Current through Reg. 50, No. 13; March 28, 2025
(a) Purpose.
This section establishes the requirements for the implementation of contracts
between utilities and their competitive affiliates resulting from a fair,
competitive bidding process.
(b)
Application.
(1) General application. This
section applies to:
(A) electric utilities
operating in the State of Texas as defined in the Public Utility Regulatory Act
(PURA) §31.002(6), and transactions or activities between electric
utilities and their affiliates, as defined in PURA §11.003(2);
and
(B) transmission and
distribution utilities operating in a qualifying power region in the State of
Texas as defined in PURA §31.002(19) upon commission certification of a
qualifying power region pursuant to PURA §39.152, and transactions or
activities between transmission and distribution utilities and their
affiliates, as defined in PURA §11.003(2).
(2) No circumvention of the code of conduct.
An electric utility, transmission and distribution utility, or competitive
affiliate shall not circumvent the provisions or the intent of PURA
§39.157 or any rules implementing that section by using any affiliate to
provide information, services, products, or subsidies between the electric
utility, transmission and distribution utility, and a competitive
affiliate.
(3) Notice of conflicts
and/or petition for waiver. Nothing in this section is intended to affect or
modify the obligation or duties relating to any rules or standards of conduct
that may apply to a utility or the utility's affiliates under orders or
regulations of the Federal Energy Regulatory Commission (FERC) or the
Securities and Exchange Commission (SEC). A utility shall file with the
commission a notice of any provision in this section that conflicts with FERC
or SEC orders or regulations. A utility that is subject to statutes or
regulations in any state that conflict with a provision of this section may
petition the commission for a waiver of the conflicting provision on a showing
of good cause.
(c)
Definitions. Any terms defined in §
25.272 of this title (relating to
Code of Conduct for Electric Utilities and Their Affiliates) have the same
meanings herein.
(d) Competitive
bidding required. A utility shall conduct competitive bidding, as required by
§
25.272 of this title, to procure
products and services, other than corporate support services, that are offered
by an competitive affiliate or to sell to any competitive affiliate assets that
have a per unit value of more than $75,000, or a total value of more than $1
million. This section does not apply to transfers that facilitate unbundling
under PURA §39.051 or asset valuation under PURA §39.262.
(1) Notice. The utility shall provide
reasonable notice of any request for proposals required pursuant to this
section. Such notice shall include:
(A)
notice by publication in trade journals or newspapers as appropriate;
(B) notice by mail to persons who previously
requested to be notified of the request for proposals; and
(C) conspicuous notice on the utility's
Internet site or other public electronic bulletin board.
(2) Independent evaluator. The utility shall
use an independent evaluator when a competitive affiliate's bid is included
among the bids to be evaluated. If an independent evaluator is required, the
utility shall maintain a record of communications with the independent
evaluator. The independent evaluator shall identify in writing the bids that
are most advantageous and warrant negotiation and contract execution, in
accordance with the criteria set forth in the request for proposals. The
utility retains responsibility for final selection of products or
services.
(3) Competitive bidding
procedures. The utility shall make a request for proposals available to
interested persons by conspicuously posting the request on its Internet site or
other public electronic bulletin board.
(A)
The request for proposals must clearly set forth the eligibility and selection
criteria and shall specify the weight to be given to any non-cost selection
criteria.
(B) The utility shall
strictly enforce the criteria specified in the request for proposals.
(4) Evaluation of bids. The
utility or independent evaluator, as appropriate, shall evaluate each bid
submitted in accordance with the criteria specified in the request for
proposals. The utility or independent evaluator may not give preferential
treatment or consideration to any bid.
(5) Rejection of bids. The utility is not
required to accept a bid and may reject any or all bids in accordance with the
selection criteria specified in the request for proposals.
(e) Contracts. A utility shall file with the
commission a signed copy of any contracts entered into with a competitive
affiliate as the result of the fair, competitive bidding process described in
this section. A contract shall include, at a minimum, the following provisions:
(1) the effective date of the agreement and
parties to the agreement;
(2) the
term of the agreement;
(3) a
narrative describing the products or services provided to the utility,
including a list by specific service of all the affiliated companies who
provide or receive these services, or a narrative describing the assets being
sold by the utility to the competitive affiliate;
(4) the obligations of the parties;
(5) the price for those products, services,
or assets governed by the contract; and
(6) billing and payment procedures.
