Clean Energy Grants: 5 Tips for Navigating DOE Applications
The Bipartisan Infrastructure Law (“BIL”) and Inflation Reduction Act (“IRA”) allocated $97 billion to the Department of Energy (“DOE”) to fund energy-related projects, which has spurred the DOE to create numerous new grant and loan programs.
We have helped multiple clients apply to a variety of these programs and have identified five tips we suggest DOE grant applicants follow based on this experience.
1. Have an outside reviewer ensure FOA requirements are met and criteria are discussed
To announce a grant opportunity, the DOE issues a funding opportunity announcement (“FOA”), which is typically hundreds of pages detailing a long list of requirements and criteria by which applications will be evaluated. It is critical an application meets all of the FOA’s requirements because the DOE states that an application that “fails to meet the requirements and objectives of the FOA or does not provide sufficient information for [such] evaluation … will be considered non-responsive and eliminated from further review.” It is also important that an application clearly demonstrates that it meets the criteria specified in the FOA because the application is usually scored using a rubric based on how well it meets those criteria, and its score plays a large role in determining whether an applicant receives funding.
In our experience, grant applications are often drafted by multiple teams working in parallel, and this can make it difficult to ensure that DOE’s reviewer will find that the application clearly demonstrates that it is responsive and meets the FOA’s criteria. To mitigate this potential issue, applicants should designate team members whose sole focus is on compliance with the FOA’s requirements, as opposed to the substance of the application. This role is often filled by members of the legal team who are well-suited for this type of detailed review.
2. Highlight and quantify benefits important to the current administration in the CBP
A Community Benefits Plan (“CBP”) is required in all BIL- and IRA-funded grant and loan applications and typically makes up about 20% of an application’s overall technical merit review score. However, CBPs are so new that the DOE still seems to be hiring CBP-specific reviewers, and this can make CBPs difficult to draft because guidance on them is constantly evolving.
While the guidance on CBPs has been in flux, it has been especially important to keep in mind the political reasons that CBPs are included in DOE applications and tailor responses accordingly. CBPs are politically important to the DOE because they promote many of the Biden administration’s priorities and initiatives, such as creating “good-paying, union jobs,” ensuring that benefits of federal investments flow to disadvantaged communities, and promoting racial equity. Additionally, CBPs also ask applicants to quantify and describe impacts related to these priorities, which helps the DOE, Biden administration, and other elected officials to tout the benefits of the BIL and IRA and the programs they fund. As a result, we encourage our clients to quantify and highlight the benefits in their CBPs most closely related to the current administration’s priorities to make their applications more politically favorable and competitive.
3. Tailor your project to meet policy factors and emphasize the factors your project meets
In addition to selecting projects based on scores from a rubric, DOE selection officials are also permitted to consider and select projects partially based on policy factors that are listed in the FOA, which the DOE states may be “essentially beyond [the applicant’s] control.” However, in our experience reviewing applications, we have come across many policy factors that can be controlled if these factors are reviewed and discussed early in the project planning process. For example, some policy factors have allowed selection officials to prioritize projects that include a government entity partner, can demonstrate support from local communities, and/or have diverse partners, such as minority-owned businesses. Even in applications with policy factors that are not as easily controlled, we have found that applicants can often still emphasize the policy factors they meet to increase the likelihood that their application is selected.
4. Use SMART milestones even when not required
The DOE sometimes requires that applications contain specific, measurable, achievable, relevant, and time-bound (“SMART”) milestones when discussing plans to develop the project. We often go a step further and encourage our clients to use SMART milestones in all plans and timelines, even when they are not required. We suggest this because SMART milestones provide the clear, complete, and appropriate project schedules and management plans that application reviewers are often asked to look for during their review. Furthermore, SMART milestones can also help applicants quantify their project’s benefits, which, as discussed above, can make the application more politically favorable and more likely to be selected.
5. Enlist outside counsel to mitigate the risk of FCA liability
The False Claims Act (“FCA”) is a law that subjects entities to civil and sometimes criminal liability if they provide false information, make material misrepresentations, or omit material facts in communications with the federal government under certain circumstances. FCA liability is not an unlikely possibility for grant applicants or awardees: the Department of Justice (“DOJ”) regularly pursues FCA cases and recovered over $2.2 billion in Fiscal Year 2022 from settlements and judgments under the FCA. Recently, the DOJ collected a $1.9 million settlement from a grant awardee that failed to disclose current and pending research support from foreign entities in its grant proposals. As a result, it is important for grant applicants and awardees to work with legal counsel that understands the FCA and other federal grant requirements to mitigate the risk of FCA liability that could arise from their grant application, subsequent communications with the DOE regarding the grant, and/or failing to comply with other federal laws related to grants.
Read the article published by Renewable Energy World here.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.