[Code of Federal Regulations] [Title 10, Volume 3] [Revised as of January 1, 2004] From the U.S. Government Printing Office via GPO Access [CITE: 10CFR436.33] [Page 427-428] TITLE 10--ENERGY CHAPTER II--DEPARTMENT OF ENERGY PART 436_FEDERAL ENERGY MANAGEMENT AND PLANNING PROGRAMS--Table of Contents Subpart B_Methods and Procedures for Energy Savings Performance Contracting Sec. 436.33 Procedures and methods for contractor selection. (a) Competitive selection. Competitive selections based on solicitation of firms are subject to the following procedures-- (1) With respect to a particular proposed energy cost savings performance project, Federal agencies shall publish a Commerce Business Daily notice which synopsizes the proposed contract action. (2) Each competitive solicitation-- (i) Shall request technical and price proposals and the text of any third-party financing agreement from interested firms; (ii) Shall consider DOE model solicitations and should use them to the maximum extent practicable; (iii) May provide for a two-step selection process which allows Federal agencies to make an initial selection based, in part, on proposals containing estimated energy cost savings and energy unit savings, with contract award conditioned on confirmation through a detailed energy survey that the guaranteed energy cost savings are within a certain percentage (specified in the solicitation) of the estimated amount; and (iv) May state that if the Federal agency requires a detailed energy survey which identifies life cycle cost effective energy conservation measures not in the initial proposal, the contract may include such measures. (3) Based on its evaluation of the technical and price proposals submitted, any applicable financing agreement (including lease- acquisitions, if any), statements of qualifications submitted under Sec. 436.32 of this subpart, and any other information determines to be relevant, the Federal agency may select a firm on a qualified list to conduct the project. (4) If a proposed energy cost savings project involves a large facility with too many contiguously related buildings and other structures at one site for proposing firms to assume the costs of a preliminary energy survey of all such structures, the Federal agency-- (i) May request technical and price proposals for a representative sample of buildings and other structures and may select a firm to conduct the proposed project; and (ii) After selection of a firm, but prior to award of an energy savings performance contract, may request the selected firm to submit technical and price proposals for all or some of the remaining buildings and other structures at the site and may include in the award for all or some of the remaining buildings and other structures. (5) After selection under paragraph (a)(3) or (a)(4) of this section, but prior to award, a Federal agency may require the selectee to conduct a detailed [[Page 428]] energy survey to confirm that guaranteed energy cost savings are within a certain percentage (specified in the solicitation) of estimated energy cost savings in the selectee's proposal. If the detailed energy survey does not confirm that guaranteed energy savings are within the fixed percentage of estimated savings, the Federal agency may select another firm from those within the competitive range. (b) Unsolicited proposals. Federal agencies may-- (1) Consider unsolicited energy savings performance contract proposals from firms on a qualified contractor list under this subpart which include technical and price proposals and the text of any financing agreement (including a lease-acquisition) without regard to the requirements of 48 CFR 15.602 and 15.602-2(a)(1); 48 CFR 15.603; and 48 CFR 15.607(a), (a)(2), (a)(3), (a)(4) and (a)(5). (2) Reject an unsolicited proposal that is too narrow because it does not address the potential for significant energy conservation measures from other than those measures in the proposal. (3) After requiring a detailed energy survey, if appropriate, and determining that technical and price proposals are adequate, award a contract to a firm on a qualified contractor list under this subpart on the basis of an unsolicited proposal, provided that the Federal agency complies with the following procedures-- (i) An award may not be made to the firm submitting the unsolicited proposal unless the Federal agency first publishes a notice in the Commerce Business Daily acknowledging receipt of the proposal and inviting other firms on the qualified list to submit competing proposals. (ii) Except for unsolicited proposals submitted in response to a published general statement of agency needs, no award based on such an unsolicited proposal may be made in instances in which the Federal agency is planning the acquisition of an energy conservation measure through an energy savings performance contract. (c) Certified cost or pricing data. (1) Energy savings performance contracts under this part are firm fixed-price contracts. (2) Pursuant to the authority provided under section 304A(b)(1)(B) of the Federal Property and Administrative Services Act of 1049, the heads of procuring activities shall waive the requirement for submission of certified cost or pricing data. However, this does not exempt offerors from submitting information (including pricing information) required by the Federal agency to ensure the impartial and comprehensive evaluation of proposals. [60 FR 18334, Apr. 10, 1995, as amended at 65 FR 39786, June 28, 2000]