48:3-94. Operation of government energy aggregation program

45. a. (1) A government aggregator that is a municipality or a county may operate a government energy aggregation program that provides for the aggregation of residential electric generation service or gas supply service, non-residential electric generation service or gas supply service on a voluntary basis, and appliance repair services for residential and non- residential customers on a voluntary basis, either separately or bundled, in accordance with the provisions of this section.

(2) Electric generation service or gas supply service for residential customers within the municipality or county and for non-residential customers on a voluntary basis, and for appliance repair services for residential and non-residential customers on a voluntary basis, may be aggregated together with electric generation service, electric related service, gas supply service or gas related service, either separately or bundled, for the government aggregator's own facilities or with other government aggregators, provided that each governing body adopts an ordinance in the case of a municipality, or resolution in the case of a county, after notice and public hearing, indicating its intent to solicit bids for the provision of electric generation service or gas supply service, either separately or bundled, and for appliance repair services on a voluntary basis at a separate price and by separate bid solicitation, as the case may be, which approval shall require passage by a majority vote of the full membership of the governing body.

(3) If an ordinance or resolution adopted pursuant to paragraph (2) of this subsection would include non-residential customers in a government energy aggregation program on a voluntary basis, the adoption of the ordinance or resolution shall be accompanied by a public notice that non-residential customers will be included in the government energy aggregation program if they contact the appropriate governing body within 30 days of the adoption of the ordinance or resolution stating their affirmative choice to be included in the government energy aggregation program.

(4) (a) If an ordinance or resolution adopted pursuant to paragraph (2) of this subsection would include appliance repair services for residential or non-residential customers on a voluntary basis at a separate price and by separate bid solicitation, the adoption of the ordinance or resolution shall be accompanied by a public notice that residential or non-residential customers may receive appliance repair services if they contact the appropriate governing body within 30 days of the adoption of the ordinance or resolution stating their affirmative choice to receive appliance repair services under the government energy aggregation program.

(b) The Board of Public Utilities shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations determining the manner in which electric related services and gas related services, other than appliance repair services, shall be included in government energy aggregation programs.

(5) A government energy aggregation program shall be structured to provide that each residential or non residential customer, as the case may be, shall receive electric generation service or gas supply service from one licensed electric power supplier or one licensed gas supplier, as the case may be.

(6) Any residential or non-residential customer receiving electric generation service or gas supply service from a licensed electric power supplier or a licensed gas supplier prior to the establishment of a government energy aggregation program pursuant to this section shall be exempt from a government energy aggregation program established pursuant to this section. Under no circumstance shall a residential or non-residential customer's affirmative choice to be included in a government energy aggregation program abrogate the existing terms of an electric power or gas supply contract between a non-residential customer and a licensed electric power supplier or licensed gas supplier.

b. (1) The governing body shall commence public bidding pursuant to the provisions of the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.) to receive bids from a licensed electric power supplier or licensed gas supplier, as appropriate, for electric generation service or gas supply service at one or more projected load levels, either separately or bundled, for customers within the municipality or county, and if appropriate, for any appliance repair services at a separate price and by separate bid solicitation, and for electric generation service, electric related service, gas supply service or gas related service, either separately or bundled, for the government aggregator's own facilities. Thirty days prior to the commencement of public bidding the governing body shall transmit the bid notice and all bidding documents to the board and the Division of the Ratepayer Advocate for review. The board and the Division of the Ratepayer Advocate shall have 15 days to review the bid notice and bidding documents and provide comments to the governing body, which may accept or reject the comments.

(2) Upon receipt of the bids, the governing body shall evaluate the proposals. The governing body shall select a licensed electric power supplier or licensed gas supplier, or both, based on the most advantageous proposal, price and other factors considered. The governing body shall only select a licensed electric power supplier or licensed gas supplier to be awarded a contract for service where the rate is the same as or lower than the price of basic generation service pursuant to section 9 of P.L.1999, c.23 (C.48:3-57) plus the pro-rata value of the cost of compliance with the renewable energy portfolio standards imposed pursuant to this act derived from a non-utility generation contract with an electric public utility and transferred by the electric public utility to a supplier of basic generation service or basic gas supply service pursuant to section 10 of P.L.1999, c.23 (C.48:3-58), as determined by the board. The governing body may award a contract for electric generation service where the rate is higher than the price of basic generation service as determined by the board pursuant to section 9 of P.L.1999, c.23 plus the pro-rata value of the cost of compliance with the renewable energy portfolio standards imposed pursuant to this act derived from a non-utility generation contract with an electric public utility and transferred by the electric public utility to a supplier of basic generation service, provided that the award is for electricity the percentage of which that is derived from verifiable Class I or Class II renewable energy as defined pursuant to section 3 of P.L.1999, c.23 (C.48:3-51) is greater than the percentage of Class I and Class II renewable energy required pursuant to subsection d. of section 38 of P.L.1999, c.23 (C.48:3-87), and that the customers are informed, in a manner determined by the board secretary, that such a higher rate is under consideration by the governing body.

c. Upon selection of a licensed electric power supplier or licensed gas supplier, or both, pursuant to subsection b. of this section, the governing body shall enter into a written agreement with the selected licensed supplier. The written agreement shall include:

(1) the contract with the selected licensed electric power supplier or licensed gas supplier, or both, for the government aggregator's own load; and

(2) a contract form which shall comply with and include the requirements of subsection a. of section 43 of P.L.1999, c.23 (C.48:3-92).

The governing body shall transmit a copy of the written agreement to the board and the Division of the Ratepayer Advocate, each of which shall have 15 days to review the written agreement and provide comments to the governing body, which may accept or reject the comments.

d. (Deleted by amendment, P.L.2003, c.24).

e. (1) After entering into the agreement pursuant to section c. of this section, the governing body shall provide written individual notice to customers advising them of their individual right to affirmatively decline participation in the government energy aggregation program, and providing 30 days for customers to respond to the governing body of their decision to affirmatively decline participation in the government energy aggregation program and providing them with the price and other factors allowing the customer to compare the government energy aggregation program to other alternatives; and

(2) upon expiration of the 30-day period required pursuant to paragraph (1) of this subsection, the governing body shall determine the number and identity of customers who did not affirmatively decline to participate in the government energy aggregation program.

(3) The governing body shall then authorize the selected licensed electric power supplier or licensed gas supplier, or both, to enroll each customer within the municipality or county who did not initially affirmatively decline to be part of a government energy aggregation program pursuant to the provisions of paragraph (1) of subsection e. of this section.

(4) The Board of Public Utilities shall adopt, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations regarding service for residential and non-residential customers in municipalities and counties in which government energy aggregation programs have been established providing for the notification to new customers of the availability of the established government energy aggregation program and their option to enroll in the program, and establishing a process by which customers that have been enrolled in a government energy aggregation program and that move to a new location where that same government energy aggregation program is available may consent to continue in the program without reverting to basic generation service or basic gas service. The rules and regulations adopted by the board pursuant to this section shall provide for the recovery by an electric public utility or a gas public utility of all reasonable costs incurred by the electric public utility or gas public utility in complying with the regulations adopted pursuant to this section.

f. The licensed electric power supplier or licensed gas supplier, or both, selected pursuant to the provisions of this section shall be subject to the provisions of section 37 of this act.

g. Whenever the process results in a change of provider of energy or of price to program participants, the governing body shall give residential customers notice, as determined by the board, of their right to decline continued participation.

h. A government aggregator that is a county may implement the provisions of this section only as authorized pursuant to the provisions of subsection f. of section 43 of this act.

i. The provisions of this section shall only apply to government energy aggregation programs for residential customers and to non-residential customers on a voluntary basis.

j. Nothing in this section shall preclude a government energy aggregation program from including non-residential customers as participants on a voluntary basis and in a clear and consistent manner.

k. Nothing in this section shall preclude a residential customer who did not affirmatively decline to participate in a government energy aggregation program from switching electric service to another electric power supplier or to basic generation service pursuant to regulations adopted by the board.

L.1999,c.23,s.45; amended 2003, c.24, s.5.