AUTHORITY: Implementing and authorized by Sections 1-20(b)(23), 1-55, 1-58(d), 1-75(g) and (h), 1-77(d) and 1-78(i) of the Illinois Power Agency Act [20 ILCS 3855], and Section 9-220(h) and (h-1) of the Public Utilities Act [220 ILCS 5].

SOURCE: Adopted at 38 Ill. Reg. 9885, effective April 28, 2014.

SUBPART A: INTRODUCTION

 

Section 1200.100  Scope

 

This Part covers fee assessment by the Agency for development of Procurement Plans, regular procurement events, special procurement events, contract review, evaluation and mediation as required under the Illinois Power Agency Act and the Public Utilities Act.

 

Section 1200.110  Definitions

 

The following terms are defined for this Part:

 

"Act" shall mean the Illinois Power Agency Act  [20 ILCS 3855].

 

"Agency" shall mean the Illinois Power Agency.

 

"ARES" shall mean an Alternative Retail Electric Supplier, as defined in Section 16-102 of the Public Utilities Act.

 

"Attributable Portion" shall mean the share of a fixed expense assigned to a participating utility.

 

"Bidder" shall mean any person or entity that bids to provide electric supply or related energy products (e.g., renewable energy credits, energy efficiency credits, or demand response) or feedstock for any facility using clean coal technology in any amount in any procurement.

 

"Commission" shall mean the Illinois Commerce Commission.

 

"Mediation" shall have the meaning provided in the specific Section of the Act or the Public Utilities Act authorizing or requiring the Agency to offer mediation in a particular instance.

 

"Overhead" shall mean the Agency's appropriated operations budget, excluding budgeted amounts for one or more procurement administrators, as defined in Section 16-111.5(c) of the Public Utilities Act, any expert or expert consulting firm as defined in Sections 1-75(a)(1) and 1-77(a)(1) of the Act or any other individual or firm the Agency is required to retain pursuant to the Act or the Public Utilities Act.

 

"Participating Utility" shall mean any utility for which the Agency conducts a regular procurement or special procurement. 

 

"Planning Cycle" shall mean the time period starting no later than January 1 of a year and ending with the Commission issuing a Final Order in a proceeding pursuant to Section 1-78 of the Act or Section 16-111.5 or 16-111.5B of the Public Utilities Act, but in any event no later than December 31 of the same year, unless the Commission grants rehearing or a party appeals the Commission's Final Order.

 

"Procurement" shall mean any competitive bidding process overseen by the Agency or its agents, representatives or consultants.  Procurement events are limited to bidding for electric supply or related energy products (such as renewable energy credits, energy efficiency credits, or demand response) and feedstock for any facility using clean coal technology.

 

"Procurement Administrator" shall have the meaning provided in Section 1-78 of the Act.

 

"Procurement Cycle" shall mean the time from the end of the planning cycle to the execution of the final supply contract or sourcing agreement authorized in a procurement approved in the planning cycle.

 

"Procurement Event" shall mean the actual procurement of a product or products for one or more participating utilities and, as applicable, an ARES, or a State fund, regardless of whether the event results in any product being procured.

 

"Procurement Plan" shall have the meaning provided in Section 1-75(a) of the Act.

 

"Product" shall mean:

 

energy, capacity, ancillary services, other measures of electricity supplied, energy efficiency, demand response, or reductions in demand for electricity (through commercially verifiable methods such as verified voluntary load reduction) that can be measured in a singly unit specified by the Agency in the procurement document; and

 

renewable energy credits.

 

"Public Utilities Act" shall mean 220 ILCS 5.

 

"Regular Procurement" shall mean any procurement authorized by a procurement plan duly approved by the Commission.

 

"Sourcing Agreement" shall mean a contract between a clean coal SNG facility, a clean coal SNG brownfield facility, an initial clean coal facility, a clean coal facility, or any other similar bilateral contract between a facility and a public utility or ARES described in the Public Utilities Act or the Act.

 

"Special Procurement" shall mean any procurement that is not a regular procurement and that becomes mandated for a particular Procurement Cycle after its associated procurement Planning Cycle has ended.

 

"Supplier" shall mean any bidder who successfully secures the right to provide one or more units of one or more products in a procurement event.

 

Section 1200.120  Publication of Overhead

 

No later than July 1 annually, or such later date that the General Assembly approves the Agency's appropriation, the Agency shall publish on its website its budgeted overhead, which shall be based on the appropriation approved by the General Assembly for the fiscal year starting on July 1.

 

Section 1200.130  Publication of Mediation Rates

 

When the Act or the Public Utilities Act requires or allows the Agency to offer mediation services, the Agency shall, within 20 days after retaining a mediator, publish on its website the hourly rates for its retained mediator and/or Agency employees if the Agency intends to or is required to charge for mediation.

 

Section 1200.140 Statement of Policy

 

a)         It shall be the policy of the Agency to recover its authorized overhead for each fiscal year, avoid double billing any entities for the same cost, and minimize over- or under-collection while balancing considerations of cash flow. 

 

b)         The Agency further shall allocate costs consistent with the principles of cost causation, which includes directly billing any entity that directly causes a cost, to the extent practicable. 

 

c)         To the extent a particular cost or fee that the Agency is entitled to recover is not covered in this Part, the Agency may collect fees allowable under Act or the Public Utilities Act consistent with this Section.  Any funds collected other than a pass through of contract costs shall offset overhead that the Agency may collect pursuant to other Sections of this Part.

SUBPART B: REGULAR PROCUREMENTS

 

Section 1200.200  Scope

 

Each Section of this Subpart B shall be applicable only to costs incurred pursuant to Sections 1-75 and 1-77 of the Act and Section 16-111.5 of the Public Utilities Act.

 

Section 1200.210  Planning Cycle Fees Assessed to Participating Utilities

 

a)         The Agency shall assess fees to each affected utility to recover the costs incurred in preparation of the annual procurement plan for the utility. [20 ILCS 3855/1-75(g)]  These fees shall cover costs for the Agency and its agents, representatives and consultants.

 

b)         The costs incurred by the Agency and its agents, representatives and consultants shall consist of the following:

 

1)         Actual contract costs invoiced by the procurement planning consultant in furtherance of work required under or related to requirements of Section 1-75 of the Act.

 

2)         67% of the overhead budgeted by the Agency for the fiscal year, reduced by the amount of overhead collected through fees otherwise authorized in Subparts B, C and D pursuant to Section 1200.140 already collected at the time of billing during the same fiscal year, and further reduced by 67% of the interest generated by the Agency's Trust Fund to fund the Agency's Operating Fund.

 

c)         Allocation

 

1)         The Agency shall assign and allocate its costs incurred pursuant to subsection (b)(1) to reflect costs incurred in support of each of the participating utilities.  To the extent that the procurement planning consultant incurs costs in support of more than one participating utility, the Agency shall allocate costs based on the total amount of energy associated with each participating utility's total potentially eligible load in the first delivery year of the procurement as forecast in the participating utility's load forecast submitted in accordance with Section 16-111.5(d) of the Public Utilities Act.

 

2)         The Agency shall allocate costs recoverable under subsection (b)(2) between the participating utilities in the same manner as the costs allocated pursuant to subsection (c)(1).

 

d)         Notwithstanding any other subsection of this Section, in a year in which the Agency's appropriation and transfer of funds from the Illinois Power Agency Trust Fund pursuant to Section 6z-75 of the State Finance Act [30 ILCS 105] does not cover 33% of the Agency's overhead and no procurement occurs, then the Agency may recover 100% of its overhead pursuant to subsection (b)(2) of this Section.

 

Section 1200.220  Bidder And Supplier Fees

 

a)         The Agency shall recover the following costs from bidders and suppliers in all regular procurement events during a fiscal year:

 

1)         Actual costs incurred by the procurement administrator for the procurement event in which the bidder or supplier participates.

 

2)         The Agency's overhead to the extent not recovered pursuant to Section 1200.210 and Subpart D.

 

3)         If a procurement event was authorized by a procurement plan in a previous fiscal year, the Agency may collect fees from suppliers authorized in subsection (c) for the fiscal year in which the procurement event occurs.

 

b)         Each bidder shall be assessed a bid participation fee.  This fee shall be $500, or as set by the Agency after consultation with the procurement administrator. If the fee is other than $500, the Agency shall provide notice of the fee as part of bid solicitation documents.

 

c)         The Agency shall, in consultation with the procurement administrator, approve a supplier fee sufficient to recover the following costs:

 

1)         For each procurement event, the allocated costs of the procurement administrators based on principles of cost causation less the value of bid participation fees collected pursuant to subsection (b).

 

2)         The Agency, in consultation with the procurement administrator, shall allocate the procurement administrator's costs and overhead costs among products in a manner to ensure a likelihood of cost recovery and a reasonable fee in relation to the unit price of the product being procured.

 

3)         For each procurement event, each supplier shall pay a fee equal to the value in costs allocated to a particular product pursuant to subsection (c)(2), multiplied by the units of product successfully bid by the bidder in a procurement event, divided by the total number of units successfully bid by all bidders in the same procurement event.

 

4)         The value in subsection (c)(3) shall be expressed in terms of dollars per unit successfully bid.

 

d)         Notwithstanding any other provision of this Part, all fees assessed under this Section shall be due no later than 30 days after the date of the invoice from the Agency, or as specified in the supplier fee agreement.

 

e)         If the Agency conducts a procurement using the Renewable Energy Resources Fund as described in Section 1-56 of the Act, the Agency may recover the costs of the procurement from the Renewable Energy Resources Fund instead of from bidder and supplier fees, to the extent authorized by law.

 

Section 1200.230  Timing for Invoices to and Payment by Utilities

 

a)         No later than February 15 of any year, the Agency shall issue an invoice to each participating utility summarizing the total fee assessment pursuant to Section 1200.210 in the previous planning cycle.  Nothing in this subsection prevents the Agency from providing additional invoices during the fiscal year, or prevents a participating utility from inquiring as to actual or estimated fee assessments incurred pursuant to this Part at any time.

 

b)         Periodic invoices issued by the Agency pursuant to subsection (a) must be paid no later than the due date on the invoices.

 

c)         No later than March 15 of any year, each participating utility shall pay the full undisputed amount of all invoices issued pursuant to subsection (a). For any invoices issued after February 15 of the fiscal year, each participating utility shall pay the full undisputed amount of each invoice within 30 days after receipt of the invoice.

 

d)         To the extent that a participating utility disputes the amount of one or more invoices, the participating utility shall pay the undisputed amount, and all disputed amounts shall be subject to Section 1200.240.

 

Section 1200.240  Communications Regarding Fees and Fee Dispute Resolution

 

a)         The Agency may meet with representatives from participating utilities from time to time at the request of the participating utilities to discuss fees invoiced, incurred but not invoiced, or expected to be incurred and charged to the participating utility pursuant to Section 1200.200.  Notwithstanding the participating utility's request, the Agency shall offer to hold at least one meeting in the first two quarters of the fiscal year and one meeting in the second two quarters of the fiscal year with the participating utilities separately or jointly.  Nothing in this Section prevents the Agency from offering to meet with one or more participating utilities additional times or including the procurement planning consultants at one or more meetings.  All conversations pursuant to this Section are subject to any applicable reporting requirements imposed by statute or rule.

 

b)         Fee Disputes

 

1)         If any party assessed a fee has a good-faith dispute regarding fees, the party shall pay the undisputed amount in a timely fashion.

 

2)         If a party pays the disputed amount and provides written correspondence explaining the disputed amount and the grounds for dispute, full payment shall not be considered a waiver of the dispute.

 

3)         The Agency and the party shall make reasonable efforts to resolve the dispute.

 

SUBPART C: SPECIAL PROCUREMENTS

 

Section 1200.300 Scope

 

This Subpart C shall be applicable only to costs incurred in support of special procurements, to the extent that the Agency is permitted by statute to recover its costs.

 

Section 1200.310  Fees Assessment and Payment Schedules for Participating Utilities in Special Procurements

 

a)         Each participating utility shall be responsible for the costs incurred by the Agency and its agents, representatives and consultants incurred for a special procurement to the extent allowable under the Act.

 

b)         The costs incurred by the Agency and its agents, representatives and consultants shall consist of actual contract costs invoiced by the procurement planning consultant in furtherance of work required under or related to requirements of the Act or the Public Utilities Act that are not recoverable under Section 1200.320.

 

Section 1200.320  Bidder and Supplier Fees

 

a)         The Agency shall recover the following costs from bidders and suppliers in a special procurement event to the extent the fees are recoverable from suppliers under the Act or the Public Utilities Act:

 

1)         Actual costs of the procurement administrator.

 

2)         All other costs incurred by the Agency in support of the Special procurement event.

 

b)         Each bidder may be assessed a bid participation fee.  The fee shall be $500, or as set by the Agency after consultation with the procurement administrator.  If the fee is other than $500, the Agency shall provide notice of the fee as part of bid solicitation documents.

 

c)         Each supplier, defined as a bidder that is awarded at least one unit in any procurement, shall be assessed fees calculated as follows:  all costs identified in subsection (a), reduced by all fees collected from bidders pursuant to subsection (b), the product of which is to be multiplied by the number of units successfully bid by the supplier and divided by the total number of units successfully bid.

 

d)         Notwithstanding any other provision of this Part, all fees assessed under this Section shall be due no later than 30 days after the date of the invoice from the Agency, or as specified in the supplier fee agreements.

 

Section 1200.330  Timing for Invoices to and Payment by Utilities

 

To the extent that the Act or the Public Utilities Act does not have explicit timeframes for invoices to and payment by utilities, the Agency shall bill utilities not less often than quarterly.  Invoices shall be due no later than 30 days after the date of the invoice from the Agency.

SUBPART D: CONTRACT REVIEW, EVALUATION AND MEDIATION

 

Section 1200.400  Scope

 

This Subpart D shall be applicable to costs incurred in support of clean coal-related procurements authorized by Sections 1-77 and 1-78 of the Act, assistance with evaluation of bids or development of facilities other than facilities authorized under Section 1-80 of the Act (including review of any contracts, facility cost reports, or equivalent documents), or such new mandates as may be placed on the Agency from time to time.

 

Section 1200.410  Facility Cost Report or Development Plan Evaluation

 

In all instances in which the Agency is required to undertake review of a facility cost report and evaluate development plans, the Agency shall charge fees authorized in the Act or the Public Utilities Act to the party or parties from whom recovery is authorized.  These fees shall include, to the extent not otherwise recoverable, the fees of all outside consultants and attorneys.  The Agency shall bill the appropriate party or parties from time to time for the authorized fees.  Payment shall be received by the Agency within the time specified in the invoice, but no later than 60 days after the invoice date.

 

Section 1200.420  Mediation

 

When the Agency is required or permitted to offer mediation services:

 

a)         The Agency may, to the extent permitted by the Act or the Public Utilities Act, hire outside mediators at the expense of the party or parties identified in either Act.

 

b)         The Agency may recover fees for its own employees' participation in the mediation based on the following hourly rates:

 

1)         Director: $125/hour;

 

2)         Chief Legal Counsel: $100/hour;

 

3)         Other agency personnel: $75/hour.

 

c)         The Agency may recover its actual expenses on outside mediators to the extent permitted by the Act or the Public Utilities Act.

 

d)         In deciding whether to charge fees pursuant to subsection (b) or (c), the Agency shall consider the recoverability of costs pursuant to subsection (a) and the amount of time and resources required to conduct the mediation.