any entity
				desiring to enter into a contract for energy efficiency equipment, services
				relating to the installation, operation or maintenance of equipment, or
				improvements reasonably required to existing or new equipment and existing or
				new improvements and facilities on a shared savings basis or performance
				contracting basis, shall issue a Request for Qualifications (RFQ) in the manner
				prescribed in Section
				31-7-14(1)
				(b) of the Mississippi Code of 1972, as
				amended. It is recommended that the entity use the RFQ template located in the
				MDA Energy Savings Performance Contracting Manual.
(B) The entity shall notify the MDA-ENRD in
				writing in advance of its determination to issue an RFQ to develop an Energy
				Saving Performance Contract or a Shared Savings Contract project.
(C) The entity may request, at its
				discretion, that the MDA-ENRD reviews its RFQ before it is published, but if
				not, the RFQ must be forwarded to MDA after it has been published.
(D) Any entity intending to contract for a
				shared savings or energy saving performance contract for energy services must
				advertise once each week for two (2) consecutive weeks in a regular newspaper
				published in the county or municipality in which such entity is located. On the
				same date that the notice is submitted to the newspaper for publication, the
				agency or governing authority involved shall mail written notice to or provide
				electronic notification to the main office of the Mississippi Procurement
				Technical Assistance Program under the Mississippi Development Authority that
				contains the same information as that in the published notice.
(E) The MDA-ENRD shall review each contract
				pursuant to code 31-7-14 (4) (b) and approve those it determines to be in
				compliance with the code, this policy, and these guidelines.
(F) No energy saving performance contract or
				shared savings contract shall be valid until approved by the MDA-ENRD in
				writing.
(G) The MDA-ENRD will not
				approve any energy saving performance contract or shared savings contract that
				does not generate verified quantifiable and measurable energy and/or operating
				costs savings as defined above.
(H) Project documentation must be submitted
				to the MDA-ENRD for review and comment. The documents to be submitted include:
				1) Technical Energy Analysis; 2) final contract, and 3) Measurement and
				Verification (M&V) Plan. If any of the above listed documents are not
				submitted together, MDA-ENRD will not accept the project and will send a letter
				to the governmental entity to inform them that the review process will not
				begin until all required documents are submitted.
(I) Contracts submitted to MDA-ENRD shall be
				signed by both parties. Unsigned or partially signed contracts will be returned
				to the governmental entity. The governmental entity shall submit documentation
				of board or council approval of the submittal of the proposed project to
				MDA-ENRD for review with the project packet.
(J) The use of a 3rd party engineer or
				engineering firm to specifically review M&V is a requirement for state
				agencies with energy savings performance contracts. Third party review is
				optional for other public entities, but it is highly recommended. The third
				party reviewer must be chosen by the entity without input from the ESCO. The
				3rd party reviewer must be neutral and the review of M&V must be paid out
				of the savings, not paid by the ESCO or the governmental entity.
(K) The Technical Energy Analysis must be
				signed and stamped by a professional engineer registered and licensed to
				practice in Mississippi.
(L) The
				MDA-ENRD initial review process will begin and commence immediately upon
				receiving a complete set of documents in our office or via email. MDA-ENRD will
				send written correspondence to the governmental entity acknowledging receipt of
				review documents.
(M) MDA-ENRD
				will attempt to complete review within forty-five (45) days of receipt of a
				complete package as outlined in (viii) above; however, this is heavily
				dependent on the responsiveness of the entity and ESCO to questions posed
				throughout the review process.
(N)
				The entity will be provided in writing any questions and comments raised by the
				MDA-ENRD during its review process. The entity will be required to respond to
				these questions and comments in writing within ten (10) business days. Although
				it is the intent of MDA-ENRD to work with an entity to resolve any issues in a
				timely manner, if MDA-ENRD has not received a response from a review report
				after fourteen (14) business days, a decision on the remaining issues will be
				made based on the latest available data.
(O) Direct communication (i.e., meetings,
				phone conferences, etc.) with the third party is acceptable - only with the
				governmental entities written consent and if it will be beneficial to clarify
				or resolve any issues that may arise during the resolution process.
(P) Upon completion of the review process,
				the MDA-ENRD will issue a letter signed by the MDA-ENRD director, indicating
				approval or denial of the proposed project. The final contract shall be
				approved by MDA-ENRD, in accordance with 31-7-14 (4) (b) of the Mississippi
				Code of 1972, as amended.
(Q) If a
				project is denied, a letter will be issued indicating the project failed to
				meet 31-7-14 of the Mississippi Code of 1972, as amended, and/or the policy and
				procedures as set forth in the Mississippi Performance Contracting Policy and
				Procedures Manual. A denial letter will end the review process of the proposed
				project. A governmental entity must restart the performance contracting project
				process
(see AppendixA-3)
if it is still interested in an
				ESPC.
(R) Appeals Process:
				Entities will be given ample opportunity to provide explanations to questions
				from MDA-ENRD in an attempt to reach a favorable conclusion during the review
				process. A final determination will stand unless the entity can substantiate
				that MDA-ENRD did not follow 31-7-14 of the Mississippi Code of 1972, as
				amended, and/or the policy and procedures as set forth in the Mississippi
				Performance Contracting Policy and Procedures Manual. In the event that the
				entity believes MDA-ENRD failed to follow the Section
				31-7-14
				or the policies and procedures of this program, the entity will send a letter
				to the MDA executive director documenting its reasons that the law and/or
				policies were not followed. The MDA executive director, or his designee, will
				make a decision as to whether to re-open the review process or to affirm the
				decision by MDA-ENRD. The executive director, or his designee, can only reopen
				the review process if there is clear documented evidence that the law or
				policies were not followed.
(S)
				Annual Energy Savings Reports are also required and must be submitted to the
				MDA-ENRD within 60 days of the date the reports are received by the entity. It
				is the responsibility of the ESCO to submit the annual reports to MDA-ENRD.
Miss. Code Ann. §
										31-7-14
				  (Rev. 2015).