Tex. Gov't Code Section 2166.406
Energy Savings Performance Contracts


(a)

In this section, “energy savings performance contract” has the meaning assigned by Section 302.001 (Definitions), Local Government Code.

(b)

Notwithstanding any other provision of this chapter, a state agency, without the consent of the commission, may enter into an energy savings performance contract in accordance with this section.

(c)

Each energy or water conservation measure must comply with current local, state, and federal construction, plumbing, and environmental codes and regulations. Notwithstanding Subsection (a), an energy savings performance contract may not include improvements or equipment that allow or cause water from any condensing, cooling, or industrial process or any system of nonpotable usage over which the public water supply system officials do not have sanitary control to be returned to the potable water supply.

(d)

A state agency may enter into energy savings performance contracts only with a person who is experienced in the design, implementation, and installation of the energy or water conservation measures addressed by the contract.

(e)

Before entering into an energy savings performance contract, a state agency shall require the provider of the energy or water conservation measures to file with the agency a payment and performance bond relating to the installation of the measures in accordance with Chapter 2253 (Public Work Performance and Payment Bonds). The agency may also require a separate bond to cover the value of the guaranteed savings on the contract.

(f)

The state agency may enter into an energy savings performance contract for a period of more than one year only if the state agency finds that the amount the state agency would spend on the energy or water conservation measures will not exceed the amount to be saved in energy, water, wastewater, and operating costs over 20 years from the date of installation.

(f-1)

Notwithstanding other law, the state agency may use any available money to pay the provider of the energy or water conservation measures under this section, and the state agency is not required to pay for such costs solely out of the savings realized by the state agency under an energy savings performance contract. The state agency may contract with the provider to perform work that is related to, connected with, or otherwise ancillary to the measures identified in the scope of an energy savings performance contract.

(g)

An energy savings performance contract with respect to buildings or facilities may be financed:

(1)

under a lease/purchase contract that has a term not to exceed 20 years from the final date of installation and that meets federal tax requirements for tax-free municipal leasing or long-term financing, including a lease/purchase contract under the master equipment lease purchase program administered by the Texas Public Finance Authority under Chapter 1232 (Texas Public Finance Authority);

(2)

with the proceeds of bonds; or

(3)

under a contract with the provider of the energy or water conservation measures that has a term not to exceed the lesser of 20 years from the final date of installation or the average useful life of the energy or water conservation or usage measures.

(h)

An energy savings performance contract shall contain provisions requiring the provider of the energy or water conservation measures to guarantee the amount of the savings to be realized by the state agency under the contract. If the term of the contract exceeds one year, the agency’s contractual obligation, including costs of design, engineering, installation, and anticipated debt service, in any one year during the term of the contract beginning after the final date of installation may not exceed the total energy, water, wastewater, and operating cost savings, including electrical, gas, water, wastewater, or other utility cost savings and operating cost savings resulting from the measures, as determined by the state agency in this subsection, divided by the number of years in the contract term.

(i)

An energy savings performance contract shall be let according to the procedures established for procuring certain professional services by Section 2254.004 (Contract for Professional Services of Architect, Engineer, or Surveyor). Notice of the request for qualifications shall be given in the manner provided by Section 2156.002 (Solicitation of Bids Through Public Notice). The State Energy Conservation Office shall establish guidelines and an approval process for awarding energy savings performance contracts. The guidelines adopted under this subsection must require that the cost savings projected by an offeror be reviewed by a licensed professional engineer who has a minimum of three years of experience in energy calculation and review, is not an officer or employee of an offeror for the contract under review, and is not otherwise associated with the contract. In conducting the review, the engineer shall focus primarily on the proposed improvements from an engineering perspective, the methodology and calculations related to cost savings, increases in revenue, and, if applicable, efficiency or accuracy of metering equipment. An engineer who reviews a contract shall maintain the confidentiality of any proprietary information the engineer acquires while reviewing the contract. An energy savings performance contract may not be entered into unless the contract has been approved by the State Energy Conservation Office. Sections 1001.053 (Public Works) and 1001.407 (Construction of Certain Public Works), Occupations Code, apply to work performed under the contract.

(j)

The legislature shall base an agency’s appropriation for energy, water, and wastewater costs during a fiscal year on the sum of:

(1)

the agency’s estimated energy, water, and wastewater costs for that fiscal year; and

(2)

if an energy savings performance contract is in effect, the agency’s estimated net savings resulting from the contract during the contract term, divided by the number of years in the contract term.

(k)

Chapter 2269 (Contracting and Delivery Procedures for Construction Projects) does not apply to this section.

(l)

The guidelines adopted under Subsection (i) must require the State Energy Conservation Office to:

(1)

review any reports submitted to the office that measure and verify cost savings to a state agency under an energy savings performance contract; and

(2)

based on the reports, provide an analysis, on a periodic basis, of the cost savings under the energy savings performance contract to the state agency and the Legislative Budget Board until the state agency determines that the analysis is no longer required to accurately measure cost savings.
Added by Acts 1997, 75th Leg., ch. 1142, Sec. 3, eff. June 19, 1997. Amended by Acts 1999, 76th Leg., ch. 361, Sec. 3, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 573, Sec. 9, 13, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1319, Sec. 3, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1310, Sec. 58, 121(14), eff. June 20, 2003.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 527 (S.B. 831), Sec. 3, eff. June 16, 2007.
Acts 2011, 82nd Leg., R.S., Ch. 982 (H.B. 1728), Sec. 4, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1129 (H.B. 628), Sec. 3.03, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 161 (S.B. 1093), Sec. 22.002(10), eff. September 1, 2013.
Acts 2013, 83rd Leg., R.S., Ch. 537 (S.B. 533), Sec. 2, eff. June 14, 2013.
Acts 2017, 85th Leg., R.S., Ch. 258 (H.B. 1571), Sec. 3, eff. May 29, 2017.

Source: Section 2166.406 — Energy Savings Performance Contracts, https://statutes.­capitol.­texas.­gov/Docs/GV/htm/GV.­2166.­htm#2166.­406 (accessed Mar. 23, 2024).

2166.001
Definitions
2166.002
Applicability of Chapter
2166.003
Exceptions
2166.004
Additional Exceptions
2166.005
Commission Participation in Other Building Projects
2166.006
Legal Representation of Commission
2166.007
Venue
2166.051
Administering Agency
2166.052
Acquisition and Disposition of Property
2166.053
Contract Authority
2166.054
Title to and Control of Buildings
2166.055
Eminent Domain
2166.056
Grant of Easement, Franchise, License, or Right-of-way
2166.057
Coordination of Multiagency Projects
2166.058
Assistance by Other Agencies
2166.059
Assignment of Commission Employee to Other Agency
2166.060
Site Selection and Construction in Texas Municipalities
2166.061
General Commission Oversight During Construction
2166.062
Rulemaking Authority
2166.063
Federal Requirements
2166.101
Compilation of Construction and Maintenance Information
2166.102
Long-range Plan for State Agency Space Needs
2166.103
Findings on Space Needs
2166.105
Capitol Complex Master Plan
2166.106
Review of Proposed Capitol Complex Master Plan by Partnership Advisory Commission
2166.107
Comprehensive Planning and Development Process
2166.108
Comprehensive Capital Improvement and Deferred Maintenance Plan
2166.151
Using Agency’s General Project Description
2166.152
Preparation of Project Analysis
2166.153
Contents of Project Analysis
2166.154
Use of Project Analysis or Cost Estimate in Appropriations Process
2166.155
Estimate of Project Costs in Lieu of Project Analysis
2166.156
Preparation of Preliminary and Working Plans and Specifications
2166.157
Accounting for Project Analysis Expenses
2166.202
Selection of Private Design Professional
2166.203
Interview Notification to Private Design Professional
2166.204
Using Agency Recommendations
2166.205
Compensation of Private Design Professional
2166.206
Information Furnished by State
2166.251
Legislative Authorizations and Appropriations
2166.252
Modifying Project to Conform to Appropriations
2166.253
Lowest and Best Bid Method
2166.254
Review of Certain Bids by Historical Commission
2166.255
Amount of Contract
2166.256
Acquisition of Items Not Furnished Under Construction Contract
2166.257
Contract Payment Administration
2166.258
Common Surety or Insurer
2166.259
Small Contractor Participation Assistance Program
2166.260
Approval of Certain Expenditures Required
2166.301
Exceptions
2166.302
Adoption of Conditions
2166.303
Uniform Trench Safety Conditions
2166.304
Pre-bid Conference
2166.305
Review of Uniform General Conditions
2166.351
Definitions
2166.352
Categories of Inspection
2166.353
Detailed Inspection
2166.354
General Inspection
2166.355
Professional Inspection
2166.356
Final Inspection
2166.401
Evaluation of Energy Alternatives
2166.402
Energy or Water Conservation Standards for Entities Otherwise Excluded from Chapter
2166.403
Alternative Energy and Energy-efficient Architectural and Engineering Design in New Building Construction
2166.404
Xeriscape on New Construction
2166.405
Xeriscape Phase-in
2166.406
Energy Savings Performance Contracts
2166.408
Evaluation of Architectural and Engineering Design Alternatives
2166.451
Acquisition of Historic Structures
2166.452
Acquisition of Existing Building as Alternative to New Construction
2166.453
Acquisition of Real Property as Alternative to Leasing Space
2166.454
Purchasing or Obtaining More Favorable Lease with Option to Purchase Agreements with Regard to Certain Leased Space
2166.501
Monuments and Memorials
2166.502
Contracts with Texas Historical Commission
2166.503
Acquisition of Archaeological, Paleontological, and Historic Sites
2166.551
Child Care Facility in State Building
2166.552
Fine Arts Projects
2166.553
Acquisition and Construction of Buildings for Health and Human Services Agencies
2166.554
Lease of Federal Property for Department of Public Safety
2166.1065
Review of Capitol Complex Master Plan by State Preservation Board and General Land Office
2166.2525
Determination of Contracting Method
2166.2551
Contract Notification
2166.4541
Entering into More Favorable Lease with Option to Purchase Agreements
2166.4542
Purchasing Certain Leased Space
2166.5011
Removal, Relocation, or Alteration of a Monument or Memorial

Accessed:
Mar. 23, 2024

§ 2166.406’s source at texas​.gov