Judges: GREG ABBOTT, Attorney General of Texas
Filed Date: 9/12/2003
Status: Precedential
Modified Date: 7/6/2016
The Honorable José R. Rodriguez El Paso County Attorney 500 East San Antonio, Room 503 El Paso, Texas 79901
Re: Whether a school district's contract for "a comprehensive energy management consultation" is an energy savings performance contract under Education Code section
Dear Mr. Rodriguez:
At the request of the Ysleta Independent School District (the "YISD"), you ask whether a particular proposed contract under which the district will purchase "a comprehensive energy management consultation" would be an energy savings performance contract subject to Education Code section
You inform us that the YISD "wishes to purchase certain energy conservation services" from Energy Education, Inc., a private energy management consulting firm. Request Letter, supra note 1;see YISD contract, supra note 1, at 1. Under the proposed contract, Energy Education would agree to "conduct a comprehensive energy management consultation" for the district, and in so doing, to undertake two tasks:
1. To provide [the YISD] board and administration with an energy management program that will enable [the district] to monitor [its] energy consumption and costs through computerization and thereby reduce the district's energy consumption and utility expenditures.
2. To assist [the YISD] administration [to] account for energy . . . consumption . . . throughout [the] district. This accounting will result from [the] district's [purchase and use of] an energy accounting software program which is acceptable to Energy Education . . ., at a cost not to exceed $15,000 and annual renewals thereafter at a cost not to exceed $1,500 per year. Energy Education will provide [the district] with the support and assistance necessary . . . to implement such a program of energy accountability.
YISD contract, supra note 1, at 1. Energy Education would further contract to select two "energy educator/managers" from YISD's staff, whom, although they will remain YISD employees, Energy Education would train to adjust the district's energy management system's ("EMS") programming by, among other things, changing "the temperature settings and run times of the HVAC, boiler and all other equipment . . . [that] is controlled by the district's EMS as well as in each building's lighting, sewer and water usage, time clocks and thermostat settings [that] are not controlled by the district's EMS." Id. at 2. The energy educator/managers would also, with Energy Education's assistance, collect and record "relevant data" and "use the computer software to create and maintain the district's energy . . . and utilities . . . consumption data . . . to provide an effective monitoring system for the district's utilities consumption and costs." Id. at 3. The YISD would agree to pay a monthly fee of $43,700 for forty-eight consecutive months, although Energy Education would guarantee that the district's total savings will exceed the cost of the monthly fees. See id. at 3, 5. The contract would continue in effect after all payments are timely made without further payments to Energy Education for so long as the district . . . desires and continues to substantially implement Energy Education's energy management program. During such continuation[,] the district may use all . . . confidential items and other materials furnished to it by Energy Education and may continue to implement and utilize the energy management program.
Id. at 6.
You ask whether section
Section 44.901 authorizes a school district's board of trustees to enter "an energy savings performance contract in accordance with this section." Act of June 2, 2003, 78th Leg., R.S., H.B. 2425, § 5 (to be codified at Tex. Educ. Code Ann. §
(1) insulation of a building structure and systems within the building;
(2) storm windows or doors, caulking or weatherstripping, multiglazed windows or doors, heat absorbing or heat reflective glazed and coated window or door systems, or other window or door system modifications that reduce energy consumption;
(3) automatic energy control systems, including computer software and technical data licenses;
(4) heating, ventilating, or air-conditioning system modifications or replacements that reduce energy or water consumption;
(5) lighting fixtures that increase energy efficiency;
(6) energy recovery systems;
(7) electric systems improvements;
(8) water-conserving fixtures, appliances, and equipment or the substitution of non-water-using fixtures, appliances, and equipment;
(9) water-conserving landscape irrigation equipment;
(10) landscaping measures that reduce watering demands and capture and hold applied water and rainfall. . . ;
(11) rainwater harvesting equipment and equipment to make use of water collected as part of a storm-water system installed for water quality control;
(12) equipment for recycling or reuse of water originating on the premises or from other sources. . . ;
(13) equipment needed to capture water from nonconventional, alternate sources, including air conditioning condensate or graywater, for nonpotable uses;
(14) metering equipment needed to segregate water use in order to identify water conservation opportunities or verify water savings; or
(15) other energy or water conservation-related improvements or equipment. . . .
Id. (to be codified at Tex. Educ. Code Ann. §
The issue you raise is whether, for purposes of section 44.901, an energy savings performance contract includes only contracts for the installation or implementation of improvements or equipment, or whether it also encompasses contracts solely for services. See id. (to be codified at Tex. Educ. Code Ann. §
The term "energy savings performance contract" is defined to mean only "a contract for energy or water conservation measures." Act of June 2, 2003, 78th Leg., R.S., H.B. 2425, § 5 (to be codified at Tex. Educ. Code Ann. §
Given the ambiguity of the word "measures," the second sentence of the definition serves to narrow the definition's scope to contracts that involve the installation or implementation of an improvement or equipment only, such as those listed in subsections (1) through (15). See Act of June 2, 2003, 78th Leg., R.S., H.B. 2425, § 5 (to be codified at Tex. Educ. Code Ann. §
Accordingly, for a contract to be an energy savings performance contract under section 44.901, it must be a contract for the installation or implementation of improvements or equipment intended "to reduce energy or water consumption or operating costs of school facilities" and "the estimated savings [must be] guaranteed to offset the cost." Act of June 2, 2003, 78th Leg., R.S., H.B. 2425, § 5 (to be codified at Tex. Educ. Code Ann. §
Whether the proposed YISD contract is solely a contract for services that is not subject to section 44.901 is a question of fact that cannot be determined in the opinion process. To the extent that it is an energy savings performance contract and therefore subject to section
Very truly yours,
GREG ABBOTT Attorney General of Texas
BARRY R. McBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General — General Counsel
NANCY S. FULLER Chair, Opinion Committee
Kymberly K. Oltrogge Assistant Attorney General, Opinion Committee