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 represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.

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Photo of Peter Terenzio Peter Terenzio

Peter Terenzio routinely advises clients regarding the multiple regulatory regimes that apply to federal contractors. His practice also extends outside of traditional government procurement contracts to include federal grants and Other Transaction Authority (OTA) research, prototype, and production agreements.

Among other things, Peter…

Peter Terenzio routinely advises clients regarding the multiple regulatory regimes that apply to federal contractors. His practice also extends outside of traditional government procurement contracts to include federal grants and Other Transaction Authority (OTA) research, prototype, and production agreements.

Among other things, Peter regularly helps clients with the constantly evolving domestic-preference requirements promulgated pursuant to various federal laws, including, for example, the Buy American Act (BAA) and Trade Agreements Act (TAA), but also including more recently the Inflation Reduction Act (IRA) and Infrastructure Investment and Jobs Act (IIJA). He also has particular experience with helping clients navigate the complicated prevailing wage rules imposed by the Davis Bacon Act (DBA) and Service Contact Act (SCA). Peter has used this regulatory knowledge to help clients negotiate the specifics of their contracts, grants, and OTA agreements.

Peter also has significant experience with the disputes that may arise during the execution of government prime contracts. He knows how to work closely with the client’s subject matter experts to prepare and submit detailed requests for equitable adjustment (REAs) in order to secure much-needed price or schedule relief. Where necessary, he has assisted clients with converting their REAs into certified claims, and when disputes cannot be resolved at the Contracting Officer level, he has helped clients vindicate their contractual rights in litigation before the Boards of Contract Appeals.

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