(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.
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