02.Enclosure 1-Final RFQ-WIPP with App A-F.pdf

Department of Energy

Realty Agreement for Carbon Pollution-Free Electricity Projects at the Waste Isolation Pilot Plant Site

Request for Qualifications (RFQ)

TABLE OF CONTENTS

SECTION 1.0 EXECUTIVE SUMMARY

SECTION 2.0 EXISTING CONDITIONS

SECTION 3.0 GENERAL REALTY AGREEMENT REQUIREMENTS

3.1 TERMS AND REQUIREMENTS

3.2 FINANCIAL REQUIREMENTS

3.3 DEVELOPMENT AND USE REQUIREMENTS

SECTION 4.0 INSTRUCTIONS TO OFFEROR(S)

4.1 GENERAL

4.2 RESTRICTION ON DISCLOSURE AND USE OF DATA

4.3 SUBMISSION OF RESPONSES

SECTION 5.0 BASIS OF QUALIFIED OFFEROR SELECTION

5.1 SELECTION PROCESS

5.2 EVALUATION RATINGS

SECTION 6.0 NEGOTIATIONS

6.1 STRATEGY

6.2 LEGAL DOCUMENTATION

SECTION 7.0 NOTIFICATION AND REPORTING REQUIREMENTS

LIST OF APPENDICES

Appendix A – Depiction of the Property and Existing Encumbrances Appendix B – Insurance Requirements Appendix C – DOE Mandatory Clauses Appendix D – Offeror’s Cover Page Appendix E – Non-Disclosure Agreement Appendix F – Past Performance Reference Information Form

LIST OF TABLES

Page

Table 1 – Consideration Factors, Subfactors and Submittal Format

SECTION 1.0 EXECUTIVE SUMMARY 1

a. Executive Order 13327, Federal Real Property Asset Management, states that “It is the policy of 2 the United States to promote the efficient and economical use of America’s real property assets and to 3 assure management accountability for implementing Federal real property management reforms.” 4 Furthermore, Executive Order 14057, Catalyzing Clean Energy Industries and Jobs Through Federal 5 Sustainability, directs agencies to “facilitate new carbon pollution-free electricity generation and energy 6 storage capacity by authorizing use of their real property assets, such as rooftops, parking structures, and 7 adjoining land, for the development of new carbon pollution-free electricity generation and energy storage 8 through leases, grants, permits, or other mechanisms, to the extent permitted by law.” 9

b. The Waste Isolation Pilot Plant Land Withdrawal Act, Public Law 102-579, as amended by 10 Public Law 104-201, authorizes the Secretary of Energy to permit such non-WIPP related uses of the 11 Withdrawal as the Secretary determines to be appropriate. 12

c. Pursuant to the foregoing Executive Orders and statutory authority, the Department of Energy 13 (DOE) (the “Government” or “DOE”) is issuing this Request for Qualifications (the “RFQ”) to solicit 14 proposals from entities interested in entering into a long-term realty agreement for all or a portion of 15 identified real property located at the 16

d. Waste Isolation Pilot Plant (WIPP) site in southeastern New Mexico State. The Realty 17 Agreement, anticipated to be an easement with the Government is for the purposes of financing, 18 permitting, developing, constructing, installing, owning, maintaining and operating, decommissioning, 19 and property restoration for a carbon pollution-free electricity (CFE)1 generation and/or energy storage 20 facility and such conduits, lines, wiring, electrical systems, interconnection facilities, and other ancillary 21 facilities and equipment reasonably required for the installation, maintenance, and operation of a 200+ 22 MW CFE generation and/or energy storage facility and its interconnection with the local public electric 23 utility system for private and/or public use and operation (collectively referred herein as the “Project”). 24 The real property is comprised of approximately 9000 contiguous acres of land located approximately 26 25 miles east of Carlsbad, NM, and approximately 40 miles west of Hobbs, NM. The Government 26 anticipates entering into a realty agreement that includes the following periods: 1) three to five years for 27 project development to complete NEPA (National Environmental Policy Act) (see below), address 28 interconnection and other regulatory requirements, secure project financing, and complete project design; 29

2) a project construction timeline consistent with commercial best practices for constructing a project of 30 the proposed type; and 3) an initial operations period that is expected to be for 30-40 years with potential 31 renewal periods. In accordance with and subject to the terms, requirements, and conditions of this RFQ, 32 the Government will evaluate all proposals received from Offerors in order to qualify and select one or 33 more “Qualified Offeror(s)” with whom to enter into realty agreement negotiations. A Qualified Offeror 34 with whom the Government enters into a written and legally binding realty agreement is hereinafter 35 referred to as a “Selectee”. 36

e. The Government’s objectives in issuing this RFQ and entering into a realty agreement for the 37 Property (Realty Agreement Objectives) include, but are not limited to, the following (collectively, the 38 “Objectives”). 39

Qualifying and selecting one or more Qualified Offeror(s) that will: 40

1 Executive Order on Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability (December 8, 2021) section 603(d) Definitions, “Carbon pollution-free electricity” means electrical energy produced from resources that generate no carbon emissions, including marine energy, solar, wind, hydrokinetic (including tidal, wave, current, and thermal), geothermal, hydroelectric, nuclear, renewably sourced hydrogen, and electrical energy generation from fossil resources to the extent there is active capture and storage of carbon dioxide emissions that meets EPA requirements.

1. enter into a realty agreement for the Property (or portion of) for the purposes set forth in 1 section 1.0.c in accordance with DOE’s legal authorities and consistent with the terms 2 documented in the RFQ; 3

2. provide consideration to the Government (in cash) in exchange for granting a realty 4 agreement interest in the Property; 5

3. enter into a realty agreement for use of the Property in a manner that minimizes risk to 6 the Government; 7

4. enter into a realty agreement for use of the Property in a manner that is compatible with 8 the Government mission and adjacent Government uses; 9

5. enter into a realty agreement for use of the Property in a manner that minimizes and/or 10 mitigates environmental and cultural impacts; 11

6. enter into a realty agreement for use of the Property consistent with best commercial 12 practices; and 13

7. enter into a realty agreement for use of the Property in a manner that supports the 14 relationships with the State of New Mexico, local Governmental authorities, and the surrounding 15 communities. 16

SECTION 2.0 EXISTING CONDITIONS 18

a. THE PROPERTY WILL BE PROVIDED “AS-IS/WHERE-IS” WITHOUT ANY 19

WARRANTIES, REPRESENTATIONS OR GUARANTEES, EITHER EXPRESSED OR IMPLIED, OF 20

ANY KIND, NATURE OR TYPE WHATSOEVER, FROM OR ON BEHALF OF THE 21

GOVERNMENT. 22

b. There are no entitlements being granted or conveyed with the use of the Property to the Selectee 23 by the Government other than those activities necessary for the specified purpose and described in the 24 realty agreement. As used in this RFQ, the term “entitlements” means those land or development rights 25 required for the development of Selectee improvements on the Property in accordance with federal, state, 26 and local regulations, rules, ordinances, policies, and laws. Offeror(s) shall rely solely and exclusively on 27 their own independent investigation and due diligence in determining whether the Property is suitable for 28 their proposed use. The Property is more generally depicted in Appendix A (“Depiction of the Property 29 and Existing Encumbrances”) attached hereto and incorporated herein by this reference. 30

c. Without limiting the foregoing and notwithstanding anything herein to the contrary, to the best of 31 the Government's actual knowledge, the Government is not aware of any existing conditions that would 32 prevent development on the Property, except as is expressly provided in Appendix A and any other 33 information disclosed or made available to the Offeror(s), Qualified Offeror(s), and/or Selectee(s). To the 34 extent possible, the Government will provide Offeror(s) with access to all relevant and available 35 environmental documentation concerning the Property known, to the best of the Government’s actual 36 knowledge, to be in the Government’s possession. The Government is conducting radiological clearance 37 and an Environmental Site Assessment of the Property. Background information on the WIPP Site is 38 available at www.wipp.energy.gov and information on the existing environment at the WIPP Site is 39 posted at Microsoft Word - DOE-WIPP-93-004_REV_H_Edited_Final_CLEAN (energy.gov) As used in this 40 RFQ, the term "Actual Knowledge" means the information actually known to the Government or that 41 could be reasonably inferred to have been known to the Government after reasonable investigation. 42 Offerors shall rely solely and exclusively on their own independent investigation and due diligence in 43 determining whether the Property is suitable for their proposed use. 44

d. DOE’s decision whether to execute a realty agreement is subject to several environmental laws 45 https://www.wipp.energy.gov/ https://wipp.energy.gov/library/seis/DOE-WIPP-93-004_Reprint%20H_Signature_on_File.pdf and regulations, including NEPA (42 U.S.C. § 4321, et seq.). NEPA requires federal agencies to consider 1 the potential environmental impacts of their proposed actions prior to making a decision. For additional 2 background on NEPA, please see DOE’s NEPA website, at https://www.energy.gov/nepa. The National 3 Historic Preservation Act (NHPA) (54 U.S.C. § 300101, et seq.) requires federal agencies consider the 4 impact of their actions on historic properties. For additional background on NHPA, please see the 5 Advisory Council on Historic Properties website at https://www.achp.gov. 6

e. NEPA and NHPA compliance is a federal agency responsibility and the ultimate decision remains 7 with the federal agency. All Qualified Offerors/Selectee(s) will be required to assist in the timely and 8 effective completion of applicable regulatory processes, as appropriate, in the manner most pertinent to 9 their proposed project. DOE may choose to enter a third-party agreement wherein the Qualified 10 Offeror(s)/Selectee(s) pays an environmental contractor of DOE’s choosing to prepare the required 11 regulatory documentation (e.g., NEPA document), and DOE directs the work of that environmental 12 contractor. DOE must fully comply with applicable regulatory processes (e.g., NEPA and NHPA) prior to 13 realty agreement execution, or if the regulatory processes are not completed before realty agreement 14 execution then the agreement shall be contingent on completion of applicable regulatory processes (e.g., 15 NEPA and NHPA). 16

f. For this site, compliance is also required with the Waste Isolation Pilot Plant Land Withdrawal 17 Act (LWA). For information on the LWA, please visit this website - PUBLIC LAW 102-579 18 (energy.gov). Requirements for compliance with the LWA are also contained in the Land Management 19 Plan for the site found here - Microsoft Word - DOE-WIPP-93-004_REV_H_Edited_Final_CLEAN 20 (energy.gov) 21

g. The Qualified Offeror(s)/Selectee(s) shall be responsible, at its own expense, for all required 22 permit(s) and compliance with applicable laws and regulations. 23

h. The Qualified Offeror(s) and Government shall reach an agreement with respect to the physical 24 appearance and condition of the Property, and shall prepare and execute a Physical Condition Report 25 evidencing their agreement prior to execution of the realty agreement. 26

i. The Government is leasing the Property subject to all existing encumbrances (recorded and 27 unrecorded). To the best of the Government's Actual Knowledge, a list of such encumbrances is attached 28 hereto as Appendix A (the “Depiction of the Property and Existing Encumbrances”). 29

j. The Property is located within Eddy County, New Mexico and is located approximately 26 miles 30 southeast of the City of Carlsbad. 31

SECTION 3.0 GENERAL REALTY AGREEMENT REQUIREMENTS 33

This Section 3, inclusive of sub-sections, lists general requirements that shall be complied with by the 34 Selectee(s) and/or the Government to enter into a Realty Agreement for the Property (collectively, the 35 “General Realty Agreement Requirements”). This is not an exhaustive list of requirements; there may 36 be other requirements which may apply to the use of the Property proposed by the Offeror(s). The 37 Government has the right to impose any and all requirements necessary or desired to ensure the realty 38 agreement is in compliance with applicable local, State, and Federal laws, regulations, and DOE policies. 39

3.1 TERMS AND REQUIREMENTS 40

a. The Offeror(s) shall provide anticipated realty agreement terms for the three periods previously 41 identified – development, construction, and initial operations, consistent with commercial best practices 42 for the proposed project type. DOE may ask for further justification as needed. 43

b. Transfers, assignments, and subleases are not permitted without written approval by DOE, which 44 https://www.energy.gov/nepa https://www.achp.gov/ https://www.achp.gov/ https://wipp.energy.gov/library/CRA/CRA%202019/T%20-%20W/USC%20%201996%20%20LWA%20Public%20Law%20102-579.pdf https://wipp.energy.gov/library/CRA/CRA%202019/T%20-%20W/USC%20%201996%20%20LWA%20Public%20Law%20102-579.pdf approval shall not be unreasonably withheld. Where Qualified Offeror(s) will be arranging tax equity 1 financing for the Project, DOE will consider transfers, assignments, or subleases. 2

c. The Government and its agents and employees reserve the right to enter the Property at 3 reasonable times, and at any time if an emergency, without charge, liability, or abatement of rent, for any 4 purposes not inconsistent with the Selectee’s permitted use. 5

d. The Government shall have the right to terminate the Realty Agreement for cause, such as due to 6 non-use or non-payment, with the specifics to be determined during the Negotiation Period. 7

e. During negotiations, the Government and the Qualified Offeror(s) will negotiate and mutually 8 agree to the consideration which will be provided by the Selectee(s) to the Government for the three 9 periods – development, construction, and initial operations. 10

f. The Selectee’s realty agreement interest in the Property and its operations and activities on the 11 Property may be taxed by State and local governments. 12

g. The Selectee’s use(s) of the Property shall be compliant with the realty agreement terms, all 13 applicable laws and regulations, and compatible with the mission of the DOE site at which the Property is 14 located. 15

h. The Selectee(s) shall ensure that insurance policies required are obtained and maintained 16 throughout the term of the realty agreement in accordance with the requirements set forth in Appendix B 17 (the “Insurance Requirements”) attached hereto and incorporated herein by this reference. 18

i. Any and all utilities and services necessary or required for the Property or the Project as a result 19 of, or related to, this realty agreement shall be obtained and provided for by the Selectee(s), at its sole cost 20 and expense. 21

j. This RFQ does not require or otherwise obligate the DOE to purchase any service or product from 22 or of the Project. 23

k. The Selectee(s) are not permitted to interconnect to any DOE-owned electrical 24 infrastructure/assets without written approval by DOE, which may be withheld for any reason. The 25 Selectee(s) have full responsibility to find and execute an appropriate point of transmission-level 26 interconnection. 27

l. Upon the expiration or earlier termination of the realty agreement, the Selectee(s) shall, at no cost 28 to the Government and to the reasonable satisfaction of the Government, demolish or remove all or a 29 portion of, as designated by the Government, structures or improvements located on the Property, 30 abandon, vacate or remove utilities or other infrastructure from the Property, restore the Property and 31 surrender Property to the Government in the condition it existed on the date the Realty Agreement was 32 executed. The Government, at its sole discretion and subject to applicable law, may, upon written request 33 by the Selectee(s), elect to retain all or a portion of the Realty Agreement Improvements located on the 34 Property, without compensation to the Selectee(s). Selectees must provide a detailed 35 reclamation/restoration plan as part of their Land Use Request (LUR) as required in the LMP. 36

3.2 FINANCIAL REQUIREMENTS 37

a. The Qualified Offeror(s) must provide the Government documented evidence demonstrating that 38 the Qualified Offeror(s) has or will have all funds/financing necessary to accomplish and complete 39 planning, design, permitting, and construction of the energy generation and/or energy storage facility on 40 or before the date of Realty Agreement execution. This could include, but is not limited to a corporate 41 parent guarantee, letter of credit facility, or audited financial statements. 42

b. The Selectee(s) shall not cross-collateralize or cross-default the Realty Agreement, or the assets 43 or revenues of the Project, without prior written approval of the Government, which approval shall not be 44 unreasonably withheld. The Selectee(s) shall not assign, pledge, provide as collateral, or otherwise 1 transfer its interest in the Realty Agreement, in the net cash flows, or in the ownership of the Project, in 2 whole or in part, without prior written approval of the Government. Where the Selectee will be arranging 3 tax equity financing for the project, the Selectee shall seek prior written approval of the Government for 4 any planned future changes in the Project ownership or cash flows. 5

c. The Selectee(s) shall be solely responsible for the payment of any property taxes, personal 6 property taxes and assessments, including special assessments, utility rents, any charges imposed in lieu 7 of ad valorem taxes, and all other taxes or charges levied against the Project (including the costs of 8 contesting such taxes), or assessments levied against the Selectee’s interest in the use of the Property or 9 against its activities or operations on the Property. 10

d. The Government may require the Selectee(s) to establish and maintain a decommissioning bond 11 to manage the demolition of improvements installed by or for the Selectee(s) on the Property and restore 12 the Property to the condition in which it existed on the date the Realty Agreement was executed, upon the 13 expiration or termination of the Realty Agreement. 14

e. The Selectee(s) shall, at its sole expense, obtain any and all required permits and approvals and 15 pay all required expenses and fees in connection with its development of the Project. 16

3.3 DEVELOPMENT AND USE REQUIREMENTS 17

a. All development activities on the Property shall be in accordance with applicable Federal, State, 18 and local laws rules, regulations, and ordinances, including building codes, as they may be amended from 19 time to time. 20

b. The Project shall be viable without any commitment or contribution, monetary or otherwise, from 21 the Government. 22

c. All development and construction on the Property shall be compatible with the plans, programs, 23 and missions of the DOE site at which the Property is located. 24

d. Development and construction on the Property will be subject to DOE security requirements. 25

e. Relocation of existing improvements on the Property, if any, shall be at the Selectee’s sole cost 26 and expense and will be subject to Government’s consent and approval, which may be conditioned or 27 denied. 28

f. The Selectee(s) shall, at its sole cost and expense, erect a fence or boundary demarcation around 29 the perimeter of the Property, as deemed necessary by the Government and of a type and kind approved 30 by the Government. 31

g. Prior to the commencement of any construction, the Selectee(s) shall deliver to the Government 32 payment or decommissioning bond in amounts and subject to conditions deemed acceptable to the 33 Government. 34

h. All uses and activities on the Property shall be in compliance with all applicable Federal, State 35 and local laws, rules, regulations, and ordinances. 36

i. The Property shall not be used or permitted to be used in any way or for any purpose except as 37 expressly permitted by the Government and set forth in the Realty Agreement. 38

j. The following uses and activities are prohibited on the Property due to security and operational 39 incompatibility: 40

1. Any use or activity that adversely affects the health or safety of the project development 41 workforce, community or the Government, and its mission execution workforce. 42

2. Structures, activities, and operations that adversely affect site security. 43

3. Any use or activity that is incompatible with environmental, operational or land use 1 constraints. 2

SECTION 4.0 INSTRUCTIONS TO OFFEROR(S) 4

4.1 GENERAL 5

a. This RFQ is not for an acquisition of goods, services, or facilities for DOE consumption/use and 6 as such, is not governed by the Federal Acquisition Regulation (FAR). This RFQ supports a real estate 7 transaction granting temporary use of DOE controlled property. DOE is opting to solicit responses to this 8 RFQ to inform a decision on granting one or more realty agreements (anticipated to be an easement(s)) on 9 this Property, but DOE retains its right to grant use of this Property in any manner it deems appropriate, 10 consistent with applicable laws and regulations. 11

b. In no event shall this RFQ or any agreement arising as a result of this RFQ require or otherwise 12 obligate the DOE to purchase any service or product from or of the Project. The Government makes no 13 representations regarding the Offeror’s ability to secure an agreement(s) for sale and purchase of the 14 services or products arising directly or indirectly from the Project, Realty Agreement, or the Property. 15

c. Responses to comments and questions were considered in development of the Final RFQ. All 16 information concerning the Final RFQ, including generalized responses to questions from prospective 17 Offeror, will be available to all other prospective Offerors. If the information is necessary in submitting 18 offers, or if the lack of it would be prejudicial to any other prospective Offerors, the information will be 19 provided in response to comments or may be furnished as an amendment to the RFQ. 20

d. After the receipt and evaluation of acceptable responses to this RFQ, the Qualified Offeror(s) and 21 the Government may negotiate the terms, conditions, agreements, plans, and schedules, etc. to effectively 22 implement the Qualified Offeror’s proposed development, use, management and operation of the Property 23 in a manner that is acceptable to the Government. Selected Qualified Offeror(s) and unselected Offeror(s) 24 may ask for a debriefing from the Government selection team. 25

e. While the Government intends to enter into a realty agreement with one or more Qualified 26 Offeror(s), it is under no obligation to do so and reserves the right to cancel this RFQ and reject all 27 submissions at its sole discretion. The Government reserves the right to suspend and/or amend all 28 provisions of the RFQ and to waive informalities and minor irregularities in offers received where it is in 29 the Government’s best interest to do so. 30

f. By participating in the RFQ process, Offerors agree to indemnify and hold harmless the United 31 States, its officers, employees, and consultants from all claims, liabilities, and costs related to this RFQ. 32 Under no circumstances will the Government be liable for any real estate brokerage commissions, 33 finder’s fees, or other forms of compensation related in any way to activities undertaken by any person as 34 a result of this RFQ. This includes any and all activities related to negotiations with the Qualified 35 Offeror(s). 36

g. This RFQ may be amended by formal written amendment. If this RFQ is amended, then all terms 37 and conditions that are not amended remain unchanged. 38

h. The RFQ response/proposal shall contain the Offeror’s best terms and be complete in accordance 39 with this RFQ. The Government may, at its sole discretion, conduct discussions with one or all Offeror(s), 40 at any time, and for any reason, to clarify information in the submittal, typically through evaluation 41 notices (ENs) after Offeror(s) submissions and prior to selection of a Qualified Offeror(s). Any EN 42 responses become part of the Offeror(s) submission and will be considered by the Government in making 43 its Qualified Offeror(s) selection. 44

i. Offerors shall comply with the DOE Mandatory Clauses attached as Appendix C (the “DOE 45

Mandatory Clauses”) hereto and incorporated herein by this reference, if required based on the specific 1 project, terms, and conditions negotiated. Compliance with these clauses shall be required during the term 2 of the Realty Agreement. 3

j. Proposals that fail to furnish required information or that fail to fulfill any of the required terms and 4 conditions of this RFQ may be rejected by the Government. Any Offeror whose proposal is rejected for 5 being incomplete may be notified by the Government of the material deficiencies in its proposal. Proposals 6 that are rejected will not be evaluated by the Government. 7

k. Offerors shall submit a signed cover letter as shown in Appendix D (the “Offeror’s Cover 8 Page”) attached hereto and incorporated herein by this reference. Each proposal must contain the name 9 and mailing address of the Offeror and be properly executed. A proposal executed by an attorney or agent 10 on behalf of the Offeror shall be accompanied by two authenticated copies of the power of attorney or 11 other evidence of agency or authority to act on behalf of the Offeror. If the Offeror is a corporation, a 12 corporate officer authorized to bind the corporation must execute the Offeror’s Cover Page and provide a 13 corporate certificate or resolution evidencing that corporate officer’s authority to submit a proposal to 14 enter into a Realty Agreement for the Property in response to this RFQ. If the Offeror is a Partnership, 15 Limited Liability Company or any other entity, the Offeror must provide evidence that the party signing 16 the Offeror’s Cover page has the authority to sign or bind the entity. 17

4.2 RESTRICTION ON DISCLOSURE AND USE OF DATA 18

a. Offeror(s) should not include trade secrets or business-sensitive, proprietary, or otherwise 19 confidential information in their qualifications unless such information is necessary to convey an 20 understanding of the proposed project or to comply with a requirement in the response to the RFQ. 21 Applicants are advised to not include any critically-sensitive proprietary detail. All submitted responses 22 are subject to 5 U.S.C. § 552, the Freedom of Information Act (FOIA), and may be released publicly. 23

b. Offeror(s) who choose to submit trade secrets or business-sensitive, proprietary, or otherwise 24 confidential information, must provide two copies of the submission. The first copy should be marked 25 “non-confidential,” with the information believed to be confidential deleted. The second copy should be 26 marked “confidential” and must clearly and conspicuously identify the trade secrets or business-sensitive, 27 proprietary, or otherwise confidential information and must be marked as described below. This 28 restriction does not limit the Government’s right to use information contained in this data if it is obtained 29 from another source without restriction. Failure to comply with these marking requirements may result in 30 the disclosure of the unmarked information under FOIA or other applicable laws. The federal government 31 is not liable for the disclosure or use of unmarked information and may use or disclose such information 32 for any purpose as authorized by law. 33

c. Offerors who include in their proposals data that they do not want disclosed to the public for any 34 purpose or used by the Government except for evaluation purposes, shall mark the title page with the 35 following legend: “This proposal includes data that shall not be disclosed outside the Government and its 36 representatives and shall not be duplicated, used, or disclosed in whole or in part for any purpose other 37 than to evaluate this proposal.” Mark each page of restricted data with the following legend “Use or 38 disclosure of data contained on this page is subject to the restriction on the title page of this proposal.” 39

d. If, however, a Realty Agreement will be signed with a Qualified Offeror as a result of or in 40 connection with the submission of this data, the Government shall have the right to duplicate, use, or 41 disclose the data to the extent provided in the resulting Realty Agreement or as needed for Environmental 42 Documentation or as required under the Freedom of Information Act. Offerors should be aware, however, 43 that the Government may share financial information with Congressional committees, if requested by the 44 committees as part of their oversight function. The Government shall prepare and return the Non-45 Disclosure Agreement attached in Appendix E (the “Non-Disclosure Agreement”) hereto and 46 incorporate herein by this reference to each Offeror following the receipt of their proposal for the WIPP 47

CFE Project. 1

4.3 SUBMISSION OF RESPONSES 2

a. Offerors shall submit responses, proposals, and information in response to this RFQ via e-mail 3 directly to EMCleanEnergy@em.doe.gov no later than May 15, 2024 (the “RFQ Response Due Date”). 4

b. Submitted responses, proposals, and information shall correspond with the Sections, Factors, and 5 Subfactors listed in Table 1 and further described in Sections 4.4 through 4.7. Submitted responses are 6 limited to 60 total pages (single side, 8.5 x 11 inch page and standard 12 point font) using Microsoft 7 Word and/or Adobe Systems Portable Document Format (PDF). Pages exceeding this limit will not be 8 accepted, reviewed, or evaluated. Financial documents/statements and completed past performance forms 9 (Appendix F) do not count towards the total page or PDF limit. 10

c. Offerors should be aware and consider within their proposal that the Selection Official may also 11 consider program policy factors, as addressed in Section 5.1.1, in determining which proposal(s) to select 12 for subsequent negotiations. Offerors should include specific information regarding which, if any, of the 13 program policy factors their proposal fulfills for consideration by the Selection Official. 14

d. Offerors shall include with their proposals and submit a minimum number of committed Energy 15 Attribute Certificates (EACs) from the Project to be retired on DOE’s behalf on an annual basis in 16 accordance with Appendix C, item entitled “RETIRED ENERGY ATTRIBUTE CERTIFICATES 17

FROM SITE HOSTED PROJECT”. 18

Table 1 – Consideration Factors, Subfactors and Submittal Format 19

SECTION FACTORS FOR CONSIDERATION

A Factor 1 – Project Description Subfactor 1.1 – Proposed Technology, System and Production Capabilities

Subfactor 1.2 – Market Analysis, Project Feasibility and Power Sale/Off-take Plans

Subfactor 1.3 – Project Development, Interconnection, Construction and Operations

B Factor 2 – Return to the Government

C Factor 3 – Capability and Experience Subfactor 3.1 – Organizational Structure and Experience

Subfactor 3.2 – Financial Capability

D Factor 4 – Project Plan and Schedule

4.4 SECTION A, FACTOR 1 – PROJECT DESCRIPTION SUBMITTAL 20

REQUIREMENTS 21

4.4.1 SUBFACTOR 1.1: PROPOSED TECHNOLOGY, SYSTEM AND PRODUCTION 22

CAPABILITIES 23

a. Offeror(s) shall submit a narrative, with supporting figures and schematics, as needed, describing 24 and illustrating the proposed energy technologies, systems and production capabilities to be developed. 25 mailto:EMCleanEnergy@em.doe.gov

The submitted narrative shall include at least the following: 1

1. Description of the proposed system sizes and types (including expected annual MWh 2 generation), site considerations, subcomponents and ancillary equipment; and 3

2. Description of the major mechanical and electrical equipment and/or subsystems required 4 to incorporate into an operable, integrated system to include the interconnection to support the 5 single, phased, or scalable development. 6

3. This narrative shall demonstrate compliance with Realty Agreement Objectives described 7 in Section 1 and with the General Realty Agreement Requirements outlined in Section 3. 8

b. Offeror shall explicitly state its interest in all or a portion of the available Property. An Offeror 9 interested in a portion of the available Property shall explicitly identify the desired portion and acreage 10 in the submitted narrative, schematics, or plans. 11

c. The Offeror must also supply all information required in a LUR as outlined in Appendix B of the 12 LMP – Guide for the Completion of a Land Use Request. 13

4.4.2 SUBFACTOR 1.2: MARKET ANALYSIS, FEASIBILITY AND POWER 14

SALE/OFF-TAKE PLANS 15

a. The Offeror(s) shall explicitly document the market demand and market feasibility analysis for 16 their proposed Project; explicitly demonstrating that the proposed Project is viable and represents the 17 highest CFE production output given the characteristics of the site and market conditions and best use 18 of the Property. The submitted narrative shall include at least the following: 19

1. A narrative detailing the marketing strategy for the proposed Project (considering the 20 current and anticipated market demand for the proposed Project); and 21

2. A description of off-take agreements being actively pursued by the Offeror(s); or off-take 22 agreements already executed evidencing the viability of the Project. If not already pursued or 23 obtained, Offeror(s) shall submit plans and estimated schedules for obtaining one or more off-24 take agreements for the proposed Project’s generation. 25

4.4.3 SUBFACTOR 1.3: PROJECT DEVELOPMENT, INTERCONNECTION, 26

CONSTRUCTION AND OPERATIONS 27

a. Offeror(s) shall submit a narrative describing their proposed Project including a plan for the 28 development, interconnection, construction, operation, and decommissioning of the Project. This 29 narrative shall include at least the following: 30

1. Description of the anticipated leases, easements, agreements, etc. needed to develop and 31 operate the proposed development; 32

2. Plan to work with Xcel Energy and/or other utilities to complete the needed 33 interconnection studies, acquire and maintain an interconnection queue position, and obtain 34 necessary regulatory approvals; 35

3. Information regarding transmission availability and plan to secure transmission access as 36 needed; including any existing queue positions; 37

4. List of and a plan to obtain and comply with all applicable regulations, permits, 38 approvals, codes, standards, and specifications critical to the development, construction, and 39 operational performance of the proposed facilities; 40

5. A conceptual site plan describing all proposed improvements, including but not limited to 41 proposed facilities, fences, infrastructure, areas of ingress/egress, and storm water management 42 areas; 1

6. A conceptual utility plan for provision of utility services used for the Property and 2 proposed Project; 3

7. Description of the Project impact(s), if any, on surrounding communities, local 4 government, and governmental authorities; 5

8. A description of the decommissioning/restoration plans after the operational realty 6 agreement and any extensions have expired, including re-use and/or recycling plans; and 7

9. A Project environmental sustainability plan. 8

4.5 SECTION B, FACTOR 2 – RETURN TO THE GOVERNMENT 9

a. Rental Consideration: Offeror(s) shall document their proposed rental consideration to be 10 provided to the Government in exchange for the realty agreement interest in the Property. This should 11 include the three realty agreement periods: development, construction, and initial operations. For the 12 rental consideration, Offeror(s) shall provide 1) a price ($/acre-year) and 2) any assumed annual 13 escalation rate to be applied. This shall be substantiated with relevant empirical and quantitative data and 14 analysis to include: 15

1. Current real estate market conditions for similarly situated property; and 16

2. Consideration of all relevant facts and circumstances that may influence the proposed 17 rent. 18

4.6 SECTION C, FACTOR 3 – CAPABILITY AND EXPERIENCE 19

4.6.1 SUBFACTOR 3.1: ORGANIZATIONAL STRUCTURE AND EXPERIENCE 20

a. The Offeror(s) shall provide a narrative detailing its organizational structure, including legal form 21 of ownership and management. If the Offeror is teaming with one or more business organizations for 22 any portion of the Project, then it shall provide a narrative detailing: (i) what each team member is 23 responsible for performing, (ii) the extent to which the team has worked together in the past, (iii) legal 24 form of ownership and management of each team member, and (iv) (if it is a team member other than 25 the Offeror) expressly identify the team member organization that will be accountable and responsible 26 for Project financing, development, construction, performance, operation, management, and 27 sustainment. Identify the key management personnel and legal counsel designated and authorized to 28 represent the Offeror in all negotiations with the Government, and throughout the transaction execution 29 and financial closing process. 30

b. Utilizing Appendix F (Past Performance Reference Information Form) provide requested 31 information of the most recent and relevant work completed or in progress by the Offeror of projects 32 that are similar to the Offeror’s proposed Project (no more than three projects, completed form limited 33 to three pages per reference project, completed past performance forms will be excluded from the 60 34 page proposal limit). The submittal shall provide details explaining the financing; design; construction; 35 management; and operation of those projects and specifically state how the Offeror accomplished them 36 directly or if they were accomplished by another party, list the name of said other party. The submittal 37 shall also include information describing the location, cost, project capacity, schedule, safety 38 performance, and off-take agreements. If similar projects are not within the past 5 years, provide safety 39 performance statistics for the company for the past 5 years. For the purposes of this factor, “relevant 40 work” means work of scope, magnitude and complexity that are similar to the Offeror’s proposed 41 Project. 42

4.6.2 SUBFACTOR 3.2: FINANCIAL CAPABILITY 43

a. The Offeror(s) shall provide evidence of bonding capacity to fulfill the decommissioning bonding 1 requirement and show how the bond amount(s) are derived. In the event that an alternative to bonding is 2 being proposed, provide information on the alternative and explain how it better protects the 3 Government’s interests versus a surety bond. 4

b. Provide evidence of sufficient funds or financing to support the proposed Realty Agreement and 5 Project; including permitting, engineering, design, construction, and operation and maintenance of the 6 Project throughout the proposed term of the Realty Agreement. This could include, but is not limited to, 7 a corporate parent guarantee, letter of credit facility or similar documentation. 8

c. Provide Financial Statements complete with notes and accompanied by an auditor’s assertion of 9 accuracy or reviewed by Certified Public Accountant for the most recent two years, and other 10 documentation, including that of any equity contributors, in order to demonstrate the Offeror’s financial 11 strength. Financial statements must have been audited in accordance with Generally Accepted 12 Accounting Principles. 13

d. If any financial statements and submitted information note any litigation, disputes, claims, 14 Unified Commercial Code (UCC) filings or similar circumstances, the Offeror(s) shall provide the 15 current status of each matter in full detail. 16

4.7 SECTION D, FACTOR 4 – PROJECT PLAN AND SCHEDULE 17

a. Offeror(s) shall document their project development objectives and schedule in a notional 18 “Integrated Project Plan and Schedule” showing all the activities and agreements necessary to achieve 19 realty agreement execution and Project completion and shall specifically include, among other things: 20

1. Any and all agreements, other than a realty agreement, anticipated to be necessary for the 21 Project and/or other business arrangements with the Government and other stakeholders; 22

2. Permits and other environmental regulatory approvals anticipated to be necessary for the 23 development, construction, and operation of the Project; 24

3. Financing and off-take agreements anticipated to be necessary for the development, 25 construction, and operation of the Project; and 26

4. Critical path milestones and activities such as negotiation of transaction documents and 27 agreements, NEPA, interconnection, design, permitting, financing, realty agreement closing, 28 construction and operation. 29

b. Identify all stakeholders, utilities (including Xcel Energy), regulators, and Federal and non-30 federal government entities anticipated to grant permits, approvals, or consent related to the development, 31 construction, and/or operation of the Project and explain the proposed approach to successfully interact 32 with Government and other stakeholders to efficiently execute the Project. 33

SECTION 5.0 BASIS OF QUALIFIED OFFEROR SELECTION 35

5.1 SELECTION PROCESS 36

5.1.1 FACTORS FOR CONSIDERATION 37

a. Factors 1, 2, 3 and 4 will be assigned adjectival evaluation ratings. The Government will rank and 38 select the Offeror(s) and proposal(s) that provide the combined highest performance expectations and 39 confidence to the Government based upon an integrated and cumulative assessment of all the 40 consideration factors and sub-factors listed in Table 1 of Section 4 above; Factor 1 (Project 41 Description), Factor 2 (Return to the Government), Factor 3 (Capability and Experience), and Factor 4 42 (Project Plan and Schedule). Additional consideration may be given to Offerors with high rankings in 43

Factors 1 and 3. The Selection Official may also consider factors described below in determining which 1 proposal to select for subsequent negotiations. 2

b. In order to promote an efficient competition and to avoid the unnecessary expenditure of 3 resources by Offerors, the Government reserves the right (in its sole and absolute discretion) to 4 establish a competitive range at any point in the evaluation process and to remove from the competitive 5 range any Offeror whose proposal, in the judgment of the Government, stands no reasonable likelihood 6 of being selected as a Qualified Offeror. 7

c. The Selection Official may also consider the following program policy factors in determining 8 which proposal to select for subsequent negotiations: 9

• The degree to which the proposed project supports underrepresented populations2. 10

• The degree to which the proposed project is likely to lead to increased high-quality employment 11 in southeastern New Mexico. 12

• The degree to which the proposed project incorporates applicant or team members from regional 13 institutions of higher education. 14

• The degree to which the proposed project incorporates some form of community ownership. 15

• The degree to which the proposed project supports America’s clean energy industry development 16

(inclusive of the use of American made products) and supports the Sites sustainability goals 17 through the retirement of Project specific EAC’s. 18

5.1.2 FACTOR 1: PROJECT DESCRIPTION 20

a. Offeror’s proposals will be evaluated against the requirements of Factor 1, inclusive of each sub-21 factor. Subfactor 1.1: The Government will evaluate the Offeror’s submitted proposed technology, 22 project description, expected annual MWh generation, and land area requested for technical viability and 23 reasonableness. Additionally, the technical and conceptual narrative and submitted information will be 24 evaluated for clarity, feasibility, and compliance with the requirements of this RFQ, the Realty 25 Agreement Objectives listed in Section 1, the General Realty Agreement Requirements in Section 3, and 26 any applicable requirements, authorities, and constraints. Additional consideration may be given to 27 projects with higher CFE production output given the characteristics of the site and market conditions. 28

b. Subfactor 1.2: The Government will evaluate the Offeror’s submitted market strategy for 29 reasonableness and that its analysis demonstrates both that there is a commercial market (non-DOE) 30 demand and that the commercial market demand can be satisfied in a manner that is consistent with the 31 RFQ Requirements and Realty Agreement Objectives. The Government will evaluate the probability of 32 commercial success for the proposed Project, considering market competitiveness of the proposed project. 33 Additional consideration may be given to Offerors with contracted off-take arrangements already in place 34 for the project. 35

c. Subfactor 1.3: The Government will evaluate the Offeror’s submitted narrative describing their 36 plan for development, construction, interconnection (transmission), operation, maintenance, and 37 decommissioning for the proposed project, inclusive of descriptions and plans for real estate agreements, 38

2 “Underrepresented” refers to populations sharing a particular characteristic, as well as geographic communities, that are shown to have been systematically denied a full opportunity to participate in aspects of economic, social, and civic life, as exemplified by communities that have been denied fair, just, and impartial treatment, which may include Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; persons otherwise adversely affected by persistent poverty or inequality; women; and veterans.

interconnection, transmission availability, regulatory compliance (e.g., plan’s consistency with NEPA and 1 NHPA requirements), permitting, site improvements, utilities, and project sustainability. The submitted 2 narrative and information will be evaluated for reasonableness, clarity, and feasibility. Furthermore, the 3 proposal will be evaluated for compatibility with mission operations and potential risks, and 4 Government’s assessment of best use of the Property, also considering Project impact(s) on the 5 surrounding communities, local government, and governmental authorities. Additional consideration may 6 be given to Offerors with an existing interconnection queue position. 7

5.1.3 FACTOR 2: RETURN TO THE GOVERNMENT 8

a. Offeror’s proposals will be evaluated against the requirements of Factor 2. The Government will 9 evaluate the Offeror’s proposed rental consideration for the three realty agreement periods: development, 10 construction, and initial operations commitment. The Government will also evaluate the reasonableness of 11 the supporting analysis provided. 12

5.1.4 FACTOR 3: CAPABILITY AND EXPERIENCE 13

a. Offeror’s proposal will be evaluated against the requirements of Factor 3, inclusive of sub-14 factors. Subfactor 3.1: The Government will evaluate the Offeror’s proposed management, safety 15 performance, and qualifications to develop, construct and operate a successful long-term project. The 16 Government will review the submitted recent and relevant projects for similarity to Offeror’s proposed 17 plan and Realty Agreement processes and assess the level of confidence in the Offeror’s plan and 18 demonstrated experience performing similar projects. 19

b. Subfactor 3.2: The Government will evaluate whether the Offeror’s strategy and capability for 20 financing the proposed Project (inclusive of decommissioning bond) clearly supports the project concept 21 and is consistent with accepted commercial practices for similar projects. Additional consideration may 22 be given to Offerors with contracted off-take arrangements already in place for the project. 23

5.1.5 FACTOR 4: PROJECT PLAN AND SCHEDULE 24

a. Offeror’s proposal will be evaluated against the requirements of Factor 4 and will be assigned an 25 evaluation rating. The Government will evaluate the Offeror’s recommended agreements, business 26 arrangements, and stakeholder engagement approach with the Government and other stakeholders to 27 assess the level of confidence in achieving a timely Realty Agreement execution, and project completion. 28

b. The Government will evaluate the proposed integrated project plan and schedule for recognition 29 and consideration of major milestones, duration of critical activities, and overall demonstration and 30 understanding needed to execute and sustain the proposed Project. 31

c. The Government will evaluate the inclusion and sequencing of financing and off-take agreements 32 needed for development, construction, and operation of the Project for reasonableness. 33

5.2 EVALUATION RATINGS 34

a. Offerors are encouraged to be innovative and to make proposals they believe will exceed the 35 requirements of this RFQ. 36

b. The Government will evaluate Offeror’s responses to each Factor for Consideration (and sub- 37 factor) listed in Table 1 and explained in Section 4 above to determine whether said response meets or 38 exceeds the RFQ requirements and to assign ratings to the Offeror’s response to each of these Factors for 39 Consideration as explained in Section 5.1 above. 40

c. The Government will evaluate risk by…