HomeMy WebLinkAboutRes 2009-03 Amend Regs 3AAC106-108-Aug2009***~IDE""
.....A.,. .....A.,. Alaska Industrial Development ~ W and Export Authority
TO: Board of Directors
Alaska Energy Authority
FROM:_n~G~~e Haagenson 1v · ~xecutive Director
DATE: D August13,2009
MEMORANDUM
SUBJECT: Resolution No. 2009-03 Adoption AEA Regulations
/-?ALASKA
-~'' ~ ENERGY AUTHORITY
Resolution No. 2009-03 adopts the amended regulations attached as Exhibit A to the resolution.
These amended regulations revise Alaska Administrative Code Title 3, chapters 106, 107, and 108,
relating to loan and grant programs of the Alaska Energy Authority (AEA or Authority) and to
financial technical assistance from the Authority for energy systems, facilities, and equipment.
AEA widely distributed notice of the proposed revisions. Formal Notice of the proposed regulations,
including the opportunity to comment on the proposed regulations and the scheduled hearing was
published in the Anchorage Daily News on July 2, 2009. In addition, advertisements for the hearing
and the opportunity to comment were placed in the Fairbanks Daily News-Miner, the Peninsula
Clarion, the Nome Nugget, the Kodiak Daily Mirror, and the Juneau Empire during the week of July
2, 2009. AEA also emailed the notice to all individuals and entities that expressed an interest in
being notified when changes were proposed to the Renewable Energy Fund; it was also provided to
all legislators, and the House and Senate Community & Regional Affairs Committees and to the
House and Senate Labor & Commerce Committees, the Regulations review attorneys for the
Department of Law, to the members of the Renewable Energy Fund Advisory Committee and to
other interested individuals, and it was posted on AEA's website and on the State of Alaska Online
Public Notice System. A public hearing was held on the proposed regulations on July 2, 2009 from
2pm-5pm. The public comment period closed on August4, 2009.
AEA received a total of four comments on the proposed regulations (all written), three from citizens
(see attached comments), and one from the Legislative Affairs Agency. The comments from the
Legislative Affairs Agency are confidential under AS 40.25.120(b)(11), and are provided to the board
under separate cover. Any board discussion of these comments should take place in executive
session. The comments from the regulations attorney were technical suggestions dealt with by Mike
Mitchell, Assistant Attorney General from the Department of Law for AEA. The regulations were
revised accordingly.
AEA staff may propose to the board a few minor changes to the attached regulations which are still
being considered by the staff. The most significant of these are possibly re-adding a section
providing a process for reconsideration of rejected applications (3 AAC 107.650); possibly stating in
the list of evaluation criteria that certain criteria "may" be considered, rather than stating that all listed
criteria "shall" be considered (3 AAC 107.655); and/or possibly revising, in the list of evaluation
criteria, the description of the "statewide balance" criterion (3 AAC 1 07.655). We will distribute to the
board any recommended changes to the attached draft before the board meeting.
Staff recommends approval of Resolution No. 2009-03.
813 West Northern Lights Boulevard • Anchorage, Alaska 99503-2495
www.aidea.org • 907/771-3000 • FAX 907/771-3044 • Toll Free (Alaska Only) 888/300-8534 • www.akenergyauthority.org
ALASKA ENERGY AUTHORITY
RESOLUTION NO. 2009-03
RESOLUTION OF THE ALASKA ENERGY
AUTHORITY RELATING TO THE ADOPTION OF
NEW REGULATIONS AND AMENDMENTS TO
THE AUTHORITY'S EXISTING REGULATIONS
WHEREAS, pursuant to AS 44.83.080 the Alaska Energy Authority (the
"Authority") may adopt regulations to carry out the purposes of AS 44.83 and AS 42.45;
WHEREAS, AS 42.45.045(d)(1) provides that the Authority shall adopt
regulations relating to the renewable energy grant fund and recommendation program
containing specified evaluation criteria;
WHEREAS, staff of the Authority has proposed that the Authority's regulations
be amended as set forth in Exhibit "A" attached to this resolution (the "Regulation
Amendments");
WHEREAS, the Authority has complied with all of the provisions of AS 44.62
concerning the adoption by the Authority of this regulation; and
WHEREAS, the staff of the Authority has reported to this board the nature and
content of the comments received from the public with respect to the Regulation
Amendments and the Authority has considered these comments; and
WHEREAS, it is in the best interest of the Authority that the Regulation
Amendments be adopted.
NOW THEREFORE, BE IT RESOLVED BY THE ALASKA ENERGY
AUTHORITY AS FOLLOWS:
Section 1. In accordance with AS 44.83.080 and AS 42.45.045(d)(1) the
Authority hereby adopts the Regulation Amendments.
AEA Resolution No. 2009~03
Section 2. The Chairman of the Authority is hereby authorized, in accordance
with AS 44.83.080, to provide notice of the adoption of the Regulation Amendments to
the Chairman of the Administrative Regulation Review Committee.
Section 3. The Executive Director of the Authority is hereby authorized to
take such actions necessary to finalize the regulation amendments contemplated
in this resolution including, without limitation, executing an adoption order on
behalf of the Authority and taking such actions as may be necessary to facilitate
the filing of the amendments with the office of the Lieutenant Governor.
DATED at Anchorage, Alaska, this 131h day of August 2009 .
. '· '. ,,. · .. , . .. . . .
(SEAL)
ATTEST
Secretary
AEA Resolution No. 2009-03
Register_, ___ 2009 COMMERCE, COMMUNITY, AND EC. DEV.
3 AAC I 06.120(a)(2)(A)(vi) is repealed:
(vi) repealed I I ; ----
(Eff. 2116196, Register 137; am _1_1 __ , Register____)
Authority: AS 42.45.010 AS 44.83.080
3 AAC 106.300(3) is amended to read:
(3) written endorsement from the governing body of each [TI-IE] community for
which a bulk fuel loan is sought, if the applicant is a person generating power or selling fuel in
the community;
(Eff. 2/16196, Register 137; am 3/2512005, Register 173; am _1_1 __ , Register____)
Authority: AS 42.45.250 AS 44.83.080
3 AAC 106.310(4) is amended to read:
( 4) the amount of the loan, added to the amounts of all other bulk fuel loans to
the same borrower in the same fiscal year, may not exceed $750,000, or, if the borrower is a
cooperative corporation organized under AS 10.15 or au electric cooperative organized
under AS 10.25 and uses the loan to purchase bulk fuel on behalf of more than one
community, may not exceed the lesser of $750,000 multiplied by the number of eligible
communities on whose behalf the bulk fuel is to be purchased, or $1,800,000 [$300,000].
(Eff. 2/16196, Register 137; am 312512005, Register 173; am _1_1 __ , Register____)
Authority: AS 42.45.250 AS 44.83.080
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3 AAC I 06.900 is amended by adding new subsections to read:
(d) In AS 42.45.010, "independent power producer" means a corporation, person,
agency, authority, or other legal entity or instrumentality, that is not an electric utility and that
owns or operates a facility for the generation or production of energy entirely for use by the
residents of one or more municipalities or unincorporated communities recognized by the
Department of Commerce, Community, and Economic Development for community revenue
sharing under AS 29.60.850-29.60.879 and 3 AAC 180.
(e) In AS 42.45.010 and this chapter, unless the context requires otherwise, "electric
utility" has the meaning given the term "public utility" in AS 42.05.990(4)(A). (Eff. 2/16/96,
Register 137; am_/_/ __ , Register_____]
Authority: AS 42.45.010 AS 44.83.080
3 AAC I 07 is amended by adding new sections to read:
Article 4. Renewable Energy Grant Program.
Section
600. Purpose
605. Public purpose requirements of renewable energy grants
610. Eligible applicants
615. Eligible project
620. Public notice of application period; solicitation of grant applications
625. Grant applications
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630. Disclosure of applications and other materials submitted to the authority; confidentiality
635. Acceptance of applications for consideration; eligibility review
645. Feasibility and public benefit review of grant applications
655. Evaluation of grant applications
660. Ranking of applications
670. Additional information from applicant or grantee
675. Grant agreement
680. Grant closeout; return of unexpended grant money
685. Project operations and maintenance reporting
690. Dispute resolution
695. Definitions for AS 42.45.045 and 3 AAC 107.600-3 AAC 107.695
3 AAC 107.600. Purpose. The purpose of3 AAC 107.600-3 AAC 107.695 is to
establish procedures and criteria for grant applications, the evaluation of applications,
recommendations to the legislature for the award of grants, and the administration of grants from
the renewable energy grant fund under AS 42.45.045. (Eff. _/_/ __ ,Register ___j
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.605. Public purpose requirements of renewable energy grants. The
authority may take actions it determines are appropriate to protect the public purpose of
renewable energy grants and the public interest in and benefit from the use of grant funds,
including
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(1) limiting recommendations for grants to preliminary development phases, until
the authority determines that subsequent phases are feasible, will result in sufficient benefit to
the public, and are otherwise appropriate for grants;
(2) seeking repayment of some or all of a grant if the grantee fails to comply with
the terms and conditions of the grant or, without the prior approval of the authority, sells,
conveys, or encumbers a project constructed with renewable energy grant money;
(3) requiring review and approval by the Regulatory Commission of Alaska or, if
the Regulatory Commission of Alaska does not have or exercise jurisdiction, review and
approval by the authority, of rates charged for the use of assets funded in whole or in part with a
renewable energy grant and for energy generated by those assets;
( 4) determining whether an applicant that is not a governmental entity and not a
utility regulated by the Regulatory Commission of Alaska will own and operate the project in a
manner that will provide sufficient public benefit to support a recommendation under
AS 42.45.045 and 3 AAC 107.600-3 AAC 107.695 for a grant; in making a determination
under this paragraph, the authority will consider the applicant's previous experience, its
ownership and financial resources, proposed financial oversight, and other factors relevant to the
analysis of public benefit. (Eff. _/_/___, Register ______)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.610. Eligible applicants. (a) To apply for a renewable energy grant, a
person must
(1) be an eligible applicant within the meaning given in AS 42.45.045(1); and
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(2) demonstrate, to the satisfaction of the authority and subject to (b) of this
section, that the applicant will
(A) own the renewable energy project;
(B) own, lease, or otherwise control the site upon which the project is
located; and
(C) upon completion of the project, operate and maintain it for its
economic life for the benefit of the public.
(b) The authority may authorize conveyance of an ownership interest or of operations or
maintenance responsibilities if the authority determines that the conveyance protects the public
interest in and benefit from the grant. (Eff. I I , Register___) ----
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.615. Eligible projects. (a) A project that meets the requirements of
AS 42.45.045(f)-(h) is eligible for a renewable energy grant.
(b) For purposes of AS 42.45 .045(f)(2)(B), a project is a direct use of renewable energy
resources if it uses renewable energy resources to generate energy or to make a fuel used to
generate energy. (Eff. _1_1 __ , Register___)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.620. Public notice of application period; solicitation of grant
applications. (a) The authority will provide public notice of the application period by
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publishing notice on the authority's website and on the Alaska Online Public Notice System
established under AS 44.62.175.
(b) The authority will publish on its website a request for grant applications that includes
the date, time, place, and method for delivering applications, and a description of the application
requirements. (Eff. _/_/ __ , Register_)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.625. Grant applications. (a) An applicant must submit an application to
the authority within the time specified in the request for applications with the documentation and
in the format required in the request for grant applications. The application must include
(1) information showing to the satisfaction of the authority that the applicant is an
eligible applicant within the meaning given in AS 42.45.045(1) and under 3 AAC 107.610;
(2) information showing to the satisfaction of the authority that the project is
eligible under AS 42.45.045(£)-(h) and 3 AAC 107.615;
(3) information showing to the satisfaction of the authority that the project is
technically and economically feasible;
(4) a description of the public benefit from the project;
(5) a description of the project scope of work, schedule, milestones, and budget;
the description must include an estimate of total project costs, the amount of grant money
requested, and identification of other money or resources that are committed to the purposes of
the grant;
(6) a description of the applicant's financial resources and financial capability of
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developing the project, including matching resources and other financing necessary for project
development; and·
(7) additional information as required in the request for grant applications or
under 3 AAC 107.670.
(b) As it considers necessary to obtain complete or additional information, the authority
will require applicants, including applicants who have previously received grants for preliminary
development phases or partial grants, to submit new applications for each solicitation to which
the applicants are responding. (Eff. _/_/ __ , Register _)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.630. Disclosure of applications and other materials submitted to the
authority; confidentiality. (a) A grant application and other materials submitted to the
authority under AS 42.45.045 and 3 AAC 107.600-3 AAC 107.695 are subject to disclosure
under AS 40.25.100-40.25.295 (Alaska Public Records Act) and 2 AAC 96, unless the authority
determines that the material is protected from disclosure under AS 40.25.120.
(b) A person submitting a grant application or other material under AS 42.45.045 and
3 AAC 107.600-3 AAC 107.695 may request that the authority keep certain information
confidential. The request must
(I) clearly designate the specific information to be kept confidential; and
(2) specifically describe the basis for asserting that the information is protected
from disclosure under AS 40.25.120; if the person believes the information is protected as a trade
secret or business proprietary information, the description must include analysis of whether the
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person's commercial privacy interest in protecting the information from disclosure outweighs the
public interest in obtaining the information.
(c) If the authority receives a public records request and determines the information
requested is protected from disclosure under AS 40.25.120, the authority will not release the
information except to authority personnel and contractors for purposes of evaluating the person's
application. If the authority determines the information may not be protected from disclosure
under AS 40.25.120, the authority will notify the person submitting the information, who is
responsible at the person's own expense for seeking judicial relief or taking other action
necessary to protect the material from disclosure under AS 40.25.100-40.25.295. (Eff.
_/_! __ ,Register_)
Authority: Art. 1, sec. 22, Ak Const.
AS 40.25.110
AS 40.25.120
AS 42.45.045
AS 44.83.080
3 AAC 107.635. Acceptance of applications for consideration; eligibility review.
The authority will accept for consideration, for a recommendation for a grant, each application
received on or before the deadline established in the request for applications. The authority will
determine if the application is complete, is submitted by an eligible applicant within the meaning
given in AS 42.45.045(1) and under 3 AAC I 07.610, and is for a project that is eligible under
AS 42.45.045(f)-(h) and 3 AAC 107.615. The authority will reject applications that fail to meet
those requirements, and will notify each applicant whose application is rejected of the authority's
decision. (Eff. _/_/ __ , Register_)
Authority: AS 42.45.045 AS 44.83.080
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3 AAC 107.645. Feasibility and public benefit review of grant applications. (a) For
each application not rejected under 3 AAC 107.635, the authority will perform a benefit and
feasibility review, in which the authority will review
(1) project management, development, and operations, including whether
(A) the proposed schedule is clear, realistic, and described in adequate
detail;
(B) the costs and savings estimates for project development, operation,
maintenance, fuel, and other project items are realistic;
(C) the project team's method of communicating, monitoring, and
reporting development progress is described in adequate detail; and
(D) logistical, business, and financial arrangements for operating and
selling energy from the completed project are reasonable and described in adequate
detail;
(2) qualifications and experience, including whether
(A) the applicant, partners, and contractors have sufficient knowledge and
experience to successfully complete and operate the project;
(B) the project team has staffing, time, and other resources to successfully
complete and operate the project;
(C) the project team is able to understand and address teclmical,
economic, and environmental barriers to successful project completion and operation;
and
(D) the project uses local labor and trains a local labor workforce;
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(3) technical feasibility, including whether
(A) the renewable energy resource is available on a sustainable basis, and
project permits and other authorizations can reasonably be obtained;
(B) a site is available and suitable for the proposed energy system;
(C) project technical and environmental risks are reasonable;
(D) the proposed energy system can reliably produce and deliver energy
as planned; and
(E) if a demonstration project is being proposed,
(i) application in other areas of the state, or another specific
benefit of the proposed project, is likely;
(ii) the need for the project is shown; and
(iii) the risks of the proposed system are reasonable and warrant
demonstration; and
( 4) economic feasibility and benefits, including whether
(A) the project is shown to be economically feasible;
(B) the project has an adequate financing plan for completion of the
grant-funded phase, and has considered options for financing subsequent phases of the
project; and
(C) other public benefits are demonstrated.
(b) The authority will reject applications that it determines under (a) of this section not to
be technically and economically feasible, or not to provide sufficient public benefit, and will
notify each applicant whose application is rejected of the reasons for rejection. (Eff.
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_/_/ __ , Register____)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.655. Evaluation of grant applications. (a) For each application not
rejected under 3 AAC 107.645, the authority will perform an evaluation for the purpose of
ranking applications and making recommendations to the legislature for grants. The evaluation
criteria include
(1) the extent to which the proposed project serves an area of the state in which
the average cost of energy to each resident of the area exceeds the average cost to each resident
of other areas of the state; the authority will give the most weight to the criterion in this
paragraph;
(2) the extent to which the applicant will provide matching resources for the
project; the authority will give significant weight to the criterion in this paragraph;
(3) the extent to which a grant to the project, considered with other recommended
grants, achieves a statewide balance of grant money; the authority will give significant weight to
the criterion in this paragraph;
(4) the likely economic and technical feasibility of the project; as part of its
evaluation under this section, the authority will consider the results of the review performed
under 3 AAC 107.645;
(5) the public benefits of the project, including economic benefits; as part of its
evaluation under this section, the authority will consider the results of the review performed
under 3 AAC 107.645;
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(6) the ability of the applicant to finance, operate, and maintain the project for the
life of the project;
(7) local support for the project;
(8) the readiness of the applicant to proceed with the phases of the project
proposed for a grant;
(9) other projects existing or proposed in the same area;
(10) the applicant's previous compliance with the requirements of AS 42.45.045,
3 AAC 107.600-3 AAC 107.695, requests for applications, and grant agreements; and
(11) other project-specific criteria as identified in the request for applications.
(b) As a result of the evaluation under (a) of this section, the authority may recommend a
grant in the amount requested by the applicant, decline to recommend a grant for a project, or
recommend a grant in an amount or for project phases different from what the applicant
requested. In recommending a grant for phases different from what the applicant requested, the
authority may limit its recommendation to a grant for one or more preliminary project phases
before recommending a grant for project construction. (Eff. _/_/ _______, Register_)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.660. Ranking of applications. (a) To establish a statewide balance of
recommended projects, the authority will provide to the advisory committee established in
AS 42.45.045(i) a statewide and regional ranking of all applications recommended for grants.
(b) In consultation with the advisory committee established in AS 42.45.045(i), the
authority will
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(1) make a final prioritized list of all recommended projects, giving significant
weight to providing a statewide balance of grant money, and taking into consideration the
amount of money that may be available, number of projects within each region, regional rank,
and statewide rank;
(2) include in the final prioritized list any changes to the recommendations made
following the evaluation under 3 AAC 107.655; and
(3) include in the final prioritized list a list of applications that were rejected
under 3 AAC 107.635-3 AAC 107.645.
(c) The authority will publish the final prioritized list on its website, and will provide it
to the legislature in accordance with AS 42.45.045( d)(3). Award of a grant is subject to
legislative appropriation. (Eff. _/_/ __ , Register __j
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.670. Additional information from applicant or grantee. (a) As it
considers necessary to perform a complete review of an application or project, and at any stage
in the review, evaluation, recommendation, or award process under 3 AAC 107.600-3 AAC
107.695, the authority will request that an applicant or grantee provide additional information.
Requests for information may include a request for information sufficient for the authority to
confirm that an
(1) application meets the requirements of the request for applications; or
(2) applicant or grantee is willing and able to adjust the project scope and budget
as required by the authority in making a recommendation or as required by the legislature in
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approving a grant.
(b) If an applicant or grantee fails to provide timely or adequate information in response
to a request from the authority, the authority may reject the application, modify the authority's
recommendations to the legislature, or cancel a notice of intent to award a grant. (Eff.
_/_/ __ , Register_____)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.675. Grant agreement. As a condition for a grant under AS 42.45.045 and
3 AAC107.600-3 AAC 107.695, the applicant must sign a grant agreement that the authority
prepares and that contains the terms and conditions ofthe grant, including
(!) a description of the project to be financed with the grant;
(2) a project schedule; the authority may make one or more disbursements of
grant money conditional upon
(A) completion and approval by the authority of pre-construction phases
of the project;
(B) the grantee demonstrating that it has site control for the project;
(C) the grantee demonstrating that it has one or more permits or
authorizations required for construction of the project;
(D) the grantee's successful completion of other activities or objectives set
under the project schedule;
(3) requirements for project management;
( 4) a description of allowable costs;
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(5) requirements for the documentation of expenditures and procurements;
( 6) procedures for making grant payments to the grantee;
(7) requirements for the grantee's accounting and reporting;
(8) requirements for the grantee's maintenance and retention of project records;
(9) hiring preferences applicable under AS 36.10.150 -36.10.180 and 8 AAC
30.064-8 AAC 30.088 to the grantee and its agents, contractors, and subcontractors;
(1 0) procedures for verifying the provision of the grantee's matching resources to
the project; and
(11) other terms and conditions that the authority determines are appropriate to
.ensure the public purpose of and maximize the public benefit from the grant.
(b) If an applicant fails to execute the grant agreement within 3 0 days after receiving it
from the authority, the authority may cancel a notice of intent to award the grant and may offer
the grant money to another eligible applicant, subject to appropriation and approval by the
legislature. (Eff. _/_/ __ , Register ___)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.680. Grant closeout; return of unexpended grant money. Upon
completion of the grant-financed or termination of the grant, the authority will close out the grant
and the grantee shall return to the authority any grant money and interest on grant money not
spent on project work under the terms and conditions of the grant agreement. The grant
agreement may provide that specified obligations of the grantee survive grant closeout. (Eff.
_/_/ __ , Register___)
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Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.685. Project operations and maintenance reporting. For a project
constructed with a renewable energy grant, the grantee shall provide to the authority reports on
project operations and maintenance for the periods and with the information that the authority
specifies in the grant agreement. The authority may require information on project operations
and maintenance activities and cost, other costs of the project, energy output, estimated fuel
displacement resulting from the energy output, discussion of operational issues, and other
information useful to the authority for its evaluation ofthe project and the grant. If the grantee
fails to provide information as required under this section and in the grant agreement, the
authority may determine the grantee ineligible for recommendations for future renewable energy
grants or ineligible for other future grants from the authority. (Eff. _/_/ __ , Register___)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.690. Dispute resolution. A person who has a claim concerning a grant
awarded under AS 42.45.045 and 3 AAC 107.600-3 AAC 107.695 may submit that claim in
accordance with 3 AAC 108.915-3 AAC 108.920. (Eff. _/_/ __ ,Register___)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 107.695. Definitions for AS 42.45.045 and 3 AAC 107.600-3 AAC 107.695.
(a) In AS 42.45.045,
(1) "independent power producer" means a corporation, person, agency,
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authority, or other legal entity or instrumentality, that is not an electric utility and that owns or
operates a facility for the generation or production of energy entirely for use by the residents of
one or more municipalities or unincorporated communities recognized by the Department of
Commerce, Community, and Economic Development for community revenue sharing under
AS 29.60.850-29.60.879 and 3 AAC 180;
(2) "wasteheat recovery" means systems for the recovery of unused heat from
systems or processes in operation when the applicant applies for a renewable energy grant.
(b) In AS 42.45.045 and 3 AAC 107.600-3 AAC 107.695,
(I) "matching funds" or "matching resources"
(A) means those resources that the grantee dedicates for the completion of
the project;
(B) includes
(i) cash;
(ii) loan proceeds; and
(iii) grantee-provided equipment, labor, or other materials or
services needed for the completion of the project;
(2) "preliminary development phase" includes
(A) feasibility studies;
(B) reconnaissance studies;
(C) energy resource monitoring;
(D) design phases; and
(E) obtaining required permits and authorizations;
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(3) "renewable energy resources" has the meaning given in AS 42.45.045(1).
(c) In 3 AAC 107.600-3 AAC 107.695, unless the context requires otherwise, "grant" or
"renewable energy grant" means a grant recommended or awarded under AS 42.45.045 and
3 AAC 107.600-3 AAC 107.695. (Eff. _/_/__,Register_)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 108.910 is repealed and readopted to read:
3 AAC 108.910. Protests. (a) In accordance with this section, and except as otherwise
provided by statute or required as a condition of assistance received by the authority under
3 AAC I 05.020, an interested party may protest the authority's award of a contract, the
authority's proposed award of a contract, or a solicitation by the authority for supplies, services,
professional services, or construction.
(b) The protest must be submitted to the authority's procurement manager in writing, and
must include
(I) the name, address, and telephone number of the protester;
(2) the signature of the protester or the protester's representative;
(3) identification of the solicitation at issue;
( 4) a detailed statement of the legal and factual grounds for the protest, including
copies of relevant documents; and
(5) a statement of the remedy requested; in a protest of a procurement action, the
protester is limited to remedies that would apply in a protest under AS 36.30.
(c) A protest based on alleged improprieties in a bid or solicitation must be received by
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the authority at least 10 days before the due date of the bid or proposal. A protest based on
alleged improprieties in an award of a contract or a proposed award of a contract must be filed
within I 0 days after the procurement officer issues a notice of intent to award the contract. For
good cause shown, the authority may change a deadline set in this subsection or accept a late
filed protest.
(d) Upon receiving a protest, the authority will provide notice of the protest to other
interested persons.
(e) The authority's procurement manager shall issue a written decision on a procurement
protest within 15 days after receipt of all relevant information from the protester and the
authority, unless the executive director extends the time for decision for good cause shown. (Eff.
5/12/2005, Register 174; am_/_/ __ , Register ___j
Authority: AS 42.45.045 AS 44.83.080
3 AAC I 08 is amended by adding new sections to read:
3 AAC 108.915. Contract and grant claims. (a) In accordance with this section, and
except as otherwise provided by statute or required as a condition of assistance received by the
authority under 3 AAC 105.020, a person who has a claim against the authority under a contract
or grant agreement with the authority may submit that claim to the authority.
(b) The claim must be submitted to the contract manager or grant manager in writing,
and must include
(1) the name, address, and telephone number ofthe claimant;
(2) the signature of the claimant or the claimant's representative;
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(3) identification of the contract or grant at issue;
( 4) a detailed statement of the legal and factual grounds for the claim, including
copies of relevant documents; and
(5) a statement of the remedy requested.
(c) A claim under a contract or grant must be received by the authority within 30 days
after the claimant becomes aware of the basis of the claim or should have known of the basis of
the claim, except that the information required in (b)(4) and (5) of this section and any other
relevant information must be received by the authority within 60 days after the claimant submits
the claim. For good cause shown, the authority may change a deadline set in this subsection or
accept a late filed protest.
(d) Upon receiving a claim, the authority will provide notice of the claim to other
interested persons.
(e) The authority's contract manager or grant manager shall issue a written decision on a
claim within 90 days after receipt of all relevant infmmation from the claimant and the authority,
unless the executive director extends the time for decision for good cause shown. (Eff.
_!_! __ , Register__)
Authority: AS 42.45.045 AS 44.83.080
3 AAC 108.920. Appeals. (a) A protester who is dissatisfied with a decision of the
procurement manager under 3 AAC 108.910, a claimant who is dissatisfied with a decision of
the grant manager or contract manager under 3 AAC 108.915, or a protester dissatisfied with
other action ofthe authority, may appeal the decision to the board of directors of the authority or,
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if the board of directors has authorized the executive director to make the final decision of the
authority, to the executive director. A protester or claimant must submit an appeal within 10
days after receiving the decision to be appealed.
(b) Upon receiving an appeal under (a) of this section, the executive director shall review
the protest or claim, relevant information from agency staff, including any decision of the
procurement manager, contract manager, or grant manager, and other relevant information, and
shall
(1) prepare a final decision or a recommended decision for consideration by the
board of directors of the authority;
(2) conduct a hearing and prepare a final decision or recommended decision for
consideration by the board of directors of the authority;
(3) designate a hearing officer to conduct a hearing and prepare a recommended
decision for consideration by the executive director or the board of directors of the authority; or
( 4) refer the matter to a mediator or arbitrator for resolution, subject to approval
of the resolution by the executive director or the board of directors of the authority.
(c) The board of directors of the authority will adopt a recommended decision prepared
under (b) of this section, adopt the recommended decision with modifications, reject the
recommended decision, or return the recommended decision to the executive director or hearing
officer for additional findings.
may
(d) In conducting a hearing under this section, the hearing officer or executive director
(1) hold prehearing conferences to settle, simplify, or identify the issues in a
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proceeding, or to consider other matters that may aid in the expeditious disposition of the
proceeding;
(2) require parties to state their positions concerning the various issues in the
proceeding;
(3) require parties to produce for examination those relevant witnesses and
documents under their control;
( 4) rule on motions and other procedural matters;
(5) regulate the course of the hearing and conduct of the participants;
(6) establish time limits for submission of motions or memoranda;
(7) impose appropriate sanctions against a person who fails to obey an order
relating to the hearing procedures, including
(A) prohibiting the person from asserting or opposing designated claims
or defenses or introducing designated matters into evidence;
(B) excluding all testimony of an unresponsive or evasive witness; and
(C) excluding a person from further participation in the hearing;
(8) take official notice of a material fact not appearing in evidence, if the fact
among the traditional matters subject to judicial notice; and
(9) administer oaths or affirmations.
(e) The board of directors of the authority may delegate to the executive director
authority to make the final decision regarding protests of procurement actions, claims under
contracts or grants, and protests of other actions of the authority, and contract claims, as the
board determines is appropriate.
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(f) A decision by the board of directors ofthe authority, or by the executive director on
matters delegated to the executive director, is a final decision for purposes of judicial review.
(Eff. _/_/ __ , Register___)
Authority: AS 42.45.045 AS 44.83.080
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