Sawnee EMC has prevailed in a bid protest to serve a new education building at Gwinnett Technical College. After Sawnee EMC protested Georgia Power’s offer of ½ cent per kWh—and the state’s acceptance of that offer—Georgia Power withdrew its bid, leaving Sawnee as the winning bidder. Sawnee EMC’s success shows that Georgia’s EMCs must be vigilant in protecting their rights when participating in government solicitations and be prepared to move quickly if the facts support a protest.

Background

In July 2014, the Georgia Department of Administrative Services (DOAS) issued an electronic Request for Quotes (eRFQ) seeking proposals for electric service for a new building at Gwinnett Technical College. The contract award, per the eRFQ, was to be made to the lowest, responsive and responsible supplier. Sawnee EMC and Georgia Power submitted bids.

On August 8, 2014, DOAS published a notice stating its intent to award the contract to Georgia Power on the grounds that Georgia Power was the “low bidder meeting specifications.” Specifically, Georgia Power offered a “TOU-SC-6 Flat Price” of $0.005 per kWh for the first 12 months that purportedly included all tariff fees, with a one-year price of $6,801.59. Sawnee EMC, on the other hand, offered an average price of $0.0550 per kWh, with a one-year price of $74,444.

Sawnee EMC’s Protest

After the notice was issued, Sawnee EMC had just ten days to file a bid protest under Section 6.5.4 of the Georgia Procurement Manual. Sawnee EMC did so, pointing out that Georgia Power’s cost worksheet did not accurately reflect the true costs of Georgia Power’s bid. Sawnee EMC stated:

Georgia Power states that it would serve the Building during the first year under . . . TOU-SC-6. TOU-SC-6 expressly provides that “[t]he minimummonthly bill during the Initial Period is $581.00 Basic Service Charge plusEnvironmental Compliance Cost Recovery plus Nuclear Construction Cost Recovery plus appropriate Demand Side Management Schedule plusMunicipal Franchise Fee.” (emphasis added). But Georgia Power’s cost worksheet does not include any of these tariff-based charges, which are to be computed based on kWh usage and/or revenues. In fact, for eight of the twelve months, the total is less than $581.00. Additionally, Georgia Power’s cost worksheet does not include any amount for fuel cost recovery. . . . Georgia Power’s proposed price of $0.005 per kWh in no way reflects the additional costs that will be added when the Fuel Cost Recovery rate – which is over $0.03 per kWh – is properly applied.

Sawnee EMC also pointed out that Georgia Power intended to switch the building to its School Load Management rate after twelve months, at which time the price per kWh in all likelihood would increase substantially. This would defeat the purpose of this solicitation, which was to determine which utility would furnish electricity to the state at the least cost.

Georgia Power Withdraws Its Bid

Three days after Sawnee filed its protest, Georgia Power informed the state that a “calculation error” had been made in Georgia Power’s bid and that the cost as stated was lower than required under its applicable rate schedule. Georgia Power asked that its bid not be considered, which the state accepted. Sawnee EMC was then chosen as the successful bidder.

Conclusion

This case demonstrates that bid protests in governmental solicitations can be successful, but disappointed bidders must move quickly to obtain a copy of the winning bid, evaluate grounds for a possible protest and, if warranted, file a bid protest within the applicable deadline, which may be only a matter of days.