The Georgia Solar Energy Solar Association (“GSEA”) hosted its 2013 Policy Forum last week at the Georgia Tech Research Institute.  The program focused on the status of solar markets nationwide and in Georgia, as well as discussions about current Georgia laws and regulations governing energy policy and future changes that would open the markets for solar in the state.

2012 Solar Policy Initiatives

In 2012, GSEA conducted a major campaign with Georgia legislators to pass a bill that would have expressly permitted the use of power purchase agreements (PPAs), solar equipment leases and other types of third-party financing for solar projects.  According to the presenters at the Policy Forum, the solar market will never really open up in Georgia until those financing arrangements are permitted.

The 2012 bill met with steep opposition from Georgia Power and local EMCs because, they claimed, that such transactions violated the state’s Territorial Act, which regulates the utility industry and provides that only registered utility companies can sell power, and assigns territories to those utility companies. (see my 2012 blog post about this issue).  While the 2012 bill ultimately did not pass, it certainly caught the attention of Georgia Power and made the utility companies realize that the Georgia solar industry and its advocates were gaining momentum and support.

2013 Solar Policy Initiatives

GSEA appears to be continuing its course to pursue legislation that will allow PPAs and third-party financing.  A revised version of the 2012 bill has been introduced this year by Senator Buddy Carter as SB 51 2013.   GSEA will also continue to push to raise the cap on the state tax incentives for renewable energy projects.

What stands in the way of these solar policy initiatives? 

According to several panelists, including State Representative Chuck Martin and Georgia Public Service Commissioner Tim Echols, the biggest hurdle to solar-friendly legislation is Georgia’s low power rates.  Georgia and the southeastern states have the lowest electric rates in the country (by a lot in comparison to areas like the northeast).

Here’s why that is important (or at least why legislators and regulators think it’s important):  low power rates are apparently one of Georgia’s competitive advantages in attracting businesses to move to this state—and no one in elected office wants to take any action that could be seen as anti-economic development. 

Commissioner Echols and Representative Martin believe that legislation that opens the market to solar PPAs could create conditions that “run off companies and manufacturers with higher utility rates.”  No elected official wants to be positioned as “anti-business” or “anti-economic development” if the debate is framed in those terms.  But….

Does adding solar power to Georgia mean higher rates?

Georgia Power doesn’t think so.  Georgia Power sought approval to increase its purchase of solar power from independent producers from the current 55MW to 210MW over the next two years.  The program is called the Advanced Solar Initiative Program.

According to Ervan Hancock, a manager of renewable and green strategies for Georgia Power, the reason that Georgia Power is voluntarily seeking to increase its solar purchases is that “it is now economically feasible to add solar to [Georgia Power’s] portfolio.”  Hancock went on to explain that Georgia Power has considered solar and other renewable energy sources for a long time but has never believed—until now—that it could include solar in its portfolio without causing a rate increase to its customers.  The reason Georgia Power believes that solar power can now be added without rate increases is because the costs of equipment have significantly decreased in the last 12-18 months, making the cost of solar power much less expensive.

So, if Georgia Power can add solar power without increasing rates, why do legislators believe that PPAs or solar leases will cause utility rates to go up?

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If you’ve never heard of the terms “Design Specification” or “Performance Specification” or you’ve heard of them but don’t know what they mean or why they matter, then you have probably never been involved in a dispute or litigation relating to defective specifications or inadequate designs.

A “Design Specification” sets forth in detail the materials to be employed and the manner in which the work is to be performed. The contractor is required to follow them as one would a road map and without deviation.  A “Performance Specification” describes an end result, an objective or standard to be achieved and leaves the determination of how to reach the result to the contractor

These terms are legal terms that are derived from a long-standing legal concept known as the implied warranty of specifications.  It’s also referred to as the “Spearin Doctrine,” because of a landmark ruling of the U.S. Supreme Court that set out the rule relating to the implied warranty in the context of a government construction contract.  Since that ruling, this doctrine has been adopted by virtually every state and is applied to both public and private construction projects.

Here’s what it says:

“Where one agrees to do for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation because unforeseen difficulties are encountered…But if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.”

United States v. Spearin, 248 U.S. 132 (1918)

In other words, the owner impliedly warrants that if the contractor completes the work in accordance with the owner’s plans and specifications but there is a deficiency or failure, the owner, not the contractor, is responsible.

This is why it matters whether a particular component of the design at issue is determined to be a “design specification” or a “performance specification:”

  • In general, the implied warranty of specifications applies only to design specifications, and not performance specifications
  • There can be exceptions to this general rule where the contractor has some participation in the design or control over the means and methods
  • The determination of whether a particular work item is a design or performance specification is a factually-intensive one and made on a case-by-case basis

Many claims relating to defective specifications or design hinge upon whether the specification at issue was a design or performance specification.

I’ll be discussing the legal significance of design v. performance specifications and factors affecting the allocation of risk of defective specifications in a webinar sponsored by The Construction Specifications Institute.  The webinar is Tuesday, April 3rd at 2:00pm Eastern time and registration is open to anyone.  Click here for more information or to register.

The Good News:

GEFA’s David Godfrey announced at the Georgia Energy Services Coalition meeting on Thursday that the procurement process for the first state performance contracting project in Georgia has begun.  The first project will be at Phillips State Prison in Buford, Georgia.  At first, the timeline looked promising—an ESCO would be selected by July 19th and an investment grade audit would be completed by October.  This was good news considering that prequalified ESCOs were just announced last week.

The Bad News:

However, the performance contract will not be signed until July 2013.  Yes, a full nine months after the energy audit is completed and more than two years after the performance contracting statute came into effect.

The reason given for the lengthy delay between the audit and the contract signing was that  GEFA is financing this project through general obligation bonds.  That means that the project essentially must go through the state budget cycle.  The amount of the project must be submitted to the Georgia Office of Budget Planning by October 2012 in order to be considered and approved by the Governor for the 2013 budget.   According to Godfrey, the contract cannot be signed until the funds have been approved.

So, the state will lose out on the energy savings that could have been generated in the period from October 2012 through until the project is completed sometime after July 2013.  But also, it will be hard for the winning ESCO to accurately forecast prices and costs that far in advance, and with no mechanism built into the agreement for cost escalation, the ESCO will likely have to factor in a contingency (i.e increase the price of the contract to hedge against unknown cost escalations) that otherwise would not be needed if the project were proceeding immediately.  The state may also end up paying more for financing, as interest rates may increase between now and next summer.

The Really Bad News:

There will not be any other performance contracts procured by the state through GEFA until this pilot project is completed and deemed a “success.”  And, Godfrey was noncommittal as to whether this would be the procurement model for all future performance contracts (requiring each one to be approved to be in the following year’s budget).

If this is true, then there will be no other performance contracts solicited until at least late 2013 or early 2014, and if they are also subject to the same budget cycle delays, those projects would not be constructed until 2014 or 2015.   This is a huge disappointment to the ESCO and performance contracting industries, who have moved resources and personnel to Georgia over the last 18 months in anticipation of a growing performance contract market.  It is also a disappointment to the struggling Georgia construction industry, especially when one of the big selling points for the amendment that was passed to allow performance contracting was the creation of jobs in the construction sector.

Last year, Georgia enacted a statute allowing state agencies to enter into energy savings performance contracts.  The Georgia Environmental Finance Authority (GEFA), which is the agency that will oversee the procurement of performance contracts for state agencies.  According to the 2012 Georgia Energy Report that was recently released by GEFA, it has been working with advisory groups to develop rules and regulations for the program as well as standardized procurement and contract documents.

Although there have not yet been any solicitations for proposals for ESPC projects for state agencies, GEFA recently announced the ESCOs that have been pre-qualified to compete for future performance contracting projects.  The prequalified ESCOs are: AECOM, Chevron Energy Solutions, ConEdison Solutions, Constellation Energy, Eaton-EMC, Energy Systems Group, Honeywell, Johnson Controls, Linc Mechanical, NEXTera Energy Solutions, Noresco, Pepco Energy Services, Schneider Electric, Siemens and Trane. Additionally, GEFA has posted samples of its proposed Investment Grade Energy Audit Agreement and Energy Savings Performance Contract forms on its website.

According to the 2012 Energy Report, GEFA expects that performance contracting will help product 11,000 direct and indirect jobs and will ultimately help to reduce the state’s energy bills by up to 20 percent. In this month’s issue of the Construction Specifier (pg. 12), I have written an article about the benefits of ESPCs for both public agencies and contractors, particularly in a bad economy.  Hopefully, we’ll start to see some of these benefits in Georgia as the new performance contracting projects are initiated.

The Atlanta Business Chronicle reported Monday that Georgia State Senator, Buddy Carter, withdrew his proposal for a bill that would have bolstered the use of solar energy in this state because he believed it did not have enough votes to pass.  This is sad news to the solar industry in Georgia and to really anyone that is not Georgia Power or an existing utility company in this state.

Senate Bill 401 was introduced in February to encourage private investment in renewable solar energy by allowing individuals and companies to finance solar installations on their property through private power purchase agreements (PPAs).  PPAs work like this:  a solar company owns and installs the solar panels that are placed on the customer’s property (usually rooftop installations).  The customer either leases the solar equipment from the solar company for a monthly fee, or enters into a PPA to make regular payments to the installer based upon the amount of energy that will be generated.

PPAs are the most common form of financing for these projects because they typically involve significant up-front capital costs.  Many other states, particularly those with Renewable Energy Portfolios, allow the use of PPAs for solar and other renewable energy projects.

The reason they are not currently allowed in Georgia is because a Georgia law, known as the “Georgia Territorial Electric Service Act,” limits the sale of power to regulated utilities like Georgia Power and local EMCs.   Under the current state of the law, anyone can purchase and install their own solar panels to produce electricity for themselves.  But, they can’t rent the panels from a third party, buy the power generated from the panels from a third party, or sell the excess energy created from their panels to a third party.

It’s hard to believe that anyone would oppose to a bill that would encourage investment in renewable energy and foster a burgeoning industry that is bringing good jobs to this state.   It just makes sense to use one of the state’s most abundant resources—sunshine—to reduce demand from coal and gas-based energy plants and create jobs at the same time.  But, as predicted, Georgia Power has put up a vigorous fight and is lobbying hard to defeat this bill at all costs.  Georgia Power and existing utilities are heavily invested in coal and gas-based energy plants, and they do not want to see a reduction in demand and revenue due to these PPAs.

The fact that Senator Carter has pulled the bill for lack of votes means that Georgia Power is currently a louder voice in the legislative ears than the solar industry and advocates for green energy.  In order for this bill to have any real chance of becoming law in 2012, it must pass the senate by Wednesday in order to be sent to the House for consideration.

If you support renewable energy and solar-friendly legislation, then you should contact your representatives right away to urge them to vote for the passage of SB 401.  Otherwise, the expansion of solar energy in Georgia will be delayed for at least another year.  That’s a lot of sun that we will have missed out on!

 by Cheryl Treadwell

Today’s guest post is written by Cheryl Treadwell.  Cheryl is a member of the Construction and Labor and Employment sections of Chamberlain Hrdlicka’s Atlanta office.

Green building initiatives are typically associated with large corporations, governmental entities, and expensive, custom-built homes because these are typically the projects that receive the most publicity and attention.  However, I wanted to highlight a unique green building initiative that is being used by a local non-profit group to improve the homes and lives of economically-disadvantaged families.

The Green and Healthy Homes Initiative (“GHHI”) is part of a national movement to create green, healthy and sustainable homes in low-income areas.  The Center for Working Families, Inc.  (“TCWFI”) is a non-profit organization that is leading the charge in Atlanta.  Through public-private partnerships, TCWFI is updating older homes in Atlanta neighborhoods near Turner Field by providing weatherization, energy-efficiency, lead hazard reduction, and other measures.

By addressing asthma triggers, allergens, lead poisoning and other unsafe conditions in housing, TCWFI is working to reduce the prevalence of certain illnesses, medical costs, and absences from school and work.   TCWFI will also provide training and green jobs for residents.  This investment in residential areas will obviously result in energy conservation and reduced energy costs, which is usually the focus of most green initiatives.  However, TCWFI is also taking a community based approach by considering the long-term economic and social advantages of “Going Green.”   Job training, economic stimulus, health benefits, and higher property values are just some of the benefits resulting from this partnership.

What I really like about this program is that it is a reminder that the fundamental principles of green building are really based upon improving the quality of our environment, through the enhanced performance and efficiency of the buildings in which we live and work.  Beyond the LEED certifications and Energy Star ratings, there are people whose lives are better because of this program.

To learn more about TCWFI and GHHI or volunteer, visit http://www.tcwfi.org.  This is a very interesting program that I think will continue to gain traction in Atlanta as well as in other cities.

At first glance, this case looked like a personal injury case and I had very little interest.  But, as I read further, I quickly realized that this case turns on contract law and has serious implications for owners and contractors with respect to liability for third-party claims.  The case is called Estate of Pitts v. City of Atlanta, and the troubling decision was entered by the Georgia Court of Appeals on October 5, 2011.

Here’s what happened:

  • On June 14, 2007, a construction worker named Mack Pitts was killed on a project at the Atlanta airport when he was struck by a vehicle driven by an employee of A&G Trucking, Inc.
  • In an action separate from this case, the estate of Mr. Pitts sued and obtained a wrongful death judgment against A&G Trucking, but the judgment exceeded the limits of A&G Trucking’s auto liability insurance coverage
  • The estate of Mr. Pitts then sued the City of Atlanta and several contractors alleging that the City and the contractors breached their contractual duties to require that A&G Trucking carried the minimum required auto liability insurance; the estate further alleged that the City breached the ministerial duty to require A&G Trucking to carry insurance in the amount dictated by the contract
  • The trial court granted summary judgment in favor of the contractors and the City on the breach of contract claims on the grounds that the Estate lacked standing to enforce the contractual minimum insurance requirement, and granted summary judgment to the City on the ministerial duty claim (this part of the decision was not overturned by the Court of Appeals)
  • The Court of Appeals reversed the trial court’s summary judgment in favor of the City and the contractors on the breach of contract claims holding that Mr. Pitts was a third-party beneficiary to the construction contracts (the prime and subcontract) that contained minimum auto liability insurance requirements of $10,000,000

The most fascinating (and scary) part of this case is how the Court of Appeals persuaded itself that Mr. Pitts was an intended third-party beneficiary of the prime and subcontract.  Normally, to make a claim as a third-party beneficiary, a claimant has to show that the parties to the contract clearly intended to provide a benefit to that claimant.  The benefit can not be merely incidental, but must have been intended.  That’s usually a pretty high standard.  The defense raised several good arguments against finding that Mr. Pitts’ Estate had standing to sue for breach of contract.  After all, he wasn’t a party to any of these agreements and probably never even saw the contracts themselves or knew of their contents.  To conclude that the Owner, prime contractor, and subcontractor all entered into agreements with the intent to provide Mr. Pitts third-party benefits and rights to enforce those agreements on his behalf seems like a stretch.  But that’s exactly what the Court of Appeals held.

The Court was apparently persuaded by language contained in the OCIP (Owner Controlled Insurance Program) that stated its purpose was “to provide one master insurance program that provides broad coverages with high limits that will benefit all participants involved in the project.”  The Court looked to the definition of “participant” to determine that it was broad enough to include individual workers on the project, not just other contractors.

There was one argument buried deep in the decision that addressed a provision of the subcontract that expressly stated that no third-party benefits were created.  This seemed like a great argument and might well have changed the outcome of the case.  However, the provision was worded too narrowly.  The exclusionary language referred only to Subcontractor’s lower tier subcontractors and vendors.  Thus, the Court correctly found that this provision did not apply to Mr. Pitts because he was not a subcontractor or vendor the Subcontractor.

Some of the defendants are seeking the Court’s reconsideration of this decision, and given the impact of this decision, there may be further appeals to come.  But until the dust has settled and the final decision on this case has been made, there are at least two lessons that every owner, contractor, and construction lawyer in Georgia should take away:  (1)  be absolutely sure that contractors and subcontractors at every level are carrying the minimum insurance coverages required by their contracts; and (2) draft “no third-party beneficiary” clauses very broadly to expressly exclude rights of third-party beneficiaries of any kind.