As used in this part 3, unless the context otherwise requires:
(1) Construction means the construction, alteration, or repair of an energy sector public works project, consistent with and including the same limitations as the definition of construction as established in section 45 (b)(7)(a) of the federal Internal Revenue Code of 1986, as amended, and as described in all related official guidance from the federal internal revenue service and the United States department of labor implementing the applicable sections of the federal Inflation Reduction Act.
(2) Cooperative electric association has the same meaning as set forth in section 40-9.5-102 (1).
(3) Craft labor means employees who are engaged in the construction of an energy sector public works project, including all trades, crafts, and occupations, and who are paid hourly.
(4) Craft labor certification means all documentation and certification of payroll required for an energy sector public works project in accordance with the requirements of section 24-92-115 (7) and part 2 of this article 92.
(5) (a) Energy sector public works project means any project in the state that:
(I) Has the purpose of generating, transmitting, or distributing electricity or natural gas to provide energy to Colorado individual consumers and businesses, is built by or for a public utility, including any project for which energy is purchased through a power purchaser or similar agreement, and is funded in whole or in part by:
(A) The state, through direct funding, loans, loan guarantees, land transfers, tax assistance, including tax credits, deductions, or incentives, or other assistance allocated or appropriated by the state; or
(B) Utility customer funding as approved in any proceeding conducted by the public utilities commission as part of an electric resource acquisition or requests for certificates of convenience and necessity for construction or expansion of a project, including but not limited to pollution control or fuel conversion upgrades and conversion of existing coal-fired plants to natural gas plants; or
(II) Has the purpose of generating or distributing electricity or natural gas for the purposes of providing energy to Colorado individual consumers and businesses from utility customer funding as approved by a cooperative electric association.
(b) Energy sector public works project includes the following project types, so long as they satisfy the criteria in subsection (5)(a)(I) or (5)(a)(II) of this section:
(I) Power generation with a nameplate generation capacity of one megawatt or higher, including generation sourced from wind, solar, geothermal, hydrogen, nuclear, or bioenergy, or any project that generates electricity from the combustion of oil, gas, or other fossil fuels or an energy storage system as defined by section 40-2-202 with an energy rating of one megawatt of power capacity or four megawatt hours of useable energy capacity or higher; and
(II) Other projects with a total project cost of one million dollars or more that include:
(A) Pollution controls;
(B) Utility gas distribution;
(C) Electric transmission projects;
(D) Geothermal systems that are used to provide heat or heated water or that operate as thermal systems or thermal networks as defined in law;
(E) Electric vehicle charging infrastructure installations;
(F) Hydrogen-related infrastructure construction projects;
(G) Any project that transports or stores carbon dioxide captured from power generation; and
(H) Any other construction projects covered by this part 3.
(6) Federal prevailing wage and apprenticeship requirements means the requirements under:
(a) Sections 45 (b)(7) and (8) of title 26 of the United States Code, whether applicable directly or under a provision of the federal Internal Revenue Code of 1986, as amended, that applies such sections of the United States Code; or
(b) Sections 48 (a)(10) and (11) of title 26 of the United States Code, whether applicable directly or under a provision of the federal Internal Revenue Code of 1986, as amended, that applies such sections of the United States Code.
(7) Federal Inflation Reduction Act means the federal Inflation Reduction Act of 2022, United States Code, title 26, including but not limited to sections 30C, 45, 45B, 45L, 45Q, 45U, 45V, 45X, 45Y, 45Z, 48, 48C, 48E, and 179D, and associated implementing rules and guidance promulgated by the United States department of the treasury and the United States internal revenue service, as the statute and implementing rules and guidance may be amended from time to time.
(8) Lead contractor means a general contractor, construction manager, developer, design builder, or other party that is primarily responsible to a public utility or independent power producer for performing construction under a contract for an energy sector public works project.
(9) Project labor agreement means a prehire collective bargaining agreement between a lead contractor and construction labor organizations, including but not limited to the Colorado building and construction trades council and its affiliates or a group of labor unions covering the affected trades necessary to perform work on a project, that establishes the terms and conditions of employment of the construction workforce on an energy sector public works project. A project labor agreement must include provisions that:
(a) Set forth effective, immediate, and mutually binding procedures for resolving jurisdictional labor disputes and grievances arising before the completion of work;
(b) Contain guarantees against strikes, lockouts, or similar actions;
(c) Ensure a reliable source of trained, skilled, and experienced construction craft labor;
(d) Further public policy objectives regarding improved employment opportunities for minorities, women, or other economically disadvantaged populations in the construction industry, including persons from disproportionately impacted communities, to the extent permitted by state and federal law;
(e) Permit the selection of the lowest qualified responsible bidder or lowest qualified responsible offeror without regard to union or non-union status at other construction sites;
(f) Bind all contractors and subcontractors on the energy sector public works project to the project labor agreement through the inclusion of appropriate bid specifications in all relevant contract documents; and
(g) Include other terms as the parties deem appropriate.
(10) Public utility has the same meaning as set forth in section 40-1-103.
Source: L. 2023: Entire part added, (SB 23-292), ch. 247, p. 1351, � 1, effective January 1, 2024.
24-92-304. Energy sector public works projects - craft labor employment - training - wage requirements. (1) (a) Except as otherwise provided in subsections (1)(b) and (1)(c) of this section, a contract between public utilities, cooperative electric associations, or independent power producers and lead contractors for an energy sector public works project must include provisions expressly requiring that all work performed under the contract comply with the requirements of section 24-92-115 (7) and the requirements of part 2 of this article 92 if the project is an electric power generation project with a nameplate generation capacity of one megawatt or higher or if the project is a project specified in section 24-92-303 (5)(b)(II) with a total project cost of one million dollars or more. These requirements constitute material terms of such contracts.
(b) (I) For energy sector public works projects funded pursuant to section 24-92-303 (5)(a)(I)(A), the requirements of this part 3 apply only when the project is a power generation project with a nameplate generation capacity of one megawatt or higher or an energy storage system as defined by section 40-2-202 with an energy rating of one megawatt of power capacity or four megawatt hours of useable energy capacity or higher and the aggregated public assistance from the state is five hundred thousand dollars or more.
(II) For energy sector public works projects under section 24-92-303 (5)(b)(II), the requirements of this part 3 apply only when the total project cost is one million dollars or more, and the aggregated public assistance from the state, funding from a public utility, or funding from a cooperative electric association is five hundred thousand dollars or more.
(c) The requirements of this part 3 do not apply to:
(I) A project that is covered by a project labor agreement;
(II) Work on an energy sector public works project performed by the employees of a utility company;
(III) So long as compliance with any applicable federal Inflation Reduction Act qualification requirements is a material term of the agreement with a public utility, cooperative electric association, independent power producer, or the state, work on an energy sector public works project put out to bid on or after January 1, 2024, that is qualified for and claims the increased federal production tax credit or investment tax credit amount, excluding any domestic content, energy community, or low-income community bonus credit, as a result of:
(A) Satisfying the prevailing wage and apprenticeship requirements under the provisions of the federal Inflation Reduction Act; or
(B) Achieving the start of construction prior to January 29, 2023, pursuant to the principles outlined in the federal internal revenue service guidance and the United States department of labor guidance related to the federal Inflation Reduction Act, as amended or supplemented from time to time;
(IV) A utility-incentivized demand-side management or electrification program pursuant to section 40-3.2-105.5 or 40-3.2-105.6;
(V) Utility or state-funded building energy efficiency programs;
(VI) Service agreements that were entered into by a public utility, independent power producer, or cooperative electric association on or before March 1, 2023; except that, upon renewal or issuance of a new request for proposals, the service agreement must come into compliance with the requirements of this section;
(VII) Projects that involve an electric distribution line with a capacity of 69kv or less; and
(VIII) Projects that involve pipelines with a specified minimum yield strength less than thirty percent.
(2) Unless the contractual requirements specified in subsection (1) of this section are in place, an affected project shall not be eligible to:
(a) Receive funding from the state through general fund appropriations, tax credits, tax deductions, land transfers, or other funding or assistance provided by the general assembly or a government agency; or
(b) Receive any approvals or authorizations from the public utilities commission, including approvals for utility funding or for commencement of the project, including a certificate of public convenience.
(3) The lead contractor engaged to perform construction services for an energy sector public works project must require all subcontractors used on the project to comply with section 24-92-115 (7) and part 2 of this article 92 by ensuring that such requirements are stipulated in all subcontracts. Lead contractors must take all reasonably necessary steps to ensure compliance by monitoring subcontractors.
(4) The public utilities commission shall not find an energy sector public works project to be in compliance with section 40-2-129 unless the construction contract for the project includes provisions expressly requiring that all work performed under the contract comply with the requirements of section 24-92-115 (7) and part 2 of this article 92. Compliance with this subsection (4) does not prevent the commission from considering all best value employment metrics as defined in section 40-2-129, including those metrics that are not directly related to the procurement of craft labor and apprenticeship training on an energy sector public works project.
(5) Consistent with section 24-92-203 (4), bidders on energy sector public works projects shall not artificially divide the overall generation capacity or overall project cost of an energy sector public works project to deliberately avoid the requirements to comply with section 24-92-115 (7) and part 2 of this article 92. The public utilities commission, the state, a public utility, or a cooperative electric association may still require compliance with prevailing wage and apprenticeship utilization requirements if they determine that a bidder has artificially divided a project with the intent of avoiding the requirement to comply with those sections.
Source: L. 2023: Entire part added, (SB 23-292), ch. 247, p. 1354, � 1, effective January 1, 2024.
24-92-305. Energy sector public works projects - record keeping - reporting - craft labor certification - sanctions - compliance with best value employment metrics. (1) The lead contractor for an energy sector public works project shall prepare certified payroll records for craft workers directly employed by the contractor, obtain certified payroll records from all contractors and subcontractors on the projects, and submit the records to the public utility or other owner of the energy sector public works project on a weekly basis. Each lead contractor and subcontractor shall certify, under the penalty of perjury, that the records provide complete and accurate information for all craft workers employed on the project.
(2) The lead contractor for an energy sector public works project shall prepare a craft labor certification on a quarterly basis for work that is being performed under affected projects.
(3) A craft labor certification must include the following:
(a) A sworn attestation, under the penalty of perjury, that the lead contractor is fully compliant with all employment, training, and wage requirements of section 24-92-115 (7) and part 2 of this article 92; and
(b) An identical, equivalent craft labor certification executed in the same manner by all subcontractors participating in the energy sector public works project.
(4) The public utility, cooperative electric association, independent power producer, or other owner of an energy sector public works project is responsible for maintenance of records for all craft labor certifications. The public utility, cooperative electric association, independent power producer, or other owner of an energy sector public works project shall either provide copies quarterly or require by contract that the lead contractor provide copies quarterly, to the department of labor and employment for review and oversight purposes.
(5) No later than January 1, 2029, and at least five years thereafter, the state auditor's office shall conduct an audit of the commission's approval of energy sector public works projects. The purpose of the audit is to establish oversight and accountability for compliance with section 40-2-129, and to determine whether a sample of projects that have been approved by the commission are fully compliant with all employment, training, wage, and apprenticeship requirements of section 24-92-115 (7) and part 2 of this article 92. The audit must consider information and records related to the craft labor certifications that are collected and maintained by the department of labor and employment. The department of labor and employment shall provide any information needed to perform the audit as requested by the state auditor's office.
(a) The audit process must select a sample of projects for review and ensure that the scope of the audit encompasses the broad types of energy sector public works projects.
(b) Upon release of the audit report by the legislative audit committee, the state auditor must make the results of the audit available to the public.
(c) After conducting two audits under this subsection (5), the state auditor may conduct additional audits in the state auditor's discretion.
(6) Violations of the requirements specified in this section, including wage and hour violations, violations of apprenticeship requirements, falsification of records, or willful non-compliance, are subject to the penalties and enforcement rights and remedies described in sections 24-92-115 (3), 24-92-209, 24-92-210, and 24-109-105.
(7) If an energy sector public works project uses federal funding that requires compliance with the federal Davis-Bacon Act, 40 U.S.C. sec. 3141 et seq., or related statutes, the owner of the energy sector public works project shall:
(a) Notify the public utilities commission of their intent to use federal funding to fund, in whole or in part, the energy sector public works project; and
(b) Require the lead contractors and all other contractors and subcontractors working on the energy sector public works project to pay applicable federally stipulated wage and benefit rates and provide certified payroll reports to the public utilities commission in the same manner required by subsection (1) of this section.
Source: L. 2023: Entire part added, (SB 23-292), ch. 247, p. 1357, � 1, effective January 1, 2024.
24-92-306. Energy sector public works projects - use of project labor agreements. (1) A public utility, cooperative electric association, or independent power producer is authorized to incorporate a project labor agreement requirement for an energy sector public works project if the project labor agreement will promote successful project delivery by securing a skilled labor force for the project and if it will promote cost-efficiency, safety, quality, and timely completion of the project.
(2) If all construction work on an energy sector public works project is covered by a project labor agreement, the requirements of sections 24-92-304 and 24-92-305 do not apply to the project.
(3) The public utilities commission shall not deny approval of an energy sector public works project solely because the project owner voluntarily elects to use a project labor agreement for the project. The public utilities commission must state its reasons for denial in writing when it issues the decision.
Source: L. 2023: Entire part added, (SB 23-292), ch. 247, p. 1358, � 1, effective January 1, 2024.
24-92-307. Energy sector public works projects - existing authority of the public utilities commission. Nothing in this section contravenes the statutory authority of the public utilities commission to consider overall project costs, the impact of a project on utility customers, or the impact of project cost on utility rates.
Source: L. 2023: Entire part added, (SB 23-292), ch. 247, p. 1358, � 1, effective January 1, 2024.