The U.S. Department of the Treasury, as part of the process of reviewing applications for the ARRA Section 1603 grant, has been making supplemental requests that applicants submit copies of their power purchase agreements (PPAs). This is creating delays in the payment of the grant beyond the 60-day period beginning with the date the original application was submitted.
The Treasury Guidance issued in August 2009, and supplemented in March 2010, does not require any PPA to be submitted as part of the grant application. Neither do any of the application documents provided on the Treasury website. The only agreement required to be submitted with the application is the interconnection agreement. However, in the Frequently Asked Questions document linked to the Treasury website, Treasury makes the following statement:
Applicants may also be asked to submit documentation beyond what is listed here to fully demonstrate eligibility. Examples include, but are not limited to, power purchase agreements, equipment lease agreements, and certain invoices. If such additional documentation is required applicants will be notified.
In addition, the NREL website, where applicants go to file their online application, says that applicants "should" file copies of their PPAs along with the applications.
It appears that Treasury is taking the position that a supplemental request for a PPA or other document restarts the 60-day time period for payment of the grant. In other words, even though a copy of the PPA is not required by any formal guidance issued by Treasury, Treasury treats the failure to include the requested document as causing the application to be incomplete.
Stoel Rives is in communication with Treasury about this issue. We have told Treasury that it may lack the authority to delay payments beyond the 60-day period beginning with the original application submission date if the application originally submitted complies with Treasury Guidance. We also have raised questions about the fairness of that position and have pointed out that "should" is not the same as "must." We will keep you apprised as more information is available.
