20020212Reconsideration Order No 28950.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF JAY HULET’S COMPLAINT REGARDING IDAHO POWER COMPANY’S IRRIGATION BUY-BACK PROGRAM. )
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CASE NO. IPC-E-01-25

ORDER NO.  28950

On June 19, 2001, Jay Hulet filed a formal complaint requesting that the Commission order Idaho Power Company to accept his farm near Oreana into the Company’s Irrigation Buy-Back Program, Case No. IPC-E-01-3. In Order No. 28860, the Commission dismissed his complaint against the utility. On October 11, 2001, Mr. Hulet filed a timely Petition for Reconsideration asking the Commission to reconsider his complaint and conduct an evidentiary hearing. The Commission granted the Petition and an evidentiary hearing was held January 15, 2002. Having fully reviewed the testimony and exhibits introduced at the evidentiary hearing, the Commission concludes that Mr. Hulet’s formal complaint should be dismissed.
BACKGROUND
A. The Formal Complaint
The background and procedural history of this case is contained in Order No. 28860. Mr. Hulet owns two farms in Owyhee County, one near Murphy and the other near Oreana. In 2001, Idaho Power began exploring various strategies of increasing its supply of power and reducing customer usage in Idaho. To reduce customer demand, the Company initiated an Irrigation Buy-Back Program. Under the Program the Company would pay its largest irrigation customers to reduce their electrical consumption by a minimum of 100,000 kWh during the 2001 growing season. See Case No. IPC-E-01-3. Idaho Power solicited bids from approximately 1,700 irrigation customers, including Mr. Hulet. Bids were to be submitted no later than February 28, 2001. Idaho Power did not allow Mr. Hulet to participate in this Program because he did not submit a bid. Mr. Hulet subsequently filed an informal complaint with the Commission Staff pursuant to Commission Rules 21-24. IDAPA 31.01.01.021-024. Attempts to resolve the dispute informally were not successful. Consequently, Mr. Hulet filed a formal complaint against Idaho Power on June 19, 2001.
In Count I of his Complaint, Mr. Hulet alleged that Idaho Power representatives on several occasions falsely represented to him that he would not be eligible to submit a bid to participate in the Buy-Back Program because of unpaid power bills for the two farms. As a result of this alleged misinformation, Mr. Hulet asserted that he was forced to enter into an agreement to his detriment that transferred responsibility for the meters on his Murphy farm to his son, Blaine, so that Blaine could submit a bid. Furthermore, Mr. Hulet contended that because of this false information, he did not submit a bid for his Oreana farm and as a result has suffered serious financial harm. As stated in his Complaint, Mr. Hulet requested that his Oreana farm be entered into the Irrigation Buy-Back Program.
B. The Commission’s Initial Decision in Order No. 28860
After Mr. Hulet filed his formal complaint, the Commission ordered Idaho Power to file a response within 21 days. On August 14, 2001, Idaho Power filed a timely response to the Complaint. The Company alleged that Mr. Hulet did not submit a bid before the deadline of 5:00 p.m. (MST) on February 28, 2001. The Company also asserted that Mr. Hulet was in arrears for electrical service by approximately $526,000. Thus, even if he had submitted a timely bid, which he did not, the Company would not have accepted it until the arrearages were paid.
After considering the written record and there being no request for a hearing, the Commission issued Order No. 28860 on September 28, 2001 dismissing both counts of Mr. Hulet’s Complaint. The Commission made the following finds in dismissing Count I:
Pursuant to Idaho Code §§ 61-501 and 61-612 the Commission has jurisdiction to resolve the Complaint brought against Idaho Power by Mr. Hulet. This Complaint arises from the Company’s Irrigation Buy-Back Program reviewed and approved by the Commission. As this Program has proceeded through the 2001 growing season the Commission has resolved several complaints and issues that have arisen from it. Thus, it must resolve the instant Complaint. . . .
In its Application Idaho Power stated that it intended to make this Program available to those irrigation customers taking service under Schedule 24 who committed to reducing their electric consumption by a minimum of 100,000 kWh during the 2001 growing season. Application at 3 [Case No. IPC-E-01-3]. The Company estimated that approximately 1,700 customers historically consumed energy amounts that would qualify them for participation. Mr. Hulet’s farms were included among this number as it is undisputed that he received the RFP soliciting a bid from him on February 17, 2001. Complaint at 1. The RFP as approved by Commission Order No. 28699 . . . required that all bids be submitted to Idaho Power no later than 5:00 p.m. (MST) Wednesday, February 28, 2001. RFP at 3-4, § 2.4 [Hulet’s Exhibit No. 1]. The record before the Commission clearly demonstrates Mr. Hulet failed to submit a timely bid into Idaho Power’s Irrigation Buy-Back Program. Mr. Hulet contends that he did not submit a bid because the Company provided him with false information.
Several facts are undisputed. Mr. Hulet received the RFP information and knew that February 28, 2001 was the cutoff date for bids to be submitted to Idaho Power. Hulet did not submit a bid. The Commission has consistently denied previous requests to submit late bids or be retroactively included into this Program finding that to do so would violate the anti-discrimination provisions of Idaho Code § 61-315. See Order No. 28699 at 20. The Commission also found that the various individual circumstances presented in these previous requests for participation without submitting a bid or with a late bid did not justify the Commission requiring Idaho Power to accept their bids. Id. The Commission must decide Mr. Hulet’s Complaint similarly. To find for Mr. Hulet would violate the anti-discrimination provisions of Idaho Code § 61-315. The Program required a bid submitted on or before February 28, 2001 at 5 p.m. MST. This requirement will not be waived regardless of any misunderstandings or misinformation that may have existed. To do so would be to grant Mr. Hulet treatment that has previously been denied to others similarly situated.
Order No. 28860 at pp. 5-6.
C. Petition for Reconsideration
Mr. Hulet timely filed his Petition for Reconsideration on October 11, 2001. Idaho Code § 61-626(1); IDAPA 31.01.01.331.01. In his Petition Hulet argues that the Commission erroneously determined that requiring Idaho Power to accept his Oreana farm into the Program would violate the anti-discrimination provisions of Idaho Code § 61-315. Specifically, Hulet contends that the Commission’s finding is unjustified because his case is distinguishable from those who did submit late bids but had them denied. Hulet alleges that unlike those cases, Idaho Power provided him with false information that induced him to not submit a bid. As a result, Hulet contends that Idaho Power discriminated against him by providing false information to him. Based on these arguments, Hulet contends that the Commission must withdraw Order No. 28860 and consider substantively whether Idaho Power must accept his Oreana farm into its Program.
Mr. Hulet also alleged that a legitimate, substantial question of fact exists because the parties disagree on what representations were made to him regarding his eligibility to submit a bid into the Program. Hulet insisted this question of fact cannot be resolved without a hearing.
Idaho Power filed a timely response to Mr. Hulet’s Petition for Reconsideration on October 18, 2001. IDAPA 31.01.01.331.02 and .05. The Company argued that Hulet’s petition does not identify with any degree of specificity how the Commission’s determination of the facts and its application of the law to those facts described in Order No. 28860 are “unreasonable, unlawful, erroneous and not in conformity with the law.” Furthermore, the Company stated that as the moving party Hulet must show the nature and quantity of the evidence or argument he will offer if reconsideration is granted rather than merely alleging that there is a dispute about the facts. The Company states that merely because he has a different view of the facts does not entitle him to the granting of his petition or an evidentiary hearing.
In Order No. 28892 issued November 8, 2001 the Commission granted Mr. Hulet’s Petition for Reconsideration. A prehearing conference was scheduled and conducted. Following the conference, a discovery and hearing schedule was set. Order No. 28912.
THE EVIDENTIARY HEARING ON RECONSIDERATION
At the hearing the Commission heard testimony and received exhibits relevant to the circumstances surrounding Mr. Hulet’s failure to submit a bid necessary to participate in the Irrigation Buy-Back Program by the February 28, 2001 deadline. The substance of the testimony and pertinent exhibits are outlined below.
1. Jay Hulet and Mike Ihli
Mr. Hulet testified that on February 17, 2001 he received a Request for Proposals (“RFP”), an “Offer Form Worksheet,” a bid form, and a cover letter from Idaho Power regarding its Irrigation Buy-Back Program. Direct Testimony of Jay Hulet, Tr. at p. 19. Hulet testified that on February 21, 2001, Mike Liechty, employed by Idaho Power as an agricultural representative, contacted him. Id. at p. 21. Hulet testified that Liechty told him that “I would be unable to submit a bid because of my outstanding past due accounts with Idaho Power. [Liechty] also explained to me that I would need to come up with a deposit of approximately $180,000 to participate in the program.” Id. Hulet then testified that to his knowledge he was unaware of any Program requirement that mandated that his power bills had to be current in order to submit a bid into the Program. Id. at p. 22. Rather, Hulet believed that Section 4.2 of the RFP would allow him to deduct any past due balance he owed the Company from any payment he received through participation in the Program. Id. at pp. 22-23. In Section 4 of the RFP entitled “PAYMENT PROVISIONS,” sub-section 4.2 states:
The basis for the payment to Bidders will be the difference between the annual Base Consumption Amount and the annual Actual Energy Consumption Amount. Idaho Power will pay Bidder monthly for the portion of the Offer Energy Reduction actually provided during that month. For each month in which the Bidder actually reduces its energy consumption from the monthly Base Energy Consumption Amount by at least 95% of the OER for the equivalent calendar month, Idaho Power will multiply the reduction amount by the accepted offer price and pay Bidder 75% of that amount. The remaining 25% balance will be retained by Idaho Power and paid to Bidder prior to November 30, 2001, after confirmation that the Bidder has delivered the full Offer Energy Reduction and has otherwise fully performed the Agreement between Idaho Power and the Bidder. Idaho Power will deduct from any payment to Bidder any balance owing to Idaho Power which is in arrears.

RFP, § 4.2 (emphasis added).
When he requested clarification about this provision, Hulet testified that Liechty told him that this provision did not apply to past due power bills. Hulet’s understanding of Liechty’s representation was “that [he] could not use funds from the Irrigation Power Buy Back Program to pay my past due power accounts.” Id. at p. 23.
Hulet also testified that on February 22 he attended the Idaho Power workshop in Nampa for the Irrigation Buy-Back Program, at which time Liechty represented to him that he could not submit a bid unless his unpaid power bills were paid. Id. at p. 25. Hulet alleges that Liechty again made this representation to him on February 23, 26 and 27, 2001. Id. at pp. 27-29. Finally, Hulet claimed that as a direct result of the representations of Mike Liechty, he did not submit a bid into the Program for his Oreana farm. Id. at pp. 31-32.
On cross examination, Hulet admitted that he was in arrears to Idaho Power and, consequently, his irrigation pumps were not turned on for the 2001 irrigation season. Id. at p. 37. Hulet also acknowledged that he had never received anything in writing from Idaho Power that specifically stated that he could not submit a bid into the Program. Id. at p. 41. Hulet affirmed that he believed that the Idaho Power information about the Program allowed him to submit a bid into the Program even though he was in arrears. Id. at p. 42. Mike Ihli, who works for Mr. Hulet as an Assistant Manager for Hulet Farm Management Company, provided testimony substantially identical to that of Mr. Hulet. See Direct Testimony of Mike Ihli, Tr. at pp. 46-62.
2. Maggie Brilz
Maggie Brilz is employed by Idaho Power as its Pricing Director. She explained that the purpose of the Company’s Irrigation Buy-Back Program was to solicit from large irrigation customers voluntary load reductions in energy consumption during the 2001 growing season in exchange for compensation from the Company. Direct Testimony of Maggie Brilz, Tr. at p. 67. Ms. Brilz testified that the Company did not accept any bids from irrigation customers that were submitted subsequent to February 28, 2001. Id. at p. 77. Section 2.4 of the RFP states that:
All Offer Forms must be received by Idaho Power’s RFP Contact no later than 5:00 p.m. (MST) on Wednesday, February 28, 2001. Offer Forms must be submitted by means of confirmed delivery mail, confirmed delivery fax, overnight courier or hand delivery at Idaho Power’s Corporate Headquarters at 1221 West Idaho Street, Boise, Idaho. Late offers will be rejected.

RFP, § 2.4 (emphasis added).
Ms. Brilz said that the Company received nearly 500 timely bids for the Program. Id. at p. 87. She testified that approximately 40 of these timely bids came from irrigation customers who had past due account balances with the Company. Id. at p. 88. These customers were required to pay the outstanding bills in full plus make a deposit for the current irrigation year within a reasonable time prior to having their offers accepted by Idaho Power. Id. at pp. 69, 70-72, 88. She claimed that all customers with outstanding balances were treated the same, including Mr. Hulet. Id. at p. 72. She testified that of these 40 customers with outstanding balances, only four failed to make the payments and thus had their bids rejected. Id. at pp. 72-74.
Brilz asserted no requirements were placed on Jay Hulet regarding his past due balance that differed from any requirements placed on other customers. Id. at p. 74. She said that the terms of the Program did not prevent an irrigation customer with electric bill arrearages from submitting an offer in the Program. Id. She also took exception to Mr. Hulet’s interpretation of provision 4.2 of the RFP. She argued that Section 4.2 only applied to customers whose offers were accepted and who met the criteria for having a payment made to them by Idaho Power for energy reductions provided. Id. at p. 77. She opined that this provision referred to withholding buy-back payments for past due balances generated by a Program participant during the 2001 growing season, not past due balances generated for previous irrigation seasons. Id.
3. Mike Liechty
Mike Liechty is employed as an agricultural representative by Idaho Power. He testified that he worked directly with Jay Hulet on numerous occasions during the past eight years. Direct Testimony of Mike Liechty, Tr. at p. 97. In regards to this Program, Liechty testified that he assisted with the public presentations of the Program to irrigation customers at the Nampa Convention Center. Id. at pp. 98-99. Liechty also stated that he told Hulet and Mike Ihli that all meters included in the bid would have to be “on” before a bid could be accepted. In Hulet’s situation, this meant bringing the affected accounts current as well as paying any required deposits. Id. at p. 99. Liechty testified that he made this representation to Hulet and Ihli several times. Id. at p. 100. Liechty stated that at no time did he advise Jay Hulet that he could not submit a bid into the Program because his irrigation accounts were in arrears. Id. at p. 105. Liechty testified that he provided Hulet with the same information about the Irrigation Buy-Back Program as he provided to all other irrigation customers who he contacted in the Company’s Canyon Region and the Western Region. Id. at p. 106. He noted that some irrigators with arrearages did submit bids before the February 28, 2001 deadline and were accepted by the Company after bringing their accounts current. Id. at pp. 105-106.
4. George Grant
On rebuttal, Mr. Hulet presented the testimony of George Grant, a farmer and irrigator in Owyhee County. Grant testified that he farms property in Owyhee County through a lease-purchase agreement with Jay Hulet. Id. at p. 126. Grant said that he submitted a timely bid into the Irrigation Buy-Back Program for his Owhyee County operation despite the fact that his operation was in arrears on his power bills to Idaho Power. Id. at pp. 128-29. He understood he could submit a bid because he thought he could deduct the payments he received to offset his arrearages. Id. at p. 129. However, Grant testified that he became concerned that this might not be true and contacted Maggie Brilz at Idaho Power to make sure. Id. at pp. 129-30. After learning that he could not offset his arrearages against payments, Grant testified that he paid the arrearage and was then accepted into the Program. Id. at p. 130.
COMMISSION FINDINGS AND DISCUSSION
After reviewing the evidentiary record in this case, the Commission finds there is substantial and competent evidence that Mr. Hulet was reasonably barred from participating in the Irrigation Buy-Back Program. It is undisputed that Mr. Hulet did not submit a bid to Idaho Power by the February 28, 2001 deadline. He asserted two reasons to excuse his failure to submit a bid by the deadline. First, he maintained that Section 4.2 of the Request for Proposals (RFP) lead him to believe that he could deduct past due balances owed to Idaho Power from the payments he would receive by participating in the Irrigation Buy-Back Program. Second, he maintained that the Company’s agricultural representative, Mike Liechty, represented that Mr. Hulet could not submit a bid until his unpaid power bills were paid in full. Mr. Hulet claimed that this false representation induced him to not submit a timely bid.
We first turn to the allegation concerning the RFP. As subsequently approved by the Commission, the RFP and Order No. 28699 required that all bids to participate in the buy-back program be submitted to Idaho Power no later than 5:00 p.m. (MST) on February 28, 2001. In other words, a submission of a timely bid was a condition precedent to participation in the program. When Mr. Hulet asked Mr. Liechty about this provision, Hulet testified that Liechty told him that Section 4.2 did not apply to past due power bills but only to bills incurred during the 2001 irrigation season. Tr. at p. 23. By his own admission Mr. Hulet was apprised before the bid deadline that Section 4.2 was not applicable to his arrearage situation. His employee, Mike Ihli, was also apprised of this. Id. at pp. 52-53. Consequently, we find that Mr. Hulet’s argument regarding Section 4.2 is not persuasive.
We next turn to Mr. Hulet’s allegations that Mr. Liechty told him on at least four occasions that Mr. Hulet could not submit a bid unless his unpaid power bills were paid. Tr. at pp. 25, 27-29. For his part, Mr. Liechty denied the allegation. He testified that he advised Mr. Hulet and Mr. Ihli the past arrearages would have to be paid before a bid could be accepted. In other words, he testified that he did not say a bid could not be submitted – simply that it would not be accepted until such arrearages were satisfied. Mr. Liechty also noted that some irrigators with arrearages did submit timely bids. In addition, Ms. Brilz stated that approximately 40 irrigators who had arrearages did submit timely bids. Most of these 40 bids were eventually accepted by the Company once the arrearages and necessary deposits were paid.
As the trier of fact, it is the Commission’s obligation to weigh conflicting evidence and determine the credibility of witnesses. Bouten v. Magnuson, 133 Idaho 756, 992 P.2d 751 (1999) reh’g denied (2000). After reviewing the conflicting testimony, we find Mr. Liechty’s testimony more persuasive and credible and accord greater weight to it. In large part we give greater weight to his testimony than to Mr. Hulet’s or Mr. Ihli’s because the circumstances surrounding this matter and the RFP document convince us that a reasonable person would have known that it was essential to submit a bid before the February 28, 2001 deadline in order to participate in this Program regardless of their account status. Even Mr. Hulet’s rebuttal witness, George Grant, testified that he submitted a timely bid to participate in the buy-back program despite the fact that he was in arrears to Idaho Power. Grant said he discussed these issues with Mr. Hulet and submitted a bid while Hulet chose not to.
We also note that approximately 40 irrigators who had arrearages owed to the Company for past utility service submitted timely bids to Idaho Power for its Irrigation Buy-Back Program. Of this number, only four had their bids rejected because they could not timely clear their past due account balances or make the required deposits. Consequently, the Commission finds that a reasonable person would not have believed that he or she was prohibited from submitting a bid into the Program because the customer had arrearages owed to Idaho Power.
The Commission has consistently denied previous requests to allow late bids or be retroactively included into this Program. We held that to do so would violate the anti-discrimination provisions of Idaho Code § 61-315. See Order No. 28699 at p. 20. The Commission also found that the various individual circumstances presented in these previous requests did not justify the Commission requiring Idaho Power to accept their bids. Id. In its initial denial the Commission found that it must decide Mr. Hulet’s Complaint similarly. Based upon our record it would be inappropriate to grant Mr. Hulet treatment that has previously been denied to others.
Based on the above, the Commission finds that Mr. Hulet has failed to present sufficient evidence to demonstrate that the Commission should vacate Order No. 28860 as to Count I of his Complaint. Accordingly, his Complaint shall remain dismissed in its entirety.
O R D E R
IT IS HEREBY ORDERED that Jay Hulet’s Complaint in this case shall remain dismissed in its entirety.
THIS IS A FINAL ORDER ON RECONSIDERATION.  Any party aggrieved by this Order or other final or interlocutory Orders previously issued in this Case No. IPC-E-01-25 may appeal to the Supreme Court of Idaho pursuant to the Public Utilities Law and the Idaho Appellate Rules.  See Idaho Code § 61-627.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of February 2002.

PAUL KJELLANDER, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

DENNIS S. HANSEN, COMMISSIONER

ATTEST:

Jean D. Jewell
Commission Secretary

O:IPCE0125_jh5
As a preliminary matter, the Commission notes that Mr. Hulet did not seek reconsideration as to Count II of his original complaint. In Count II he alleged that Idaho Power inappropriately provided information about his accounts to his son. Mr. Hulet claimed that the release of his account information without his consent violated Company policy and also damaged his reputation. Accordingly, the Commission only considers and reviews whether Mr. Hulet is provided sufficient evidence that would grant him the relief he seeks as to Count I.
The RFP “encouraged” all irrigation customers considering submitting an offer to attend a workshop sponsored by Idaho Power. At the workshop, “Company representatives will explain the RFP, the bidding process and answer questions.” RFP at § 2.1. The RFP also provided for liquidated damages in the event that a successful bidder did not offer at least 95% of his contracted amount of energy savings.

The materials Mr. Hulet received from Idaho Power were admitted as Exhibits 1-3.

ORDER NO. 28950 1

Office of the Secretary
Service Date
February 12, 2002