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Complete Activities Necessary for Effective and Accountable Management' 
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Report to Congressional Committees: 

United States Government Accountability Office: 

GAO: 

July 2008: 

Department Of Energy: 

New Loan Guarantee Program Should Complete Activities Necessary for 
Effective and Accountable Program Management: 

GAO-08-750: 

GAO Highlights: 

Highlights of GAO-08-750, a report to congressional committees. 

Why GAO Did This Study: 

Title XVII of the Energy Policy Act of 2005 established DOE’s loan 
guarantee program (LGP) for innovative energy projects that should 
decrease air pollutants or greenhouse gases and that have a reasonable 
prospect of repayment. For fiscal years 2008 and 2009, Congress 
authorized the use of borrower fees to pay the costs of loan guarantees 
through Title XVII’s “borrower pays” option, under which DOE will limit 
loan guarantees to $38.5 billion. Congress mandated that GAO review 
DOE’s progress in implementing the LGP. GAO assessed DOE’s progress in 
(1) issuing final regulations and (2) taking actions to help ensure 
that the program is managed effectively and to maintain accountability. 
GAO also assessed how inherent risks due to the nature of the LGP may 
affect DOE’s ability to achieve intended program outcomes. GAO analyzed 
DOE’s regulations, guidance, and program documents and files; reviewed 
Title XVII; and interviewed DOE officials. 

What GAO Found: 

In October 2007, DOE issued regulations that govern the LGP and include 
requirements for application submissions, project evaluation factors, 
and lender eligibility and servicing requirements. The regulations also 
generally address requirements set forth in applicable guidance. Some 
key aspects of the initial LGP guidelines were revised in the 
regulations to help make the program more attractive to lenders and 
potentially reduce financing costs for projects. For example, the 
maximum loan guarantee percentage increased from 80 to 100 percent of 
the loan. In addition, the regulations define equity as “cash 
contributed by the borrowers,” but DOE officials told us they also plan 
to consider certain non-cash contributions, such as land, as equity. As 
a result, applicants may not fully understand the program’s equity 
requirements. DOE is not well positioned to manage the LGP effectively 
and maintain accountability because it has not completed a number of 
key management and internal control activities. As a result, DOE may 
not be able to process applications efficiently and effectively, 
although it has begun to do so. DOE has not sufficiently determined the 
resources it will need or completed detailed policies, criteria, and 
procedures for evaluating applications, identifying eligible lenders, 
monitoring loans and lenders, estimating program costs, or accounting 
for the program—key steps that GAO recommended DOE take over a year 
ago. DOE also has not established key measures to use in evaluating 
program progress. Risks inherent to the LGP will make it difficult for 
DOE to estimate subsidy costs, which could lead to financial losses and 
may introduce biases in the projects that receive guarantees. The 
nature and characteristics of the LGP and uncertain future economic 
conditions increase the difficulty in estimating the LGP’s subsidy 
costs. Because the LGP targets innovative technologies and the projects 
will have unique characteristics—varying in size, technology, and 
experience of the project sponsor—evaluating the risks of individual 
projects will be complicated and could result in misestimates. The 
likelihood that DOE will misestimate costs, along with the practice of 
charging fees to cover the estimated costs, may lead to biases in the 
projects that receive guarantees. Borrowers who believe DOE has 
underestimated costs and has consequently set fees that are less than 
the risks of the projects are the most likely to accept guarantees. To 
the extent that DOE underestimates the costs and does not collect 
sufficient fees from borrowers to cover the full costs, taxpayers will 
ultimately bear the costs of shortfalls. Even if DOE’s estimates of 
subsidy costs are reasonably accurate, some borrowers may not pursue a 
guarantee because they perceive the fee to be too high relative to the 
benefits of the guarantee, affecting the project’s financial viability. 
To the extent that this financial viability is not distributed evenly 
across the technologies targeted by Title XVII, projects in DOE’s 
portfolio may not represent the range of technologies targeted by the 
program. 

What GAO Recommends: 

GAO suggests Congress consider limiting loan guarantee commitments DOE 
can make until it has put adequate controls in place. In this regard, 
GAO is recommending actions by DOE to help ensure that the LGP will be 
well managed. DOE disagreed with two recommendations, indicated it has 
largely accomplished four, and disagreed with the matter for 
congressional consideration. GAO reaffirms its recommendations and 
matter for congressional consideration. 

To view the full product, including the scope and methodology, click on 
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-750]. For more 
information, contact Frank Rusco at (202) 512-3841 or ruscof@gao.gov. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

DOE Issued Regulations That Contained Required Elements, but One Key 
Aspect Is Not Clear: 

DOE Has Not Fully Implemented Activities Necessary for Effective and 
Accountable Program Management: 

Inherent Risks Will Make Estimating Subsidy Costs Difficult and May 
Introduce Self-Selection Biases in the Projects That Ultimately Receive 
Loan Guarantees: 

Conclusions: 

Matter for Congressional Consideration: 

Recommendations for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Scope and Methodology: 

Appendix II: Title XVII Categories, DOE's First Solicitation, and 
Projects DOE Invited to Submit Full Applications for Loan Guarantees: 

Appendix III: Comments from the Department of Energy: 

Appendix IV: GAO Contact and Staff Acknowledgments: 

Tables: 

Table 1: Project Categories for Title XVII and DOE Solicitation: 

Table 2: Projects Invited to Submit Full Applications: 

Figure: 

Figure 1: DOE's Key Actions to Set Up Its LGP: 

Abbreviations: 

CBO: Congressional Budget Office: 

CRB: Credit Review Board: 

DOE: Department of Energy: 

FFB: Federal Financing Bank: 

LGP: Loan Guarantee Program: 

FCRA: Federal Credit Reform Act of 1990: 

EPAct 2005: Energy Policy Act of 2005: 

OMB: Office of Management and Budget: 

OPIC: Overseas Private Investment Corporation: 

United States Government Accountability Office: 

Washington, DC 20548: 

July 7, 2008: 

The Honorable Byron Dorgan: 
Chairman: 
The Honorable Pete Domenici: 
Ranking Member: 
Subcommittee on Energy and Water Development: 
Committee on Appropriations: 
United States Senate: 

The Honorable Peter J. Visclosky: 
Chairman The Honorable David L. Hobson: 
Ranking Member: 
Subcommittee on Energy and Water Development: 
Committee on Appropriations: 
House of Representatives: 

Title XVII of the Energy Policy Act of 2005 (EPAct 2005)--Incentives 
for Innovative Technologies--authorized the Secretary of Energy to 
implement a new loan guarantee program (LGP) for energy projects that 
satisfy three criteria: avoid, reduce, or sequester air pollutants or 
greenhouse gases; employ new or significantly improved technologies 
compared with commercial technologies in service at the time the 
guarantee is issued; and provide a reasonable prospect of 
repayment.[Footnote 1] To date, the Department of Energy (DOE) has not 
approved any loan guarantees under the LGP. 

Federal loan guarantee programs help borrowers obtain access to credit 
with more favorable terms than they may otherwise obtain in private 
lending markets because the federal government guarantees to pay 
lenders if the borrowers default, which makes extending credit more 
attractive to lenders. However, loan guarantee programs can expose the 
government to substantial financial risks. In the past, problems with 
loan guarantee programs have occurred, in part, because agencies did 
not exercise due diligence during the loan origination and monitoring 
processes. In addition, agencies have had difficulty estimating program 
costs because of faulty assumptions that caused cost estimates to be 
too low, limited historical data, and deficient policies and procedures 
for assessing risk and estimating costs. 

Title XVII has a requirement related to the subsidy cost of the LGP: 
DOE must either receive an appropriation for the subsidy cost or it 
must collect fees from borrowers to cover the subsidy cost (referred to 
as the "borrower pays" option). In DOE's appropriations acts for fiscal 
years 2007 and 2008, Congress specifically instructed DOE to proceed 
under the borrower pays option. The subsidy cost, as defined by the 
Federal Credit Reform Act (FCRA) of 1990, is the government's estimated 
net long-term cost, in present value terms,[Footnote 2] of direct or 
guaranteed loans over the entire period the loans are outstanding (not 
including administrative costs). In calculating the subsidy cost for a 
guaranteed loan program, agencies estimate (1) payments from the 
government to cover interest subsidies, defaults, delinquencies, or 
other payments, and (2) payments to the government, including fees, 
penalties, and recoveries on defaults. Under FCRA, DOE would estimate 
the expected subsidy costs before issuing loan guarantees and is 
generally required to annually update, or reestimate, this cost to 
reflect actual loan performance and changes in expected future loan 
performance. To the extent that DOE underestimates subsidy costs and 
does not collect enough fees from borrowers, taxpayers will ultimately 
make up the difference. 

Through the appropriations process, Congress authorizes the amount of 
loans that may be guaranteed, thereby setting limits on the 
government's exposure to financial losses. For DOE's LGP, Congress 
appropriated funds out of any borrower fees to be received for DOE to 
make up to $4 billion of loan guarantees for fiscal year 2007 and 
placed no cap on guarantees for fiscal years 2008 and 2009.[Footnote 3] 
Because of the financial risks associated with loan guarantees under 
the LGP, we assessed DOE's efforts to implement the program in early 
2007. We reported that rather than taking and completing key steps to 
better ensure that the LGP would be well managed and accomplish its 
objectives, DOE focused on soliciting preapplications for proposed 
projects.[Footnote 4] We recommended that before DOE select eligible 
projects for loan guarantees, it first issue program regulations, 
develop policies and procedures for operating the program, and define 
goals and metrics to measure program effectiveness. Subsequently, in 
Public Law 110-5, Congress directed DOE not to award any loan 
guarantees until it issued final regulations. These regulations were to 
include programmatic, technical, and financial factors for the 
Secretary of Energy to use in selecting projects, as well as policies 
and procedures to monitor loans and lenders.[Footnote 5] 

Congress also mandated that we annually review DOE's progress in 
implementing the LGP and directed us to report to the House and Senate 
Committees on Appropriations to help inform their oversight. In 
response, we assessed DOE's progress in (1) issuing final regulations 
to govern the program and (2) taking actions to help ensure that the 
program is managed effectively and to maintain accountability. We also 
examined whether inherent risks due to the nature and characteristics 
of the LGP may affect DOE's ability to make the program pay for itself 
and support a broad spectrum of innovative energy technologies. 

For this assessment, we reviewed and analyzed Title XVII of EPAct 2005, 
Office of Management and Budget (OMB) guidance on federal credit 
programs, GAO's guidance on Government Performance and Results Act and 
standards for internal control,[Footnote 6] DOE's program guidance and 
regulations, and other information. We interviewed relevant DOE 
officials. We also reviewed preapplication files to determine if DOE 
conducted its review process consistently and documented its decisions 
sufficiently. We did not evaluate the technical or financial soundness 
of the projects DOE invited to apply for loan guarantees. To examine 
whether the inherent risks due to the nature and characteristics of the 
LGP may affect DOE's ability to make the program pay for itself and 
support a broad spectrum of innovative energy technologies, we reviewed 
reports by the Congressional Budget Office (CBO) and reviewed past GAO 
reports of other loan programs that had some similar characteristics 
with the LGP. We did not assess the benefits of this program because 
doing so at this stage would be premature. It remains to be seen what 
projects will receive loan guarantees and when this may occur. We 
recognize that the program could have substantial benefits; our 
assessment of how the nature and characteristics of the LGP may affect 
its effectiveness is not intended to address its overall merits. 
Rather, our intent is to highlight how these aspects of the program 
could have a bearing on program performance and what the LGP can 
achieve. We conducted this performance audit from September 2007 
through June 2008, with limited updates after we sent the draft report 
to DOE for comment on May 13, in accordance with generally accepted 
government auditing standards. Those standards require that we plan and 
perform the audit to obtain sufficient, appropriate evidence to provide 
a reasonable basis for our findings and conclusions based on our audit 
objectives. We believe that the evidence obtained provides a reasonable 
basis for our findings and conclusions based on our audit objectives. A 
further discussion of our scope and methodology is presented in 
appendix I. 

Results in Brief: 

In October of 2007, DOE issued final regulations that govern the LGP, 
including requirements for preapplication and application submissions; 
programmatic, technical and financial evaluation factors for 
applications; and lender eligibility and servicing requirements. The 
regulations generally include requirements set forth in applicable 
guidance. Some key aspects of the initial program guidelines were 
changed in the final regulations to help make the program more 
attractive to lenders and potentially reduce financing costs for 
projects. For example, the maximum guarantee percentage was increased 
from 80 percent to 100 percent of the loan; the loan itself remained 
limited to no more than 80 percent of the project costs. This change 
increased the risk that the government is willing to assume on a 
project by project basis. In addition, we identified one key aspect of 
the regulations related to the project's equity commitment that is not 
clear. Specifically, the regulations define equity as "cash contributed 
by the borrowers," but DOE plans to consider certain non-cash 
contributions, such as land, as equity. As a result, potential 
applicants may not have a full understanding of the program's equity 
requirements. 

DOE is not well positioned to manage the LGP effectively and maintain 
accountability because it has not completed a number of management and 
internal control activities key to carrying out the program. As a 
result, DOE may not be able to process applications efficiently and 
effectively. In particular, while DOE officials told us they have begun 
to review the first submitted application and will begin reviewing 
other applications as soon as they are submitted, DOE has not 
sufficiently determined the type and timing of contractor resources it 
will need to do so. Furthermore, although DOE has developed guidance 
for applicants to follow in submitting applications, it has not 
developed detailed policies and procedures, including roles and 
responsibilities and criteria that demonstrate how DOE plans to 
evaluate the applications. In addition, it has not completed policies 
and procedures to identify eligible lenders, monitor loans and lenders, 
estimate the costs of the program, or account for the program--key 
steps that we recommended over a year ago and most of which DOE 
reported to Congress that it would have completed by now. Finally, DOE 
has not established key measures to use in evaluating program progress. 

Risks inherent to the LGP will make it difficult for DOE to estimate 
subsidy costs with a reasonable degree of accuracy, which could lead to 
financial losses and may introduce biases in the projects that 
ultimately receive loan guarantees. The nature and characteristics of 
the program and uncertain future economic conditions greatly increase 
the difficulty of estimating the program's subsidy costs. For example, 
because the LGP targets innovative energy technologies and because 
projects will likely have unique characteristics--varying in size, 
technology, and experience of the project sponsor--evaluating the risks 
of individual projects applying for loan guarantees will be 
complicated. The Congressional Budget Office (CBO) has estimated that 
DOE will charge companies fees at least one percent lower than costs, 
on average. The likelihood that DOE will misestimate costs, along with 
the "borrower pays" feature requiring DOE to collect fees to cover 
estimated costs, may introduce biases in the projects that ultimately 
receive loan guarantees and result in financial losses to the 
government. Because potential borrowers will generally know more about 
their projects' risks and creditworthiness than DOE, potential 
borrowers will be more likely to accept loan guarantees when DOE has 
underestimated their projects' risks--and thus set the fee too low-- 
than in cases for which DOE has overestimated the risks and fees. This 
would cause DOE's portfolio to have more projects for which the fee was 
underestimated rather than overestimated. To the extent that DOE 
underestimates the costs of the program and does not collect sufficient 
fees from borrowers to cover the true costs, taxpayers will ultimately 
bear the costs of shortfalls. Such shortfalls are automatically funded 
by the federal government under the terms of the FCRA[Footnote 7] and 
are not subject to congressional scrutiny during the annual 
appropriation process. In addition, even in instances where DOE's 
estimates of subsidy costs are reasonably accurate, the "borrower pays" 
option may cause some potential borrowers to not pursue loan guarantees 
because the fee is too high relative to the benefits to the borrower of 
the loan guarantee. To the extent that certain types of projects or 
technologies are more likely than others to have fees that are too high 
to remain economically viable, the projects that ultimately receive 
loan guarantees may not represent the full range of technologies that 
are targeted by Title XVII. 

To the extent that Congress intends for the program to fully pay for 
itself, and to help minimize the government's exposure to financial 
losses, we are suggesting that Congress consider limiting the amount of 
loan guarantee commitments DOE can make under Title XVII until DOE has 
put into place adequate management and internal controls by completing 
sufficient actions on key policies, procedures, and activities. We are 
also making recommendations to assist DOE in this regard. 

In commenting on a draft of this report, DOE stated that two of our six 
recommendations were inapplicable to the LGP, indicated it has largely 
accomplished the remaining four recommendations, and disagreed with our 
matter for congressional consideration. DOE further stated that our 
report contains flawed logic, significant inaccuracies, and omissions; 
however, we believe our evidence is sound and convincing and that DOE 
did not provide evidence to support these assertions. 

In particular, DOE stated that we placed disproportionate emphasis on 
activities that should be completed for a fully implemented loan 
guarantee program rather than one that is currently being implemented, 
and that we overlooked DOE's accomplishments to date. We disagree. We 
believe that our report accurately assesses the LGP in its early 
development stage and focused our report's analysis and recommendations 
on activities that should be completed before DOE begins to 
substantively review any applications. DOE states that it will have 
completed many of these activities before it issues loan guarantees, 
but we continue to believe these activities should be completed before 
DOE reviews applications and negotiates with applicants so that it can 
operate the program prudently--and minimize inefficiencies and 
inconsistencies it may face in not having these activities completed or 
in place before proceeding with its operations. In several cases, DOE 
cites as complete, documents and activities that were, and still are at 
the time of this report, in draft form. For example, in several 
instances DOE states that it has "implemented" its credit subsidy 
model. However, as of June 24, 2008, DOE stated that OMB had not 
approved its model. Further, DOE illustrated in an updated timetable it 
provided in appendix B of its comment letter that a majority of these 
activities are not yet complete and that several will not be complete 
until the end of the calendar year 2008. DOE's entire letter, including 
its appendixes, is reproduced as appendix III of this report. 

Background: 

Title XVII of EPAct 2005--Incentives for Innovative Technologies-- 
authorized DOE to guarantee loans for projects that satisfy all three 
of the following criteria: (1) decrease air pollutants or man-made 
greenhouse gases by reducing their production or by sequestering them 
(storing them to prevent their release into the atmosphere); (2) employ 
new or significantly improved technologies compared with current 
commercial technologies; and (3) have a "reasonable prospect" of 
repayment. Title XVII identifies 10 categories of projects that are 
eligible for a loan guarantee, such as renewable energy systems, 
advanced fossil energy technologies, and efficient end-use energy 
technologies. Appendix II provides a list of these categories. 

The LGP office is under DOE's Office of the Chief Financial Officer. 
LGP's actions are subject to review and approval by a Credit Review 
Board.[Footnote 8] The Board met for the first time in April 2007; it 
approves major policy decisions of the LGP, reviews LGP's 
recommendations to the Secretary of Energy regarding the issuance of 
loan guarantees for specific projects, and advises the Secretary on 
loan guarantee matters.[Footnote 9] DOE first received appropriated 
funds for the LGP's administrative costs in early 2007 and began 
processing preapplications--in response to the August 2006 
solicitation--and at the same time began to obtain staff and take other 
steps to initiate the program. During 2007, it reviewed preapplications 
for 143 projects and in October 2007 invited 16 of the preapplicants to 
submit full applications for loan guarantees. Appendix II includes 
information on the 16 projects invited to submit full applications. In 
general, according to DOE, the processing of full applications will 
require DOE to have numerous interactions with the applicants and 
private lenders. It will also require financial, technical, 
environmental, and legal advisors to assist with underwriting, 
approving, and issuing a loan guarantee. DOE estimated that the time 
between receiving an application and completing negotiations for a loan 
guarantee contract would range from 9 to 25 months, with additional 
time at the beginning to prepare and issue the solicitation and at the 
end to close the loan. 

On April 11, 2008, DOE issued a fiscal year 2008 implementation plan 
for $38.5 billion in solicitations, to respond to a requirement that 
DOE provide Congress information about future solicitations 45 days 
prior to issuing them.[Footnote 10] On June 30, 2008, DOE 
simultaneously issued three solicitations that total $30.5 billion--on 
(1) efficiency, renewable energy, and electric transmission ($10 
billion), (2) nuclear power facilities ($18.5 billion), and (3) nuclear 
facilities for the "front end" of the nuclear fuel cycle ($2 billion). 
DOE plans to subsequently issue a fourth solicitation in late summer 
2008 for advanced fossil energy projects ($8 billion).[Footnote 11] DOE 
is also required to annually provide Congress a report on all 
activities under Title XVII and issued the first report on June 15, 
2007.[Footnote 12] Figure 1 shows a timeline of these and other key 
program events since 2005 that illustrate the status of the LGP through 
June 2008. 

Figure 1: DOE's Key Actions to Set Up Its LGP: 

This figure is a timeline of DOE's key actions to set up its LGP. 

August 2005: Energy Policy Act of 2005 creates DOE’s LGP. 

August 2006: DOE invites interested parties to submit preapplications 
and issues guidelines for solicitation. 

December 2006: DOE closes solicitation for preapplications; 143 project 
proposals received. 

February 2007: Credit Review Board charter approved. DOE receives its 
first appropriation apportionment to fund LGP administrative 
operations. 

March 2007: Congress appropriates funds from any borrower fees DOE 
receives for DOE to make up to $4 billion of loan guarantees. 

April 2007: Technical review of preapplications begins. 

May 2007: DOE issues proposed regulations. 

June 2007: Financial review of preapplications begins. DOE holds public 
meeting to obtain comments on its proposed regulations. 

August 2007: LGP director announced.Program offices and LGP conduct 
joint technical and financial review meetings to develop initial 
recommendations for preapplications projects.LGP conducts secondary 
review session to develop final list of preapplications projects to 
recommend to the Credit Review Board. 

October 2007: Congress appropriates an unlimited amount of funds from 
any borrower fees DOE receives for loan guarantees. The legislation’s 
explanatory language states that loan guarantees should be limited to 
$38.5 billion in fiscal years 2008 and 2009. 

December 2007: DOE announces final regulations and invites 16 
preapplication projects to apply for guarantees. 

April 2008: DOE submits its fiscal year 2008 implementation plan for 
solicitations to Congress.DOE receives its first loan guarantee 
application. 

June 2008: DOE issues three solicitations totaling up to $30.5 billion 
that invite interested parties to submit applications for loan 
guarantees.

[See PDF for image] 

Source: GAO presentation of DOE information. 

[End of figure] 

DOE Issued Regulations That Contained Required Elements, but One Key 
Aspect Is Not Clear: 

On October 23, 2007, DOE's final regulations for the LGP were published 
in the Federal Register. DOE had previously issued program guidelines 
in August 2006. The final regulations contain requirements for 
preapplication and application submissions; programmatic, technical and 
financial evaluation factors for applications; and lender eligibility 
and servicing requirements. The regulations incorporate and further 
clarify requirements of Title XVII related to eligibility, fees, 
default conditions, and audit documentation. The regulations also 
generally incorporate requirements set forth in OMB Circular A-129 
Policies for Federal Credit Programs and Non-Tax Receivables, which 
prescribes policies and procedures for federal credit programs, such as 
applicant screening, lender eligibility, and corrective actions. 
Because loan guarantee programs pose significant financial risks, it is 
important to include appropriate mechanisms to help protect the federal 
government and American taxpayers from excessive or unnecessary losses. 

DOE changed some key aspects of the initial program guidelines in its 
final regulations to help make the program more attractive to lenders 
and potentially reduce financing costs for projects. These changes 
included increasing the maximum guarantee percentage, allowing the 
lender to separate or "strip" the nonguaranteed portion of the debt, 
and revising its interpretation of a Title XVII requirement that DOE 
have superior right to project assets pledged as collateral. Other 
important changes relate to increased specificity in key definitions 
and a requirement for independent engineering reports. Specifically, we 
found the following: 

* Guarantee percentage. The final regulations allow for loan guarantees 
of up to 100 percent of the loan amount, which is limited to no more 
than 80 percent of the project costs, provided that, for a 100 percent 
guarantee, the loan must be disbursed by the Federal Financing Bank 
(FFB).[Footnote 13] The use of the FFB is required, in part, because a 
private lender may exercise less caution when underwriting and 
monitoring a loan with a 100 percent guarantee. The guidelines stated 
that DOE preferred not to guarantee more than 80 percent of the loan 
amount, which was limited to no more than 80 percent of the project 
costs. Because the regulations increased the maximum guarantee 
percentage, this change increases the risk that the government is 
willing to assume on a project by project basis. 

* Stripping the nonguaranteed portion. When DOE guarantees 90 percent 
or less of a loan, the final regulations allow the nonguaranteed 
portion of a loan to be separated or "stripped" from the guaranteed 
portion. This change allows lenders greater flexibility in selling 
portions of a loan on the secondary market and could reduce overall 
funding costs for projects. In contrast, the guidelines and the 
proposed regulations did not allow stripping. 

* Superiority of rights. Title XVII requires DOE to have superior 
rights to project assets pledged as collateral. In the proposed 
regulations, DOE interpreted this provision to require DOE to possess 
first lien priority to assets pledged as collateral. Therefore, holders 
of nonguaranteed portions of loans would be subordinate to DOE in the 
event of a default. In the final regulations, DOE changed its 
interpretation to allow proceeds received from the sale of project 
assets to be shared with the holders of nonguaranteed portions of loans 
in the event of a default. As noted in public comments on the proposed 
regulations, this practice is an established norm in project lending. 
DOE stated that it retains superiority of rights, as required by Title 
XVII, because DOE has sole authority to determine whether, and under 
what terms, the project assets will be sold at all. 

* Key definitions. In the context of "innovative technologies," the 
final regulations added a definition that clarified the definition of 
what constitutes a "new or significantly improved" technology, 
considerably expanded the definition of "commercial" technology already 
in use, and clearly linked the definitions to each other. According to 
the regulations, a new or significantly improved technology is one that 
has only recently been developed or discovered and involves a 
meaningful and important improvement in productivity or value in 
comparison with the commercial technology in use. DOE's regulations 
define a commercial technology as being in general use if it is 
employed by three or more commercial projects in the United States for 
at least 5 years. 

* Independent engineering report. The final regulations require the 
applicant to provide an independent engineering report on the project, 
which was not required under the guidelines. According to the 
regulations, the engineering report should assess the project, 
including its site information, status of permits, engineering and 
design, contractual requirements, environmental compliance, testing and 
commissioning, and operations and maintenance. 

Although the final regulations generally address requirements from 
applicable guidance, we identified one key aspect related to equity 
requirements that is not clear. The final regulations state that DOE 
will evaluate whether an applicant is contributing significant equity 
to the project. The regulations define equity as "cash contributed by 
the borrowers and other principals." Based on this definition, it 
appears that non-cash contributions, such as land, would not be 
considered equity. However, the LGP director told us that land and 
certain other non-cash contributions could be considered equity. As a 
result, the regulations do not fully reflect how DOE is interpreting 
equity and potential applicants may not have a full understanding of 
the program's equity requirements. 

DOE Has Not Fully Implemented Activities Necessary for Effective and 
Accountable Program Management: 

DOE may not be well positioned to manage the LGP effectively and 
maintain accountability because it has not completed a number of 
management and internal control activities key to carrying out the 
program. As a result, DOE may not be able to process applications 
efficiently and effectively, even though DOE has begun to review its 
first application, and officials told us they will begin reviewing 
other applications as soon as they are submitted. The key activities 
that DOE has not sufficiently completed include (1) clearly defining 
its key milestones and its specific resource needs, (2) establishing 
policies and procedures for operating the program, and (3) agreeing 
upon key measures to evaluate program progress. The nature and 
characteristics of the LGP expose the government to substantial 
inherent risk; implementing these management and internal control tools 
is a means of mitigating some risks. 

DOE Has Begun Its Application Review Process before Clearly Defining 
Program Milestones and Specific Resource Needs: 

According to our work on leading performance management practices, 
agencies should have plans for managing their programs that identify 
goals, strategies, time frames, resources, and stakeholder involvement 
in decision making. In January 2008 DOE completed a "concept of 
operations" document that contains, among other things: information on 
the LGP's organizational structure; mission, goals, and objectives; and 
timelines, milestones, and major program activities that must be 
accomplished and their sequence. However, LGP officials told us they do 
not consider the concept of operations a strategic or performance 
planning document. In addition, it is unclear whether LGP plans to set 
other timelines and milestones that would be available to stakeholders, 
such as applicants and Congress. Without associating key activities 
with the time frames it aims to meet, it is unclear how DOE can 
adequately gauge its progress or establish and maintain accountability 
to itself and stakeholders. 

As of March 2008, 14 of the 16 companies invited to submit full 
applications reported that they plan to submit their applications to 
DOE by the end of September 2008, and the other 2 plan to submit by the 
end of January 2009. DOE received one application in April 2008, which 
it has begun to review, and DOE officials told us they will begin 
reviewing other applications as soon as they are submitted. This influx 
of applications could cause a surge in workload, but it is not clear 
that DOE has obtained the resources it needs to carry out its 
application review activities. Although it is critical for agencies to 
determine the timing and type of resources needed, DOE has not 
determined the number and type of contractor resources it will need to 
review the applications, which could lead to delays. For example, DOE 
expects to need legal, engineering, environmental, and financial 
contracting expertise but has not completed plans describing the types 
of expertise needed, estimated when the expertise will be required, or 
determined to what extent each type of expertise will be needed. 
According to the LGP director, much of this expertise will have to be 
acquired through new contracts that DOE must negotiate and that 
generally take some months to put into place. To the extent that these 
resources are not available when needed, DOE could experience delays in 
reviewing the applications. In early April 2008, the LGP director said 
that his office is working with other DOE offices to develop these 
contracts and considers this activity high priority; while the 
completion date for an acquisition and contract vehicles strategy was 
initially set for the end of April, the timetable DOE includes in its 
agency comments letter indicates an August 2008 completion date. In 
addition, as of April the LGP office was 7 staff short of its 
authorized level of 16 for fiscal year 2008; the director told us it 
has faced delays in hiring permanent staff, although he indicated that 
the office has enough permanent staff to review the first 16 
applications.[Footnote 14] He also said that the permanent and 
contractor staff LGP has hired have many years of project finance or 
loan guarantee experience at other institutions. 

DOE Has Not Completed Key Policies and Procedures: 

Management has a fundamental responsibility to develop and maintain 
effective internal controls to help ensure that programs operate and 
resources are used efficiently and effectively to achieve desired 
objectives and safeguard the integrity of their programs. As of May 
2008, DOE had not completed policies and procedures to select loans, 
identify eligible lenders and monitor loans and lenders, estimate the 
costs of the program, or account for the program, despite reporting to 
Congress in June 2007 that it would have completed most of these 
activities by the end of fiscal year 2007. 

Selecting Loans: 

OMB Circular A-129 calls for agencies to develop policies and 
procedures to select loans, including appropriate applicant screening 
standards to determine eligibility and creditworthiness. In this 
regard, from August 2006 through October 2007, DOE conducted a 
preapplication process to help it develop final regulations; develop 
and test policies, criteria, and procedures for reviewing 
preapplications; and determine which projects it would invite to apply 
for loan guarantees. Conducting the preapplication process also enabled 
DOE to respond to congressional interest in launching the program, 
according to DOE officials. 

We found that, during its preapplication review process, DOE did not 
always sufficiently document why it ultimately selected projects that 
reviewers did not score highly or recommend initially. DOE documented 
the results of the selection process, including its technical and 
financial reviews for individual projects, its joint technical- 
financial reviews for categories of projects, and its decisions made 
during its secondary review process. However, we found that DOE's 
documentation for deciding which projects to recommend to the Credit 
Review Board did not always provide sufficient justification. While our 
discussions with DOE officials helped clarify the documentation for 6 
of the 16 invited projects, they did not for 2 of those projects. 
According to DOE officials, they gave greater weight to the technical 
merit than the financial merit of the projects during the 
preapplication selection process. In addition, a consultant DOE hired 
to review the preapplication process found that although the files were 
in "good working order," DOE did not consistently conduct and document 
its technical evaluations and did not document financial evaluations in 
depth. The consultant recommended that DOE take steps to establish 
standards for these evaluations and increase the level of transparency 
in the preapplication evaluation process. 

We also found that the financial and technical criteria DOE used to 
review the preapplications were not sufficiently defined in some cases. 
For example, a requirement that is central in considering projects' 
overall eligibility--whether it is "innovative," also known as "new and 
significantly improved"--was difficult to determine, according to 
several program managers and reviewers. After the initial review 
process was completed, DOE further defined what it considers "new and 
significantly improved" in its final regulations, but has not 
correspondingly updated the review criteria. In addition, when DOE 
conducted its financial reviews, it evaluated projects by assigning 
scores between zero and four--with zero being the weakest score and 
four being the strongest score. However, DOE did not define what the 
possible scores signified. Moreover, 60 percent of a preapplicant's 
financial score was based on creditworthiness; yet, DOE did not require 
preapplicants to submit pertinent financial and credit information such 
as audited financial statements or credit histories. 

DOE has not fully developed detailed internal policies and procedures, 
including criteria, for selecting applications. To review the first 16 
projects, DOE officials told us they will use criteria developed for 
the preapplication process. For projects that apply in response to 
future solicitations, DOE plans to amend current preapplication 
criteria and develop additional evaluation factors that will be 
specific to certain technology areas or sectors. According to DOE 
officials, as of May 2008, DOE has also hired one staff person to 
develop credit policies and procedures specific to LGP, and to fully 
establish its credit policy function. They also said that these credit 
policies and procedures would provide internal guidance related to some 
aspects of application review. 

DOE officials told us they also expect the application process guidance 
they developed for companies to also serve as internal review policies 
and procedures. This guidance provides instructions on the content and 
format applicants should adhere to when applying for a guarantee, such 
as background information; a project description; and technical, 
business, and financing plans. The guidance generally aligns with 
information in the final regulations on the factors DOE plans to review 
and should make it easier for companies to develop applications. 
However, in some cases the guidance lacks specificity for applicants. 
In addition, when considering the guidance for use as internal policies 
and procedures, as DOE has indicated it will be used, we determined 
that it does not contain criteria or guidance that would be sufficient 
for DOE reviewers. Specifically, it lacks instruction and detail 
regarding how DOE will determine project eligibility and review 
applications, such as roles and responsibilities, criteria for 
conducting and documenting analyses, and decision making. For example, 
we found the following: 

* Project eligibility. DOE does not delineate how it will evaluate 
project eligibility--that is, how each project achieves substantial 
environmental benefits and employs new or significantly improved 
technologies. The guidance requires applicants to submit background 
information on the technologies and their anticipated benefits but does 
not require enough detail for DOE to assess the information. Without 
such detail, it is unclear how DOE will measure each project's 
contribution to the program. 

* Independent engineer's report. DOE's guidance does not provide 
sufficient detail on the technical information applicants should submit 
in this report, even though the guidance requires that the report 
comprehensively evaluate five technical elements as well as contractual 
requirements and arrangements.[Footnote 15] DOE officials told us that 
applicants generally develop this report for investors and that the 
reports will likely be of varying quality and detail. DOE officials 
also expect that, in developing a separate report that assesses this 
information, they will likely need to fill considerable gaps and 
conduct additional analyses. While DOE recognizes these reports serve 
an important due diligence function, DOE has not provided applicants 
with specific instructions on what to include. As a result, DOE is 
likely to lose efficiency and effectiveness when it uses the reports to 
aid in evaluating loan guarantee applications. 

* Creditworthiness. For a company to be eligible for a loan guarantee, 
a reasonable prospect of repayment must exist and the applicant cannot 
have delinquent federal debt, which is critical to determine at the 
beginning of the review process to assess whether an applicant is even 
eligible. Therefore, a sound assessment of creditworthiness is 
essential. However, the criteria DOE has established to evaluate 
creditworthiness--which it used during the preapplication process and 
plans to use for future applications--did not take into account the 
more meaningful and thorough information required for the full 
application process. In addition, while DOE's guidance requests 
applicants to submit more complete information, such as a credit 
assessment, it does not provide details regarding how DOE will evaluate 
the information to determine creditworthiness. 

* Project cost information. DOE's guidance for the application process 
instructs applicants to indicate if their cost estimates are firm or 
subject to change, but it does not request applicants to report a level-
of-confidence in their total project estimates. GAO has reported that 
for management to make good decisions and determine if a program is 
realistically budgeted, the estimate must quantify the uncertainty so 
that a level of confidence can be given about the estimate.[Footnote 
16] For example, an uncertainty analysis could inform DOE management 
that there is a 60 percent chance that a project's cost will be greater 
than estimated. Without requiring information on the uncertainty in 
project cost estimates and specifying how it will assess that 
information, DOE may not be able to appropriately determine a project's 
feasibility and identify projects that could eventually require 
substantially more investment or loans for completion. 

Without sufficient internal policies and procedures that correspond to 
application components, DOE's application review process will lack 
transparency and it will be difficult for DOE to consistently, 
thoroughly, and efficiently evaluate project applications. 

Identifying Eligible Lenders and Monitoring Loans and Lenders: 

OMB Circular A-129 calls for agencies to establish policies and 
procedures to identify eligible lenders and to monitor loans and 
lenders. DOE has hired a director of monitoring and, according to DOE 
officials, is currently developing policies and procedures that will 
include (1) processes for identifying eligible lenders through a 
competitive process, as well as an associated checklist and guide for 
evaluating potential lenders, and (2) loan servicing and monitoring 
guidelines. These policies and procedures may build upon the monitoring 
policies of the Overseas Private Investment Corporation 
(OPIC).[Footnote 17] Implementing rigorous monitoring policies and 
procedures will help DOE ensure the success of the loan guarantee 
program. According to DOE officials, these policies and procedures will 
be completed before DOE issues the first loan guarantees. 

Estimating Subsidy Costs: 

As required by the LGP's fiscal years 2007 and 2008 appropriation, DOE 
plans to charge borrowers fees to cover subsidy costs, as permitted by 
Title XVII. However, estimating the subsidy cost for the LGP will be 
difficult because of inherent risks due to the nature and 
characteristics of the program. To the extent that DOE underestimates 
the costs and does not collect enough fees from borrowers, taxpayers 
will ultimately be responsible for any shortfall. Therefore, it is 
critical that DOE have a sound and comprehensive methodology to develop 
its cost estimates. Guidance on preparing subsidy cost estimates lists 
procedures necessary to estimate subsidy costs, such as the development 
of a cash flow model; the review and approval process; and 
documentation of the cash flow model and underlying 
assumptions.[Footnote 18] OMB Circular A-129 requires agencies to 
develop models to estimate subsidy costs before obligating direct loans 
and committing loan guarantees. According to LGP officials, DOE has 
submitted a draft subsidy cost model to OMB for approval and has 
drafted documentation for the subsidy calculation process. 

Estimating Administrative Costs: 

Title XVII requires DOE to collect fees from borrowers to cover 
applicable administrative costs. Such costs could include costs 
associated with evaluating applications; offering, negotiating, and 
closing guarantees; and servicing and monitoring the guarantees. The 
federal accounting standard for cost accounting[Footnote 19] states 
that cost information is an important basis for setting fees and 
reimbursements and that entities should report the full cost of 
programs, including the costs of (1) resources the office uses that 
directly or indirectly contribute to the program, and (2) identifiable 
supporting services other offices provide within the reporting entity. 
While DOE has prepared a schedule of fees to be charged for the first 
solicitation, it could not provide support for how it calculated the 
fees. DOE officials stated that they used professional judgment as a 
basis for the fee structure. However, DOE has not developed polices and 
procedures to estimate administrative costs, including a determination 
of which costs need to be tracked. For example, DOE has not tracked 
administrative costs associated with the time general counsel staff 
have spent working on issues related to the LGP. Therefore, DOE lacks 
assurance that the fees it collects will fully cover applicable 
administrative costs, particularly support costs from offices outside 
of the LGP office, such as the general counsel. According to DOE 
officials, some element of judgment must be used at this time in the 
determination of fees and as more experience is gained they will be 
able to develop policies and procedures designed to ensure that 
adequate fees are collected to cover administrative costs. 

Accounting for the Loan Guarantee Program: 

In April 2008, DOE officials told us that policies and procedures to 
account for the LGP are nearly complete. Under the LGP regulations, DOE 
may issue loan guarantees for up to 100 percent of the loan amount as 
long as FFB disburses the loan. OMB Circular A-11, Preparation, 
Submission and Execution of the Budget, calls for credit issued by FFB 
to be budgeted for as a direct loan. Because the accounting treatment 
mirrors the budgeting, DOE would also account for such loans as direct 
loans. Accordingly, DOE has indicated that the policies and procedures 
will cover accounting for both direct loans and loan guarantees. 

DOE Has Not Completed Its Framework for Evaluating Program Progress: 

DOE has also not completed the measures and metrics it will use to 
evaluate program progress. DOE included some of these in its fiscal 
year 2009 budget request and its concept of operations document, but 
LGP's director told us the measures and metrics have not been made 
final because DOE and OMB have not yet agreed on them. In assessing the 
draft measures and metrics, we observed the following shortcomings: 

* DOE intends to measure outcomes directly tied to overall program 
goals--installing new capacity, reducing greenhouse gas emissions, and 
reducing air pollution--and has said it will develop baselines or 
benchmarks for these outcomes. However, it has not yet gathered and 
analyzed the necessary data on, for example, existing capacity or 
current emission levels for categories of LGP project technologies. 

* DOE included a measure for the recovery of administrative costs but 
not one for the recovery of subsidy costs, which will most likely be 
the more significant program cost. 

* DOE's metric to assess the effectiveness of financing decisions-- 
containing the loss rate to 5 percent--may not be realistic; it is far 
lower than the estimated loss rate of over 25 percent that we 
calculated using the assumptions included in the fiscal year 2009 
president's budget.[Footnote 20] 

Inherent Risks Will Make Estimating Subsidy Costs Difficult and May 
Introduce Self-Selection Biases in the Projects That Ultimately Receive 
Loan Guarantees: 

The nature and characteristics of the LGP will make estimating the 
program's subsidy costs difficult even if DOE develops a sound and 
comprehensive methodology. Evaluating the risks of individual projects 
applying for loan guarantees will be difficult because the LGP targets 
innovative energy technologies and because projects will likely have 
unique characteristics--varying in size, technology, and experience of 
the project sponsor. For the first solicitation alone, the technologies 
range from a modest energy efficiency project to multiyear advanced 
coal projects, and estimated project costs range from around $25 
million to more than $2 billion. In fiscal year 2008, DOE plans to 
further diversify the types of technology projects that it will 
consider for its loan portfolio, including nuclear power facilities, 
whose project costs may be more than $5 billion for each facility. 
Further, DOE will not gain significant experience in each technology 
because the program's objective is to commercialize a limited number of 
each type of innovative technologies. Therefore, the types of projects 
will, by design, evolve over time, and the experience and data that DOE 
gains may not be applicable to evaluating the risks of projects 
applying in the future.[Footnote 21] 

The composition of DOE's eventual portfolio will even further limit the 
data available to help DOE evaluate project risks. Unlike an agency 
that provides a high volume of loan guarantees for relatively similar 
purposes, such as student loans or home loans, DOE will likely approve 
a small number of guarantees each year, leaving it with relatively 
little experience to help inform estimates for the future. In addition, 
DOE's loan guarantees will probably be for large dollar amounts, 
several of which could range from $500 million to more than $1 billion 
each. As a result, if defaults occur, they will be for large dollar 
amounts and will likely not take place during easily predicted time 
frames. Recoveries may be equally difficult to predict and may be 
affected by the condition of the underlying collateral. In addition, 
project risks and loan performance could depend heavily on regulatory 
and legislative actions, as well as future economic conditions, 
including energy prices and economic growth, which generally can not be 
predicted accurately. These factors combine to make it difficult for 
DOE to prepare reliable estimates of subsidy costs.[Footnote 22] To the 
extent that DOE underestimates the costs of the LGP and does not 
collect enough fees from borrowers, taxpayers will ultimately have to 
pay for any shortfalls. Under FCRA, DOE is required to update, or 
reestimate, the subsidy costs of LGP to reflect actual loan performance 
and changes in expected future loan performance. Shortfalls identified 
in annual reestimates are automatically funded by the federal 
government under the terms of the FCRA and are not subject to 
congressional scrutiny during the annual appropriation 
process.[Footnote 23] 

The likelihood of misestimates and the practice of charging fees to 
cover all the estimated costs may lead to biases in the projects that 
ultimately receive loan guarantees and tilt the portfolio of loan 
guarantees toward those that will not pay for themselves. In general, 
potential borrowers will know more about their projects and 
creditworthiness than DOE. As a result, borrowers will be more likely 
to accept loan guarantee offers if they believe DOE has underestimated 
the projects' risks and therefore set the fee too low, than if they 
believe DOE has overestimated risks. Underestimated fees amount to an 
implicit subsidy. The CBO reported that such a bias in applicants' 
acceptance of loan guarantees increases the likelihood that DOE's loan 
guarantee portfolio will have more projects for which DOE 
underestimated the fee. CBO evaluated the cost of the LGP and estimated 
that DOE would charge companies, on average, at least 1 percent lower 
than the likely costs of the guarantees.[Footnote 24] To the extent 
that DOE underestimates the fee, and does not collect enough fees from 
borrowers to cover the actual subsidy costs, taxpayers will bear the 
cost of any shortfall. 

Even if DOE estimates the subsidy cost with a reasonable degree of 
accuracy and charges the applicants fees to cover the true costs, there 
is a potential for a self-selection bias in the companies participating 
in the program toward those for which the fee is small relative to the 
expected benefits of the loan guarantee (such as more favorable loan 
terms or a lower interest rate). As CBO recently reported about the 
LGP, a loan guarantee would improve a project's financial viability if 
the cost of the guarantee is shifted to the federal government. 
However, when the borrower pays a fee to cover the subsidy cost, as is 
the case with the LGP, the cost and most of the risk stay with the 
project and the viability of the project may not be substantially 
improved. Therefore, for such projects, there is a practical limit to 
how large the fee can be without jeopardizing the project's financial 
prospects; these constraints add to the challenge of setting fees high 
enough to compensate for uncertainties. To the extent that some 
projects targeted by Title XVII are not financially viable without some 
form of federal assistance or favorable treatment by regulators, these 
projects will not pursue loan guarantees even though they are otherwise 
eligible. As a result, if this financial viability is not distributed 
evenly across technologies targeted by Title XVII, the projects that 
ultimately receive loan guarantees may not represent the full range of 
technologies targeted by Title XVII. 

DOE officials noted that the borrower pays option may cause the more 
risky potential borrowers that would be required to pay a higher fee to 
either (1) contribute more equity to their projects to lower the fee or 
(2) abandon their projects and not enter the program. If potential 
borrowers contribute more equity, this could decrease default risk or 
improve potential recoveries in the event of a default. 

Conclusions: 

More than a year has passed since DOE received funding to administer 
the LGP and we recommended steps it should take to help manage the 
program effectively and maintain accountability. We recognize that it 
takes some time to create a new office and hire staff to implement such 
a program. However, instead of working to ensure that controls are in 
place to help ensure the program's effectiveness and to mitigate risks, 
DOE has focused its efforts on accelerating program operations. 
Moreover, because loan guarantee programs generally pose financial risk 
to the federal government, and this program has additional inherent 
risks, it is critical that DOE complete basic management and 
accountability activities to help ensure that it will use taxpayer 
resources prudently. These include establishing sufficient evaluation 
criteria and guidance for the selection process, resource estimates, 
and methods to track costs and measure program progress. Without 
completing these activities, DOE is hampering its ability to mitigate 
risks of excessive or unnecessary losses to the federal government and 
American taxpayers. 

The difficulties DOE will face in estimating subsidy costs could 
increase LGP's financial risk to the taxpayer. If DOE underestimates 
costs, the likely end result will be projects that do not fully pay for 
themselves and an obligation to taxpayers to make up the difference. 
Furthermore, the inherent risks of the program, along with the 
expectation that borrowers will cover the costs of their loan 
guarantees, may lead to self-selection bias that tilts the portfolio of 
projects toward those for which costs have been underestimated. Neither 
we nor DOE will be able to fully evaluate the extent or magnitude of 
the potential financial costs to the taxpayer until DOE has developed 
some experience and expertise in administering the program. Expanding 
the LGP at this juncture, when the program's risks and costs are not 
well understood, could unnecessarily result in significant financial 
losses to the government. Self-selection bias may also--under certain 
conditions--lead to less than the full range of projects of 
technologies targeted by Title XVII represented in the LGP. The likely 
costs to be borne by taxpayers and the potential for self-selection 
biases call into question whether the program can fully pay for itself; 
they also call into question whether the program will be fully 
effective in promoting the commercialization of a broad range of 
innovative energy technologies. 

It is important to note that, while we found that inherent risks and 
certain features of the program may lead to unintended taxpayer costs 
and that self-selection biases may reduce the scope of participation in 
the program, this is not an indication that the overall costs of the 
program outweigh the benefits. Rather, it simply means that the costs 
may be higher and the benefits lower than expected. Finally, the extent 
to which these costs and benefits will differ from expectations over 
the life of the program is something that cannot be reasonably 
estimated until DOE gains some experience in administering the LGP. 
Even at the current planned pace of the program, it will take a number 
of years before we can observe the extent to which unintended taxpayer 
costs are incurred or the benefits of innovative energy technologies 
emerge. 

Matter for Congressional Consideration: 

To the extent that Congress intends for the program to fully pay for 
itself, and to help minimize the government's exposure to financial 
losses, we are suggesting that Congress may wish to consider limiting 
the amount of loan guarantee commitments that DOE can make under Title 
XVII until DOE has put into place adequate management and internal 
controls. We are also making recommendations to assist DOE in this 
regard. 

Recommendations for Executive Action: 

To improve the implementation of the LGP and to help mitigate risk to 
the federal government and American taxpayers, we recommend that the 
Secretary of Energy direct the Chief Financial Officer to take the 
following steps before substantially reviewing LGP applications: 

* complete detailed internal loan selection policies and procedures 
that lay out roles and responsibilities and criteria and requirements 
for conducting and documenting analyses and decision making; 

* clearly define needs for contractor expertise to facilitate timely 
application reviews; 

* amend application guidance to include more specificity on the content 
of independent engineering reports and on the development of project 
cost estimates to provide the level of detail needed to better assess 
overall project feasibility; 

* improve the LGP's full tracking of the program's administrative costs 
by developing an approach to track and estimate costs associated with 
offices that directly and indirectly support the program and including 
those costs as appropriate in the fees charged to applicants; 

* further develop and define performance measures and metrics to 
monitor and evaluate program efficiency, effectiveness, and outcomes; 
and: 

* clarify the program's equity requirements to the 16 companies invited 
to apply for loan guarantees and in future solicitations. 

Agency Comments and Our Evaluation: 

We provided a draft of this report to the Secretary of Energy for 
review and comment. DOE generally disagreed with our characterization 
of its progress to date in implementing the LGP. DOE stated two of our 
six recommendations were inapplicable to the LGP, indicated it has 
largely accomplished the remaining four recommendations, and disagreed 
with our matter for congressional consideration. DOE further stated 
that our report contains flawed logic, significant inaccuracies, and 
omissions; however, DOE did not provide evidence to support these 
assertions. Our evaluation of DOE's comments follows. A more detailed 
analysis is presented in appendix III. 

In particular, DOE stated that we placed disproportionate emphasis on 
activities that should be completed for a fully implemented loan 
guarantee program rather than one that is currently being implemented, 
and that we overlooked DOE's accomplishments to date. We disagree. We 
believe that our report accurately assesses the LGP in its early 
development stage and focused our report's analysis and recommendations 
on activities that should be completed before DOE begins to 
substantively review any applications. DOE states that it will have 
completed many of these activities before it issues loan guarantees, 
but we continue to believe these activities should be completed before 
DOE reviews applications and negotiates with applicants so that it can 
operate the program prudently. In several cases, DOE cites as complete 
documents and activities that were, and still are at the time of this 
report, in draft form. For example, in several instances DOE states 
that it has "implemented" its credit subsidy model. However, as of June 
24, 2008, DOE indicated that OMB has not approved its model. Further, 
DOE illustrates in an updated timetable it provides in its appendix B 
of its comment letter that a majority of these activities are not yet 
complete and that several will not be complete until the end of the 
calendar year 2008. DOE's entire letter, including its appendixes, is 
reproduced as appendix III of this report. 

Regarding our recommendation on policies and procedures for conducting 
reviews, DOE cites policies and procedures that it believes are 
adequate for continuing program implementation. We disagree. DOE is 
developing credit policies and procedures, but it does not have 
complete internal application policies and procedures, which it should 
have as it begins to review and negotiate its first loan guarantee 
applications. DOE also lacks any substantive information in its 
external application guidance on how it will select technologies. DOE 
has indicated that some of this information will be included in future 
solicitations. 

DOE partially agreed with our recommendation to define the expertise it 
will need to contract for and stated that it is developing descriptions 
of necessary contractor expertise on a solicitation-specific basis. 
Although DOE may plan to complete such descriptions and other 
preparatory work for future solicitations, DOE did not provide us with 
any information for contractor expertise for the 2006 solicitation. 
DOE's timetable provided in Appendix B indicates an August 2008 
completion date for its acquisition strategy and contract vehicles; 
this target may be in time for future solicitations but it is not in 
time for the applications that companies are now submitting and DOE is 
reviewing. DOE also states that it is not possible to develop generic 
definitions of needed contractor expertise because the department's 
needs will vary from solicitation to solicitation. We continue to 
believe it is both reasonable and feasible for DOE to develop estimates 
for the timing and type of resources the department will require. To be 
transparent and consistent in its review and negotiation processes, 
DOE's statements of work within sectors and across sectors should have 
similar frameworks and rationale. Specifically, DOE may need assistance 
in areas common to all technologies, such as cost and risk analysis, 
project management, and engineering and design reviews. DOE should be 
able to start defining these and other areas on the basis of past 
experience. 

DOE disagreed with our recommendation to provide more specific 
application guidance on the content of independent engineering reports. 
DOE stated that this specificity is not required, necessary, or 
appropriate for LGP implementation. We disagree. Providing more 
specificity to companies on DOE's expectations for an application's 
content--and basic information about how it will review the projects-- 
will help companies develop higher quality application materials and 
help ensure thorough, consistent, and efficient evaluations. Taking 
this step is also likely to decrease the number of requests for more 
analyses or information from the applicant. We also continue to believe 
it is reasonable for DOE to provide more specificity on how to develop 
project cost estimates, including a level-of-confidence estimate, so 
that it can better evaluate project cost estimates. 

DOE disagreed with our recommendation that it track the administrative 
costs associated with the LGP. DOE stated it is appropriate to track 
the costs of the LGP office and that it plans to develop a methodology 
for doing so, but there is no reason to track the costs of certain 
support activities. We disagree. Title XVII requires DOE to charge and 
collect fees that the Secretary determines are sufficient to cover 
applicable administrative expenses. The federal accounting standard for 
managerial cost accounting requires agencies to determine and report 
the full costs of government goods and services, including both direct 
and indirect costs associated with support activities. Therefore, we 
believe it is appropriate for DOE to consider costs associated with 
support activities, such as costs associated with the time general 
counsel staff spend working on issues related to the LGP, to be 
"applicable administrative costs." If DOE does not consider support 
costs when setting fees, it cannot be assured that the fees it collects 
will fully cover all administrative costs incurred to operate the LGP. 

Regarding our recommendation to further develop and define performance 
measures and metrics before substantially reviewing LGP applications, 
DOE stated it has developed initial draft performance measures and 
metrics with the aim of completing them by the end of calendar year 
2008. We continue to believe such measures and metrics should be 
developed as soon as possible for the 16 projects DOE invited to apply 
for guarantees. In addition, DOE has emphasized its focus on selecting 
technologies and projects that will produce significant environmental 
benefits, in particular the avoidance of air pollutants and greenhouse 
gases. However, it is unclear how DOE will do so without gathering data 
to establish baseline measures and metrics associated with these 
benefits. 

DOE stated that it did not need to take additional action to implement 
our recommendation that it clarify the LGP's equity requirements with 
the 16 companies invited to apply and in future solicitations because 
it informed the 16 companies invited to apply of DOE's equity position. 
However, DOE officials told us that they communicated this information 
orally and did not provide specific documentation to the 16 companies. 
We believe it is reasonable to provide potential applicants with key 
information, such as the LGP's equity requirement, in writing to help 
ensure that all potential applicants receive the same information. 
Furthermore, we continue to believe that this is appropriate 
information to include in future solicitations. 

In commenting on our matter for congressional consideration, DOE 
disagreed with our findings that LGP does not have adequate management 
and internal controls in place to proceed and that it is well on the 
way to implementing the accepted recommendations contained in our 
report. We disagree. DOE has been slow to recognize the inefficiencies 
and inconsistencies it may face in not having key activities, policies, 
and procedures completed or in place before proceeding with its 
operations. While it is important that DOE make meaningful progress in 
accomplishing its mission under Title XVII, it is also important to 
operate the program prudently, given that billions of taxpayer dollars 
are at risk. 

DOE also made minor technical suggestions, which we incorporated as 
appropriate. DOE's written comments and our more detailed responses are 
provided in appendix III. 

We are sending copies of this report to congressional committees with 
responsibilities for energy and federal credit issues; the Secretary of 
Energy; and the Director, Office of Management and Budget. We are also 
making copies available to others upon request. This report will be 
available at no charge on GAO's Web site at [hyperlink, 
http://www.gao.gov]. 

If you or your staff have any questions about this report, please 
contact Frank Rusco at 202-512-3841 or ruscof@gao.gov. Contact points 
for our Offices of Congressional Relations and Public Affairs may be 
found on the last page of this report. Key contributors to this report 
are listed in appendix IV. 

Signed by: 

Frank Rusco: 

Acting Director, Natural Resources and Environment: 

[End of section] 

Appendix I: Scope and Methodology: 

To assess the Department of Energy's (DOE) progress in issuing final 
regulations that govern the loan guarantee program (LGP), we reviewed 
and analyzed relevant provisions of Title XVII of the Energy Policy Act 
of 2005; the LGP's August 2006 guidelines and solicitation; its 2007 
notice of proposed rulemaking; public comments on the proposed 
rulemaking; and final regulations published in the Federal Register. We 
compared the final regulations to applicable requirements contained in 
Title XVII and OMB Circular A-129 Policies for Federal Credit Programs 
and Non-Tax Receivables, which prescribes policies and procedures for 
federal credit programs. We also discussed the final regulations with 
DOE officials. 

To assess DOE's progress in taking actions to help ensure that the 
program is managed effectively and to maintain accountability, we 
reviewed documentation related to DOE's implementation of the LGP. 
Specifically, we reviewed and analyzed the LGP's "concept of 
operations," technical and financial review criteria for the 
preapplication process, DOE's Application Process Overview Guidance, 
Preapplication Evaluation Procedural Guidance, minutes of Credit Review 
Board meetings held between April 2007 and February 2008, and other 
relevant documents. As criteria, we used our Standards for Internal 
Control in the Federal Government[Footnote 25] and budget and 
accounting guidance. Further, to assess DOE's progress to develop 
measures and metrics, we applied GAO's Government Performance and 
Results Act guidance and analyzed information in Title XVII, DOE's 
budget request documents and other relevant documents. 

When DOE had completed its preapplication review process, we obtained 
documentation from DOE's decision files related to the 140 
preapplications for 143 projects. We reviewed all decision files DOE 
provided to us and analyzed the documentation for the preapplications 
that DOE considered responsive to the August 2006 solicitation to 
determine if DOE conducted its review process consistently and 
documented its decisions sufficiently. Responsive decision files 
generally contained a summary of the technology; separate technical and 
financial review scoring sheets; minutes documenting results of joint 
technical-financial meetings; and a DOE summary of its secondary review 
process. We also reviewed other preapplication materials that DOE 
provided to us. We did not evaluate the financial or technical 
soundness of the projects that DOE invited to submit full applications. 

Further, we interviewed cognizant DOE officials from the LGP office, 
detailees from the Department of the Treasury, and contractor personnel 
assisting DOE with the preapplication process, the development of 
policies and procedures, and the implementation of the program. In 
addition, we interviewed officials from DOE's Office of General 
Counsel; Office of the Chief Financial Officer; and program offices 
that participated in the technical reviews of the preapplications, 
including the Office of Energy Efficiency and Renewable Energy, the 
Office of Fossil Energy, the Office of Nuclear Energy, and the Office 
of Electricity Delivery and Energy Reliability. We also spoke with 
officials from the Departments of Agriculture and Transportation to 
discuss policies and procedures for managing their loan guarantee 
programs. 

To examine the inherent risks associated with the LGP, including the 
"borrower pays" option of Title XVII, we reviewed our prior work on 
federal loan guarantee programs, including programs under the Maritime 
Administration, the Federal Housing Administration, and the Small 
Business Administration. We interviewed officials at and reviewed 
reports by the Congressional Budget Office. We also discussed risks 
with DOE officials. 

We conducted this performance audit from August 2007 through June 2008 
in accordance with generally accepted government auditing standards. 
Those standards require that we plan and perform the audit to obtain 
sufficient, appropriate evidence to provide a reasonable basis for our 
findings and conclusions based on our audit objectives. We believe that 
the evidence obtained provides a reasonable basis for our findings and 
conclusions based on our audit objectives. 

[End of section] 

Appendix II: Title XVII Categories, DOE's First Solicitation, and 
Projects DOE Invited to Submit Applications for Loan Guarantees: 

The Energy Policy Act of 2005 (EPAct 2005) listed 10 categories of 
projects that would be eligible to apply for loan guarantees under 
Title XVII. In August 2006, DOE issued a solicitation inviting 
companies to submit preapplications for projects eligible to receive 
loan guarantees under Title XVII. The solicitation listed categories 
falling within 8 of the 10 Title XVII categories. The solicitation did 
not invite projects for two Title XVII categories: advanced nuclear 
energy facilities, and refineries, meaning facilities at which crude 
oil is refined into gasoline. Table 1 shows the 10 categories. 

Table 1: Project Categories for Title XVII and DOE Solicitation: 

EPAct 2005 Title XVII Categories: (August 2005): Renewable energy 
systems; 
DOE Solicitation Categories: August 2006): Biomass, solar, wind, and 
hydropower. 

EPAct 2005 Title XVII Categories: (August 2005): Advanced fossil energy 
technology (including coal gasification meeting the criteria in 
subsection (d)[A] ); 
DOE Solicitation Categories: August 2006): Fossil energy coal. 

EPAct 2005 Title XVII Categories: (August 2005): Hydrogen fuel cell 
technology for residential, industrial, or transportation applications; 
DOE Solicitation Categories: August 2006): Hydrogen. 

EPAct 2005 Title XVII Categories: (August 2005): Carbon capture and 
sequestration practices and technologies, including agricultural and 
forestry practices that store and sequester carbon; 
DOE Solicitation Categories: August 2006): Carbon sequestration 
practices and technologies. 

EPAct 2005 Title XVII Categories: (August 2005): Efficient electrical 
generation, transmission, and distribution technologies; 
DOE Solicitation Categories: August 2006): Efficient electricity 
transmission and delivery and energy reliability. 

EPAct 2005 Title XVII Categories: (August 2005): Efficient end-use 
energy technologies; 
DOE Solicitation Categories: August 2006): Industrial energy efficiency 
projects. 

EPAct 2005 Title XVII Categories: (August 2005): Production facilities 
for the manufacture of fuel efficient vehicles or parts of those 
vehicles, including electric drive vehicles and advanced diesel 
vehicles; 
DOE Solicitation Categories: August 2006): Alternative fuel vehicles. 

EPAct 2005 Title XVII Categories: (August 2005): Pollution control 
equipment; 
DOE Solicitation Categories: August 2006): Pollution control equipment. 

EPAct 2005 Title XVII Categories: (August 2005): Advanced nuclear 
energy facilities; 
DOE Solicitation Categories: August 2006): Not included in 
solicitation. 

EPAct 2005 Title XVII Categories: (August 2005): Refineries, meaning 
facilities at which crude oil is refined into gasoline; 
DOE Solicitation Categories: August 2006): Not included in 
solicitation. 

Source: DOE. 

[A] Pub. L. No. 109-58, Title XVII Sec. 1703 (d) Emission levels. In 
addition to any other applicable federal or state emission limitation 
requirements, a project shall attain at least (1) total sulfur dioxide 
emissions in flue gas from the project that do not exceed 0.05 lb/ 
MMBtu; (2) a 90 percent removal rate (including any fuel pretreatment) 
of mercury from the coal-derived gas, and any other fuel, combusted by 
the project; (3) total nitrogen oxide emissions in the flue gas from 
the project that do not exceed 0.08 lb/MMBtu; and (4) total particulate 
emissions in the flue gas from the project that do not exceed 0.01 lb/ 
MMBtu. 

[End of table] 

On October 4, 2007, DOE announced that it had invited 16 projects to 
submit full applications for loan guarantees. Table 2 includes the 
projects' sponsors, types, descriptions, and their current proposed 
locations. 

Table 2: Projects Invited to Submit Full Applications: 

Company name: Advanced fossil energy: 1. Mesaba Energy Project (MEP-I, 
LLC); 
Project description: Advanced fossil energy: Advanced fossil energy: 
Integrated Gasification Combined Cycle (IGCC[A]) plant that may allow 
for CO2 capture and storage in its design; 
Proposed project location: Advanced fossil energy: Taconite, Minnesota. 

Company name: Advanced fossil energy: 2. Mississippi Power Company; 
Project description: Advanced fossil energy: First IGCC[A] plant to 
generate electricity using lignite coal for fuel; 
Proposed project location: Advanced fossil energy: Kemper County, 
Mississippi. 

Company name: Advanced fossil energy: 3. TX energy, LLC; 
Project description: Advanced fossil energy: IGCC[A] plant that can 
isolate and sell CO2 while producing power and chemicals; 
Proposed project location: Advanced fossil energy: Longview, Texas. 

Company name: Industrial energy efficiency: 4. GR Silicate Nano Fibers 
and Carbonates; 
Project description: Industrial energy efficiency: In paper 
manufacturing, a more energy efficient process that replaces natural 
fibers from trees with synthetic fibers; may allow some CO2 reduction 
and capture; 
Proposed project location: Industrial energy efficiency: Hoquiam, 
Washington. 

Company name: 5. Industrial energy efficiency: Sage Electrochromics; 
Project description: Industrial energy efficiency: Energy efficient 
windows for buildings that can change tint on demand; 
Proposed project location: Industrial energy efficiency: Faribault, 
Minnesota. 

Company name: Solar energy: 6. Bright Source Energy (Luz II, Ltd); 
Project description: Solar energy: Large-scale power tower project 
using concentrated solar-thermal technology; 
Proposed project location: Solar energy: Ivanpah, California. 

Company name: Solar energy: 7. Solyndra, Inc; 
Project description: Solar energy: Thin-film cylindrical photovoltaic 
cells that collect sunlight from many angles; 
Proposed project location: Solar energy: Fremont, California. 

Company name: Electricity delivery and energy reliability: 8. Beacon 
Power Corporation; 
Project description: Electricity delivery and energy reliability: 
Flywheel-based regulation technology that will balance loads of 
electric plants and enhance performance of the power grid; 
Proposed project location: Electricity delivery and energy reliability: 
Stephentown, New York. 

Company name: Hydrogen: 9. Bridgeport Fuel Cell Park, LLC; 
Project description: Hydrogen: Largest single-site installation of fuel 
cells for a power plant; 
Proposed project location: Hydrogen: Bridgeport, Connecticut. 

Company name: Alternative fuel vehicles: 10. Tesla Motors, Inc; 
Project description: Alternative fuel vehicles: Battery-electric car 
with enhanced range and acceleration for the consumer market; 
Proposed project location: Alternative fuel vehicles: Albuquerque, New 
Mexico. 

Company name: Biomass: 11. Alico, Inc; 
Project description: Biomass: Cellulosic ethanol plant that would 
produce several products from multiple feedstocks; 
Proposed project location: Biomass: Hendry County, Florida. 

Company name: Biomass: 12. BlueFire Ethanol, Inc; 
Project description: Biomass: Cellulosic ethanol plant converting 
biomass at landfills to ethanol and other products; 
Proposed project location: Biomass: Riverside County, California. 

Company name: Biomass: 13. Choren USA; 
Project description: Biomass: Gasification plant to produce synthetic 
automotive diesel and light distillates from biomass; 
Proposed project location: Biomass: Southeastern United States[B]. 

Company name: Biomass: 14. Endicott Biofuels, LLC; 
Project description: Biomass: Plant that would feature feedstock 
flexibility and produce a range of biodiesel fuels; 
Proposed project location: Biomass: Louisiana[B]. 

Company name: Biomass: 15. Iogen Biorefinery Partners, LLC; 
Project description: Biomass: Biorefinery to produce ethanol and other 
byproducts from cellulosic feedstocks; 
Proposed project location: Biomass: Bingham County, Idaho. 

Company name: Biomass: 16. Voyager Ethanol, LLC; 
Project description: Biomass: Cellulosic ethanol plant using multiple 
feedstocks to produce ethanol and byproducts; 
Proposed project location: Biomass: Emmetsburg, Iowa. 

Source: DOE. 

[A] Integrated Gasification Combined Cycle (IGCC) is an electric power 
generation plant that combines modern coal gasification technology with 
both gas turbine and steam turbine power generation. Gasification-based 
systems can process a wide variety of feedstocks, including coal, 
biomass, petroleum coke, refinery residues, and other wastes. 

[B] Not all projects have known or public site locations. 

[End of table] 

[End of section] 

Appendix III: Comments from the Department of Energy: 

Note: GAO comments supplementing those in the report text appear at the 
end of this appendix. 

Department of Energy: 
Washington, DC 20585: 

June 13, 2008: 

Mr. Frank Rusco: 
Acting Director, Natural Resources and Environment: 
U.S. Government Accountability Office: 
Washington, D.C. 20548: 

Dear Mr. Rusco: 

This letter is in response to a draft report of the Government 
Accountability Office (GAO), entitled "New Loan Guarantee Program 
Should Complete Activities Necessary for Effective and Accountable 
Program Management" (GAO 08-750) (Draft Report), provided to the 
Department of Energy (DOE or Department) for review and comment on May 
14, 2008. 

Summary: 

The Draft Report contains six GAO recommendations for executive action 
by DOE to improve program management and one recommendation for 
Congressional action. As is the case in many instances, GAO has 
identified aspects of a new program in which more can be done to make 
the program in question function at a higher level once fully 
implemented. Here, GAO has placed a disproportionate emphasis on what 
should be done to improve all aspects of a fully implemented loan 
guarantee program (LGP) without adequately acknowledging the progress 
and accomplishments the Department has achieved in addressing the near 
term actions necessary to stand up the LGP. DOE believes it has 
appropriately and thoughtfully prioritized the resources available to 
it and has taken the first steps necessary to comply with the 
Congressional direction in Title XVII of the Energy Policy Act, 22 USC 
16511, et seq., to advance the commercialization of new and 
significantly improved technologies which will contribute to a cleaner 
environment. DOE is committed to insuring that all necessary actions 
have been taken and that all necessary policies and procedures are in 
place before the first loan guarantee is issued. 

(See comment 1.): 

More specifically, as explained below, the Department has or is in the 
process of implementing four of the executive action recommendations 
and believes that the other two executive action recommendations are 
not required, necessary, or appropriate for implementation of the Loan 
Guarantee Program (LGP). Further, the Department believes that the 
recommendation to Congress is predicated upon a misapprehension that 
DOE does not already have in place adequate management and internal 
controls and may be counterproductive. The Department addresses the 
executive action recommendations in detail in Appendix A to this 
letter, entitled "Department of Energy's Response to GAO 
Recommendations for Executive Action." Also, as explained in Appendix B 
to this letter, entitled "DOE's Detailed Comments on the GAO Draft 
Report," the logic displayed in the Draft Report is often flawed; there 
are assertions without supporting facts; and there are significant 
inaccuracies and omissions. 

(See comment 1.): 

DOE Accomplishments: 

Over the past 18 months, remarkable progress has been made implementing 
the LGP. From a field of 143 preapplications received in response to an 
August 2006 solicitation, 16 projects were invited to submit full 
applications. The Department rigorously reviewed each preapplication in 
accordance with criteria set forth in Guidelines issued in August 2006, 
as supplemented by detailed technical review standards established by 
the Department. 

In conformity with Office of Management and Budget Circular A-129, the 
Department established a Credit Review Board (CRB), comprised of senior 
Department officials, on March 16, 2007. The CRB is the internal 
governing board with authority to oversee all policy matters affecting 
LGP operations. 

The Department's Loan Guarantee Program Office (LGPO) officially began 
operations on April 1, 2007 with the Director of the LGPO coming on 
board on August 6, 2007. Since August 2007, the Director has hired a 
cadre of seasoned professionals with extensive project finance 
experience complemented by particular experience in the Federal 
Government's Overseas Private Investment Corporation (OPIC) and other 
agencies. 

On October 4, 2007, DOE issued final regulations implementing Title 
XVII at 10 CFR Part 609. These regulations were issued less than eight 
months after Congress provided the first dedicated funds for operation 
of the LGPO and the first authority to actually issue loan guarantees. 

The Department has made significant progress in establishing program 
regulations and developing internal administrative and management 
policies and procedures. The Department has completed several 
application guidance documents and internal management guidelines and 
is in the process of developing over five hundred pages of additional 
policies and procedures for the due diligence review of applications; 
established a sophisticated, user-friendly electronic data submission 
system for receipt of applications and supporting documents; installed 
Generally Accepted Accounting Principles (GAAP)-compliant accounting 
systems and procedures to monitor and manage the loans that will be 
guaranteed over the life of each related project; and designed, 
constructed, tested, and, on a pilot basis, operated, a state-of-the-
art model for determining the credit subsidy cost for projects that 
will receive loan guarantees, as required by Title XVII and the FCRA. 

(See comment 1.): 

Additional details of the accomplishments of the Department in 
implementing the Title XVII program and future plans are supplied in 
Appendix B and in the table which follows at page 3 infra, entitled 
"Summary of Planning Activities for the Loan Guarantee Program Office." 

Importantly, all of the above-described accomplishments and measures 
will be achieved in advance of any issuance of loan guarantees. With 
these actions, the Department has sufficient policies in place, coupled 
with a growing staff of finance and technical professionals, to move 
forward with the next steps necessary to review the loan guarantee 
applications resulting from the August 2006 solicitation as they are 
received; perform a full due diligence review of those applications 
prior to recommending to the Secretary that any of them receive loan 
guarantees; and prepare to issue additional solicitations, as 
authorized by Title XVII and the Consolidated Appropriations Act, 2008. 

(See comment 1.): 

Response to the Draft Report: 

Moving forward, the Department will continue to ensure all necessary 
and appropriate policies and procedures are in place to maintain the 
integrity of the LGP and to promote the objectives of the Title XVII 
program while protecting the American taxpayer. As the Department gains 
experience, it intends to further refine its policies and procedures to 
address new facts and circumstances as they develop. But this 
additional experience and insight and the fine-tuning of procedures and 
policies can only be gained by executing the program, not by remaining 
in a continuous planning mode. 

Unfortunately, the Draft Report completely overlooks many of the above-
described accomplishments, notwithstanding the numerous documents 
provided to the GAO audit team and interviews conducted by the audit 
team with Departmental employees over a nine month period. Additional 
details regarding the incorrect statements contained in the Draft 
Report are discussed in the attached appendices. 

(See comment 1.): 

a. Recommendations for Executive Action: 

The draft report contains six recommendations for executive action. The 
six actions address the following matters: 

1. policies and procedures for conducting reviews: 

2. use of contractor expertise: 

3. content of independent engineering reports: 

4. tracking of administrative costs: 

5. performance measures: 

6. clarification of project equity requirements: 

As further discussed in Appendix A, the Department believes that it has 
largely accomplished all but two of the recommendations 
(recommendations three and four) and it rejects those two 
recommendations because they are inapplicable to the LGP. Specifically: 

(See comment 1.): 

* With respect to the first recommendation, the Department has 
established policies and procedures adequate to move forward with the 
processing and review of the applications relating to the 16 successful 
preapplicants from the August 2006 solicitation and to draft and issue 
solicitations for FY 2008. 

* The Department is already fulfilling the second recommendation by 
developing descriptions of necessary contractor expertise on a 
solicitation-specific basis. 

* Recommendation three is inapplicable because it indicates a need to 
establish generic contractor scope of work descriptions for independent 
engineers when the unique nature of each technology requires that 
descriptions be established on a solicitation-specific basis. 

* Recommendation four is inapplicable because actions taken by other 
program offices relating to the LGP are in furtherance of the missions 
of the program offices and the costs of those actions are not properly 
assignable to the LGP. 

* As for recommendation five, the Department already has developed a 
set of proposed performance measures; the Department hopes to complete 
full implementation by the end of 2008. 

* With respect to recommendation six, the Final Rule clearly states 
that equity is cash and accordingly, no further clarification is 
required. 

No other actions are required to meet the executive action 
recommendations. 

b. Recommendation for Congressional Consideration: 

In addition to the recommendations for executive action, the Draft 
Report recommends that "Congress may wish to consider limiting the 
amount of loan guarantee commitments that DOE can make under Title XVII 
until DOE has put into place adequate management and internal 
controls." 

(See comment 1.): 

DOE strongly disagrees. If DOE thought it did not have in place 
"adequate management and internal controls," it would not proceed at 
this time. The Draft Report fails to acknowledge and account for most 
of the procedures and policies that DOE has already implemented or is 
in the process of implementing as well as the limitations that Congress 
already has placed on the Department in Title XVII and in the 
Consolidated Appropriations Act, 2008. The Department is well on the 
way to implementing the accepted executive action recommendations 
contained in the Draft Report. Continued implementation of the 
executive actions, in parallel with execution of the program, will 
enable the Department to apply lessons learned on a continuing basis 
rather than to remain static in a continuous planning mode. The ability 
to move forward is especially important if the Department is to make 
meaningful progress in accomplishing its mission under Title XVII. 

(See comment 1.): 

c. Errors and Omissions in the Body of the Draft Report: 

The Draft Report:

(See comments 5-8 and 10-13.): 

* Mischaracterizes the operation of the Federal Credit Reform Act of 
1990; 

* Uses flawed logic to speculate on the potential for underestimates of 
credit subsidy costs;

* Offers other suppositional assertions or assumptions that are 
inaccurate; 

* Contains a number of factual inaccuracies; and: 

* Omits pertinent information on the current operations of the LGPO. 

(See comment 1.): 

Specific line-by-line comments that document the Draft Report's errors 
and omissions are provided in Appendix B of this letter, entitled 
"DOE's Detailed Comments on the GAO Draft Report." In addition, the 
LGPO has provided "Supplemental Technical Comments" in Appendix C in 
order to correct factual inaccuracies within the Draft Report. The 
Department would be pleased to provide any additional information that 
is desired in this matter. 

(See comments 2-20.): 

(See comment 21-25.): 

Thank you for the opportunity to review the Draft Report. We look 
forward to your favorable consideration of the comments and 
recommendations contained in this letter and attached appendices. 

Sincerely, 

Signed by: 

Steven Isakowitz: 

Chief Financial Officer: 

Attachments:

Response to GAO Recommendations for Executive Action (Appendix A): 

Detailed Comments on the GAO draft Report (Appendix B): 

Supplemental Technical Corrections (Appendix C): 

Appendix A: 

U.S. Department of Energy: 

GAO-08-750 – "Department of Energy: New Loan Guarantee Program Should 
Complete Activities Necessary for Effective and Accountable Program 
Management": 

Response to GAO Recommendations for Executive Action: 

Recommendation 1: Complete detailed internal loan selection policies 
and procedures that lay out roles and responsibilities and criteria and 
requirements for conducting and documenting analyses and decision 
making. 

DOE Response: In large measure, this recommendation has been completed. 
To the extent it is not completed, the Department is well on the way 
toward completion. 

(See comment 1.): 

First, the internal roles and duties of responsible Departmental 
officials relevant to the loan guarantee decision-making process are 
already well defined. These are set out in the Charter of the Credit 
Review Board as well as in a memorandum from the Chairman of the Credit 
Review Board to the Chief Financial Officer and other heads of offices. 
To the extent the above recommendation suggests that the Department has 
not established uniform internal decision-making procedures, the 
Department disagrees. 

Second, with respect to the loan selection policies and procedures used 
by the LGPO, the Department likewise has accomplished a great deal that 
the Draft Report appears to overlook or downplay. Specifically, the 
Department: 

* Based on a thorough technical, environmental, financial, and legal 
review, has selected 16 of 143 pre-applicants from its initial 
solicitation to receive invitations to submit full loan guarantee 
applications 

* Has completed several application guidance documents and internal 
management guidelines that are being applied to the 16 successful pre-
applicants from the initial solicitation and will be applied in future 
solicitations 

* Is in the process of developing additional credit review and loan 
guarantee processing manuals that, when completed, will comprise 
policies and procedures for the application and due diligence review of 
applications 

* Has established a sophisticated, user-friendly electronic data 
submission system for receipt of loan guarantee applications and 
supporting documents 

* Has installed GAAP-compliant accounting systems and procedures to 
monitor and manage loan guarantees over the life of the project 1

* Has designed, constructed, tested, and implemented a state-of-the-art 
model for determining the credit subsidy cost for all projects that 
will receive loan guarantees, as required by Title XVII and the Federal 
Credit Reform Act of 1990 

* Pursuant to the authority granted in the Consolidated Appropriations 
Act, 2008, on April 11, 2008, has submitted an implementation plan for 
the issuance of three additional solicitations in 2008, and has 
prepared drafts of each of those solicitations that include detailed 
due diligence selection criteria for each of the technologies covered 
by the solicitation. 

(See comment 1.): 

Additional details regarding the Department's policies and procedures 
established to date as well as those still under development are 
presented in the table in Appendix B at page 3. 

Recommendation 2: Clearly define needs for contractor expertise to 
facilitate timely application reviews. 

DOE Response: The Department agrees that contractor expertise must be 
defined so that it is available when needed. However, the precise 
contractor expertise needed by the Department in reviewing applications 
for loan guarantees is going to vary from solicitation to solicitation. 
Accordingly, it is not possible to develop generic definitions of 
needed contractor expertise. Insofar as the Draft Report and the above 
recommendation in particular suggest otherwise, the Department 
disagrees. 

(See comment 1.): 

To the extent the recommendation is directed toward the establishment 
of criteria for needed contractor expertise on a solicitation-specific 
basis, the Department is already implementing the recommendation in an 
appropriate manner. By August 2008, the Department will finalize 
comprehensive statements of work and contractor qualifications under a 
"sources sought" procurement procedure that will provide for the 
technical, financial, legal and marketing expertise needed during the 
due diligence process with the aim of securing qualified contractors by 
the end of the summer, 2008. This effort will include expertise needed 
to review the applications being received from the 16 successful pre-
applicants from DOE's August 2006 solicitation as well as the 
anticipated FY 2008 solicitations for renewable energy, nuclear power, 
and nuclear "front end" (i.e. uranium enrichment) project applications. 

DOE also expects to have additional expertise available when needed in 
the application review process. If for any reason adequate resources or 
needed specialized expertise is not available to review applications on 
a timely basis, the Department will adjust its review schedules 
accordingly, rather than reduce the quality of its underwriting 
process. 

Recommendation 3: Amend application guidance to include more 
specificity on the content of independent engineering reports and the 
development of project cost estimates to provide the level of detail 
needed to better assess overall project feasibility. 

DOE Response: The Department does not concur with this recommendation 
and believes that the discussion in the Draft Report in support of this 
recommendation does not reflect a full understanding of the 
Department's activities or industry underwriting practices with respect 
to independent engineering reports. 

(See comment 1.): 

First, the Draft Report does not adequately credit the fact that the 
Department has issued generic application guidance documents that 
appropriately stress the necessity of a comprehensive independent 
engineer's report, including consideration of factors such as 
environmental impact and infrastructure requirements, as a means of 
assessing the technical efficacy of each proposed project. The generic 
application guidance document states that the determination of the 
technical merit of the project will be influenced by the quality of the 
independent engineering report, including the credentials of the 
consultant, scope of the undertaking, and strength of the opinions 
provided. These generic application guidance documents were provided to 
GAO staff and discussed with the GAO audit team over the course of the 
audit. In particular, as the LGPO staff explained to the audit team, 
each solicitation and each project will have unique characteristics 
and, therefore, it is not possible or appropriate to provide more 
specificity regarding necessary engineering reports in generic 
application guidance documents. 

Second, because of the unique nature of each project, the Department 
will specify more detailed requirements for the independent engineering 
report that it will require in the course of preliminarily reviewing 
application submissions. It is not reasonable or even possible to 
develop detailed job instructions for the independent engineer retained 
by DOE at any earlier time. 

(See comment 1.): 

DOE notes that, despite it making efforts to explain industry practices 
to the GAO audit team, the Draft Report appears to ignore the fact that 
two independent engineering reports will be separately prepared. 
Consistent with prevailing underwriting standards, the applicant will 
retain an independent engineer to prepare a study of the project to 
meet the demands of potential lenders and investors; this independent 
engineering report will be part of the required application submission 
and it will furnish much of the basis for the Department's development 
of instructions for a second independent engineering firm. This second 
independent engineering firm will develop a report at the request of 
the Department that will include a review of technical efficacy and the 
applicant's project cost estimates. 

Third, the Draft Report appears not to consider that all of the 
information provided by the two independent engineering firms will be 
reviewed and analyzed for a third time by the LGPO underwriting team. 
On the basis of the detailed reports and multiple reviews, DOE will 
ascertain whether, all other things being equal, the application 
process should move forward or whether applicants require additional 
guidance. Accordingly, the GAO recommendation for the development of 
more specific guidelines for independent engineers is unnecessary and 
is not being adopted. 

Recommendation 4: Improve the LGP's full tracking of the program's 
administrative costs by developing an approach to track and estimate 
costs associated with offices that directly and indirectly support the 
program and including those costs as appropriate in the fees charged to 
the applicants. 

DOE Response: The Department rejects this recommendation. While it is 
appropriate for the LGPO to develop a means of tracking its own staff 
and other internal administrative expenses,[Footnote 26] the Department 
does not agree that the LGPO should attempt to track or estimate costs 
incurred by program offices that provide a supportive role to the loan 
guarantee application and review process. This is because the 
activities of the LGPO are in furtherance of the missions of the 
program offices. For example, the eventual issuance of loan guarantees 
for nuclear power and "front end," i.e. uranium enrichment, projects 
will further the mission of the Department's Office of Nuclear Energy. 
There is no reason, therefore, why the LGPO should attempt to track the 
cost of the supportive activities provided by other offices within the 
Department. 

(See comment 1.): 

Recommendation 5: Further develop and define performance measures and 
metrics to monitor and evaluate program efficiency, effectiveness, and 
outcomes. 

DOE Response: As noted in the Draft Report, DOE has developed an 
initial draft set of performance measures and metrics. The Department 
will continue to refine these measures with the aim of completing the 
effort by the end of calendar year 2008. 

(See comments 1,4, and 15.): 

Recommendation 6: Clarify the program's equity requirements to the 16 
companies invited to apply for loan guarantees and in future 
solicitations. 

DOE Response: The Department maintains that no further action is 
required to implement this recommendation. With respect to the 
definition of "equity," DOE's Final Rule at 10 CFR 609.2 is clear. 
Equity is "cash contributed by borrowers." The Department is adhering 
to that definition, as it must. The Department is also adhering to the 
clearly stated requirement in the Final Rule at 10 CFR 609.10(d)(5) 
that applicants must make a contribution of "significant" equity in the 
form of cash in order to obtain a loan guarantee commitment.

(See comment 1.): 

On the other hand, the Department understands that the above 
recommendation is not directed at the definition of equity per se but 
at the fact that DOE has indicated that it will also consider certain 
limited classes of non-cash items as contributed assets when it 
evaluates the financial commitment made by loan guarantee applicants to 
their respective projects. This acceptance of non-cash items for 
consideration brings the Department closer in line with established 
commercial practices without altering its adherence to the terms of the 
Final Rule. In this regard, the Department has taken the position that 
non- cash contributions may be considered for loan guarantee purposes 
only if they evidence a commitment of known and certain assets that can 
be readily and reliably appraised or evaluated and monetized (e.g. 
using Generally Accepted Accounting Principles or GAAP). The infusion 
of non-cash contributions, however, will not substitute for the clearly 
stated requirements in the Final Rule regarding equity. This position 
has already been communicated to the 16 successful preapplicants from 
the August 2006 solicitation. 

Appendix B: 

U.S. Department of Energy: 

GAO-08-750 – "Department of Energy: New Loan Guarantee Program Should 
Complete Activities Necessary for Effective and Accountable Program 
Management": 

DOE's Detailed Comments on the GAO Draft Report: 

The following are the Department's detailed responses to the GAO 
findings in the draft Report. 

Management Of The Loan Guarantee Program Office: 

1. Draft Report: On pages 5, 12, 13 of the draft Report, GAO states 
"DOE is not well positioned to manage the LGP effectively and maintain 
accountability because it has not completed a number of management and 
internal control activities key to carrying out the program. As a 
result, DOE may not be able to process applications efficiently and 
effectively.The key activities that DOE has not sufficiently completed 
include (1) clearly defining its key milestones and its specific 
resource needs, (2) establishing policies and procedures for operating 
the program, and (3) agreeing upon key measures to evaluate program 
progress." 

Before the end of the calendar year, the Department will initiate an 
effort with OMB to develop a methodology to estimate and track the 
LGPO's administrative costs. Utilizing this cost tracking system, the 
Department intends to refine its fee structure. Additionally, the 
Department believes that a revolving fund may facilitate the 
implementation of this recommendation, and is planning to study its 
feasibility. 

DOE Response: In making these statements, the Draft Report fails to 
acknowledge the Department's significant accomplishments in 
establishing program regulations and developing internal administrative 
and management policies and procedures. The Department has completed 
several application guidance documents and internal management 
guidelines and is in the process of developing over five hundred pages 
of additional policies and procedures for the due diligence review of 
applications; established a sophisticated, user-friendly electronic 
data submission system for receipt of applications and supporting 
documents; installed GAAP-compliant accounting systems and procedures 
to monitor and manage the loans that will be guaranteed over the life 
of each related project; and designed, constructed, tested, and 
implemented a state-of-the-art model for determining the credit subsidy 
cost for projects that will receive loan guarantees, as required by 
Title XVII and FCRA. Also, the Draft Report fails to credit the fact 
that, in accordance with DOE's Final Rule at 10 CFR 609.2, the Credit 
Review Board will ensure appropriate polices and procedures are in 
place before loans are approved. 

The table on page 3, infra, provides an even more detailed illustration 
of the Department's policies and procedures established to date as well 
as those still under development. Based on these actions, the 
Department maintains that it has sufficient policies in place, coupled 
with a growing cadre of finance and technical professionals, to 
effectively manage the projects from the 2006 solicitation and to 
design the next round of solicitations. As the program proceeds, the 
Department will continue to develop and refine all necessary and 
appropriate policies and procedures, including those for underwriting 
loan guarantees. 

Furthermore, all of the above-described accomplishments and measures 
have been achieved long in advance of the submission of recommendations 
for and approval of the issuance of any loan guarantees. The Department 
considers itself well-prepared to move forward with the next steps 
necessary to review the 16 loan guarantee applications resulting from 
the August 2006 solicitation as they are received; commit to a full due 
diligence review of those applications prior to recommending that any 
of them receive loan guarantees; and prepare to issue additional 
solicitations to implement the authority provided to the Department by 
Title XVII and current budgetary authority, as set forth in the 
Consolidated Appropriations Act, 2008. In fact, pursuant to the 
authority granted in the Consolidated Appropriations Act, the 
Department submitted an implementation plan for the issuance of three 
additional solicitations on April 11, 2008, and is in the process of 
finalizing the details of each of those solicitations for FY 2008. 

Table: Summary Of Planning Activities For The Loan Guarantee Program 
Office As Of June 2008: 

[See PDF for image] 

[End of table] 

2. Draft Report: The GAO states on page 13 that DOE has not 
sufficiently determined the type and timing of resources it will need 
to review the applications from the 2006 and 2008 solicitations. 
Furthermore, on pages 5, 14, and 15 of the Draft Report, GAO notes that 
DOE has not sufficiently determined the resources it will need or 
completed detailed policies, criteria, and procedures for evaluating 
applications, selecting lenders, monitoring loans and lenders, 
estimating program costs or accounting for the program. 

DOE Response: The Department believes that it has sufficient resources 
and policies in place to effectively manage the projects from the 2006 
solicitation, and to release the FY 2008 solicitations while 
simultaneously addressing the recommendations and findings identified 
in the GAO Draft Report. It is also important to note that the 
Department is adequately staffed and prepared to perform the credit 
underwriting and due diligence processes associated with the 16 
projects invited to submit full applications pursuant to the 2006 
solicitation, as well as to prepare and issue new solicitations this 
year. This staff has utilized its extensive experience in organizing 
the office, initiating all of the requisite policies and procedures 
necessary to execute the program, commencing due diligence reviews of 
the applications received from the 2006 solicitation, and formulating 
and constructing the FY 2008 solicitations. As of May 2008, there are 
11 full time equivalent employees on board which are complemented by 
two detailees and a contractor staff of 5. The Department also 
continues to recruit people with significant relevant experience to 
meet the challenges posed in satisfying the requirements of the planned 
FY 2008 solicitations. 

(See comments 1, 2, 15, and pages 14 through 17 of report.): 

3. Draft Report: The draft Report on Page 5 states "although DOE has 
developed guidance for applicants to follow in submitting applications, 
it has not developed detailed policies and procedures including roles 
and responsibilities and criteria that demonstrate how DOE plans to 
evaluate the applications." 

DOE Response: The above statement from the Draft Report glosses over 
the ongoing effort to develop complete and thorough underwriting 
guidelines. The table on page 3 fills in many of the details. As 
illustrated in the table and as conveyed to the audit team, policy and 
procedures for underwriting the applications from the 2006 solicitation 
are being developed and will be completed by September 2008 with the 
exception of policies and procedures regarding monitoring of loan 
guarantees which will only apply after the Department begins to close 
loan guarantees. These policies and procedures, in order of priority, 
will be completed by December 2008. The FY 2008 solicitations will 
contain the criteria demonstrating how DOE plans to evaluate new 
applications for selection. 

(See comment 1.): 

4. Draft Report: On page 13 of the draft Report, the GAO stated it was 
unclear whether LGP will follow its timelines and milestones in the 
"Concepts of Operations" document or transparently set other timelines 
for implementing key program activities. 

DOE Response: The timelines in the Concepts of Operations will be 
transparent and will provide the basis for implementing key activities 
as well as measuring overall success of the program. The Concepts of 
Operations is a living document and will be updated on a regular basis 
to represent changes in program requirements, in the priority of 
individual activities and the continuing addition of qualified staff to 
support these activities. 

With regard to the planning activities identified in the Concepts of 
Operations document, only two activities have not been initiated: 1) a 
customer relations strategy; and 2) a method for estimating 
administrative costs. The Department intends to commence the design of 
a customer relations strategy in June 2008. Also, before the end of the 
calendar year, the Department will initiate an effort with OMB to 
develop a methodology to estimate and track the LGPO's administrative 
costs. The timelines for completion of these two activities are set out 
in the table on page 3. 

5. Draft Report: On page 21 GAO states "DOE will not gain significant 
experience in each technology because the program's objective is to 
commercialize a limited number of each type of innovative 
technologies." 

DOE Response: The purpose of hiring independent, highly experienced, 
licensed, and certified engineering, marketing, legal, and financial 
consultants to assist with the due diligence and underwriting 
processes, is to ensure that DOE will have the expertise needed to 
support the multi-disciplinary reviews of the different types of 
technologies that will be represented in loan guarantee applications. 
This plan of approach is intended to offset the difficulty in building 
experience in any limited number of technologies. The difficulty, in 
turn, arises from the fact that the Department's mandated mission is to 
periodically assist in the commercial development of new and innovative 
technologies rather than to settle on a limited set of established 
technologies. As new and innovative technologies become commercial 
successes as a result of having received loan guarantees, the 
Department is required under Title XVII to seek out still other newer 
or more innovative technologies. 

(See comment 3.): 

6. Draft Report: On Page 21 GAO states "However, it has not yet 
gathered and analyzed the necessary data on, for example, existing 
capacity or current emission levels for categories of LGP project 
technologies." 

DOE Response: Technical selection criteria, including metrics for 
capacity and emission levels, will be determined on a solicitation-
specific basis. 

(See comments 1 and 4.): 

7. Draft Report: The Draft Report states at pages 5, 18, 19, and 21 
that "risks inherent to the LGP will make it difficult for DOE to 
estimate subsidy costs with a reasonable degree of accuracy and implies 
that DOE may be biased toward under- estimating the appropriate credit 
subsidy cost, which could lead to financial losses and may introduce 
biases in the projects that ultimately receive loan guarantees." 

DOE Response: The Draft Report's statements regarding potential mis-
estimates or bias in the credit subsidy cost calculation methodology 
are not supported by any demonstrated analysis and are otherwise 
conjectural. Given the fact that the Department has not yet even issued 
a loan guarantee under the Title XVII program and that, by working with 
OMB, the Department is obtaining independent support for the effort to 
derive an objective methodology, GAO's statements are unwarranted. 
[Footnote 27] Moreover, the Draft Report, while emphasizing the risks 
inherent in developing a sound methodology for calculating credit 
subsidy costs, does not adequately credit the fact that, in the absence 
of appropriated funds to cover the cost of guarantees, the Department 
is statutorily obligated under FCRA and EPAct 2005 to develop a method 
of calculating the credit subsidy cost of the loan guarantees that it 
plans to issue. Insofar as portions of the draft Report might create 
the impression that the Department could choose not to develop a credit 
subsidy cost calculation methodology or not even to collect the credit 
subsidy cost, that impression also is not factually accurate. 

(See comment 5.): 

(See comment 6.): 

In particular, each applicant will be required to undergo a detailed 
analysis and evaluation by several entities external to the Department, 
including: 

* An initial credit assessment developed by a recognized, independent 
credit rating agency as part of their initial application submission. 

* A full credit rating, an exhaustive investigation and report, 
developed by a rating agency prior to closing on a loan guarantee. 

* Two independent engineering studies which, as described in Appendix 
A, supra, are performed by separate engineering firms. 

* Multiple marketing, appraisal, legal, and other financial reviews 
performed by and obtained from private consultants and attorneys. 

8. Draft Report: The Draft Report, at page 23, states that the 
Congressional Budget Office (CBO) "evaluated the cost of the LGP and 
estimated that DOE would charge companies, on average, at least 1 
percent lower than the likely costs of the guarantees." In footnote 23, 
the Draft Report cites to Congressional Budget Office Cost Estimate: 
S.1321 Energy Savings Act of 2007, June 11, 2007. 

DOE Response: Neither the Draft Report nor the source document from the 
CBO sets forth reasons adequate to support the conclusion that DOE is 
likely to undercharge companies by an average factor of 1 percent of 
the cost of the guarantees. 

(See comment 8.): 

9. Draft Report: On page 19, GAO states "while DOE has prepared a 
schedule of fees to be charged for the first solicitation, it could not 
provide support for how it calculated the fees." 

DOE Response: The current fee structure was developed following 
consultation between Department personnel and officials from the U.S. 
Department of Treasury with experience in reviewing fees related to 
similar governmental programs. In the absence of prior agency 
experience, this was a reasonable method of complying with Title XVII's 
requirement that fees be used to cover related agency administrative 
expenses. 10. Draft Report: On page 21, the Draft Report states "DOE's 
metric to assess the effectiveness of financing decisions — containing 
the loss rate to 5 percent — may not be realistic; it is far lower than 
the estimated loss rate of over 25 percent that we calculated using the 
assumptions included in the fiscal year 2009 president's budget." 

DOE Response: The Department submits that the Draft Report is erroneous 
in its reliance on and use of the 25 percent figure as a metric for 
assessing effectiveness of financing decisions. The 25 percent figure 
came from the Appendix to the FY 2009 President's Budget. But, on page 
408, the Budget document clearly states that the 25 percent figure in 
not intended to be used except as a "placeholder" 

(See comment 9.): 

Because DOE has not yet evaluated the potential subsidy costs for any 
projects that might be eligible for Title XVII loan guarantees, the 
fiscal year 2009 budget reflects placeholder estimates for borrower 
paid loan guarantee subsidy costs, based on an illustrative portfolio. 
These estimates are not related to any specific project proposals 
(emphasis added). 

Because the 25 percent figure was thus intended only to be a 
"placeholder" until additional work was performed, there is no factual 
basis for the Draft Report's reliance on that figure as a "realistic" 
metric for the likely loss rate on guaranteed loans. 

11. Draft Report: On page 22, the Draft Report states "Under FCRA, DOE 
is required to update, or reestimate, the subsidy costs of the LGP to 
reflect actual loan performance and changes in expected future loan 
performance. Shortfalls identified in annual reestimates are 
automatically funded by the federal government under the terms of the 
FCRA and are not subject to congressional scrutiny during the annual 
appropriations process." 

DOE Response: This discussion inaccurately characterizes the operation 
of FCRA. Once a loan guarantee is issued, FCRA provides for both `re-
estimates' and `modifications'. In addition, in certain circumstances, 
a new guarantee may be issued. The Draft Report only discusses one of 
three possible scenarios and thereby incorrectly assumes that any and 
all changes in loan guarantees will be re-estimates and the re- 
estimates can only be higher. 

(See comment 10.): 

- Re-estimates of subsidy costs are based largely on changes in 
technical assumptions. As noted in OMB Circular A-11, re-estimates can 
account for a change in the projection of future cash flows. For a re-
estimate that increases the budget subsidy cost, permanent indefinite 
budget authority is available to cover this budgetary accounting 
transaction. For a re-estimate that decreases the budget subsidy cost, 
the savings can be credited back to the program or to a negative 
subsidy receipt account. In this circumstance, DOE (and the taxpayers) 
would receive the benefit of the savings, since DOE currently has no 
provision to refund the savings to the project. 

- By comparison, a modification involves a change in the credit subsidy 
estimate due to a changed action that was not assumed in the original 
baseline estimate. According to Circular No. A-11, examples of actions 
that would trigger modifications would include forbearance, interest 
rate reductions, extensions of maturity and prepayments. For a 
modification or a new loan guarantee agreement, permanent indefinite 
budget authority is not available, and the increased cost must be paid 
by appropriations or an additional payment from the project. 

- Finally, any change that would require an increase in the loan 
guarantee amount, such as a change to due to cost growth above the 
level of contingency assumed in the original loan guarantee agreement, 
would require either a modification to the loan guarantee agreement or 
issuance of a new guarantee in the amount of the additional coverage. 

12. Draft Report: On page 23, the Draft Report states "To the extent 
that DOE underestimates t