Amicalola EMC Prevails in Dispute over Chattahoochee Technical College

by Eversheds Sutherland (US) LLP

After a decision in favor of Amicalola EMC under the large-load (900kW) exception of the Georgia Territorial Act, Georgia Power Company has agreed to relinquish the disputed building to Amicalola EMC to serve. 

Factual Background

In the Fall of 2009, the Technical College System of Georgia (“Technical College”) solicited bids to serve a planned building at the Canton Campus of Chattahoochee Technical College. The solicitation did not represent that the building was customer choice or provide any connected load information. Amicalola EMC responded to the solicitation and attached a rate schedule which stated: “Service under this schedule is contingent upon the member meeting each of the following requirements: . . . (3) Member’s load must be at least 900 kW.” Georgia Power also submitted a response to the solicitation. 

In October 2009, the Technical College announced its award of the contract to Georgia Power, but provided no further information about the connected load. The building opened January 2011 to faculty and staff, and classes began in Spring 2011. Later that year, a load count showed the building’s connected load to be under 900 kW. 

Shortly after the load count, Amicalola EMC notified Georgia Power of the results, but Georgia Power refused to turn service of the building over to Amicalola EMC.  Amicalola EMC then filed a petition with the Georgia Public Service Commission.  In response, and before any hearing had taken place, Georgia Power filed a motion for summary disposition, claiming that Amicalola EMC waived its right to serve the new Building, and asserting other defenses. 

Hearing Officer’s Decision

In his decision, the hearing officer noted that Georgia Power, as the party seeking the benefit of the large load statutory exception, had the burden of showing that each of the requirements of the large load exception was met. Georgia Power, however, failed to meet its burden.

Specifically, the hearing officer concluded that Georgia Power had presented no evidence that the building’s connected load was, is, or would be 900 kW or greater. In fact, the only evidence presented on this issue was a load count showing the connected load being less than 900 kW. Also for lack of evidence, the hearing officer rejected Georgia Power’s laches argument (i.e., that Amicalola EMC unreasonably delayed in bringing its claims) and Georgia Power’s argument that it was the lawful supplier because it had extended service in “good faith.”

Additionally, the hearing officer rejected Georgia Power’s claim that Amicalola EMC waived its right to serve the new building. The hearing officer noted that Amicalola EMC actively questioned whether the building’s connected load would be over 900 kW and Amicalola EMC’s offer was contingent upon the requirement that the customer’s load “must be at least 900 kW.” 
Georgia Power also argued that because Amicalola EMC did not file a bid protest under state Department of Administrative Services (“DOAS”) procedures, Amicalola EMC was barred from bringing this claim before the Commission. But the hearing officer noted that state bid protest procedures do not supersede the Territorial Act. (Stated differently, a state agency cannot turn a premises into a customer choice load simply by soliciting bids and relying on its protest procedure.)

The hearing officer further noted that neither the DOAS nor the Technical College had jurisdiction over Territorial Act matters or any expertise in deciding Territorial Act issues. If, as Georgia Power argued, electric suppliers were required to file a protest during the solicitation phase of state agency procurements (before the building in question has been built), this would deprive electric suppliers in state procurements of the opportunity to conduct such load counts. Large load cases would then be decided by state agencies with no expertise in Territorial Act matters, and without the reliability of on-site load counts. 

Georgia Power has elected not to appeal the hearing officer’s order and to turn the building over to Amicalola EMC to serve.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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