Last December, President Biden issued Executive Order 14057, “Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability,” which directed the government to adopt cleaner and more sustainable procurement practices, with the ultimate objective of net-zero emissions by 2050. 

Pursuant to that directive, GSA has issued a new RFI seeking information regarding domestically manufactured solar photovoltaic (PV) panels and systems, as well as PV system installation.  GSA intends to use the information to develop a solar PV procurement strategy and a procurement standard for use in future solicitations — including solicitations for Power Purchase Agreements (PPA), Energy Savings Performance Contracts (ESPCs), Utility Energy Service Contracts (UESCs), and other vehicles. 

Given the RFI’s emphasis on sourcing and country of origin, it is possible that any new procurement standards for civilian contracting would parallel existing regulations at DFARS 252.225-7017, which generally require DoD contractors to make use of PV devices originating from the United States or certain designated or qualifying countries.  Of course, the ultimate impact of the RFI on future procurement strategy remains to be seen.  What is certain, however, is that the Administration is committed to clean technology procurements and that domestic preferences remain an overriding and central concern. 

Comments in response to the RFI are due by November 18, 2022.  More detail about specific topics covered in the RFI is below.

Questions for Manufacturers

Consistent with the current intense focus on reshoring U.S. industry, the RFI includes multiple questions aimed at assessing the current state of domestic PV manufacturing.  For example, the RFI asks PV manufacturer respondents to provide their “production capacity of domestically manufactured solar panels,” and similarly asks those respondents to list the countries of origin for both components and raw materials.  It also asks respondents to describe their traceability and supply chain controls, and one question is specifically focused on understanding the administrative burden imposed by the Uyghur Forced Labor Prevention Act (UFLPA).  (The UFLPA has particular significance in the PV industry due to the amount of polysilicon sourced from the Xinjiang region). 

At the same time, the RFI also directly asks manufacturers whether they are able to comply with the 55% domestic content threshold for manufactured products incorporated into infrastructure projects under the Infrastructure Investment and Jobs Act (IIJA).  The RFI further asks whether manufacturers will be able to comply with the new Buy American domestic content threshold for certain other types of procurements; that threshold is set to rise to 60% on October 25, 2022, increase to 65% in 2024, and then to 75% in 2029. 

Questions for Installers & Developers

GSA is evaluating not only the market for PV manufacturing, but also the markets for PV installation and solar generation facility development.  To that end, the RFI asks installers to provide information about their use of domestically-produced PV panels and components, as well as whether they can identify any “barriers’ to using domestically manufactured PV panels and components in their future projects.  Separately, the RFI also asks developers whether there are “obstacles to identifying skilled labor to complete the installations.”  

Questions for Energy Producers

Finally, the RFI also asks respondents to identify the “likely impacts of the Government requiring in its procurements that solar energy under such contracts be generated using domestically manufactured PV panels or components.”  Respondents are asked to identify both the benefits and drawbacks of such an approach; developers are also asked whether such a requirement would change their willingness to participate in future federal opportunities. 

Tags: Buy Clean, Clean Energy, Energy Savings Performance Contract, ESPCs, Green, Net-zero, photovoltaic, Power Purchase Agreement, PPA, PV Panels, RFI, solar energy
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Photo of Michael Wagner Michael Wagner

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government…

Mike Wagner helps government contractors navigate high-stakes enforcement matters and complex regulatory regimes.

Combining deep regulatory knowledge with extensive investigations experience, Mr. Wagner works closely with contractors across a range of industries to achieve the efficient resolution of regulatory enforcement actions and government investigations, including False Claims Act cases. He has particular expertise representing individuals and companies in suspension and debarment proceedings, and he has successfully resolved numerous such matters at both the agency and district court level. He also routinely conducts internal investigations of potential compliance issues and advises clients on voluntary and mandatory disclosures to federal agencies.

In his contract disputes and advisory work, Mr. Wagner helps government contractors resolve complex issues arising at all stages of the public procurement process. As lead counsel, he has successfully litigated disputes at the Armed Services Board of Contract Appeals, and he regularly assists contractors in preparing and pursuing contract claims. In his counseling practice, Mr. Wagner advises clients on best practices for managing a host of compliance obligations, including domestic sourcing requirements under the Buy American Act and Trade Agreements Act, safeguarding and reporting requirements under cybersecurity regulations, and pricing obligations under the GSA Schedules program. And he routinely assists contractors in navigating issues and disputes that arise during negotiations over teaming agreements and subcontracts.

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Mr. Terenzio advises contractors across a broad range of different issues. His practice includes bid protests, contract claims and disputes, regulatory counseling, and internal investigations.

Before joining the firm, Mr. Terenzio clerked for Chief Judge Susan G. Braden of the Court of Federal Claims.

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