Public Service Co. v. United States

88 Fed. Cl. 250, 2009 U.S. Claims LEXIS 255, 2009 WL 2253224
CourtUnited States Court of Federal Claims
DecidedJuly 22, 2009
DocketNo. 08-501 C
StatusPublished
Cited by5 cases

This text of 88 Fed. Cl. 250 (Public Service Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Public Service Co. v. United States, 88 Fed. Cl. 250, 2009 U.S. Claims LEXIS 255, 2009 WL 2253224 (uscfc 2009).

Opinion

OPINION

BUSH, Judge.

This case is before the court on cross-motions for summary judgment under Rule 56 of the Rules of the United States Court of Federal Claims (RCFC). These motions have been thoroughly briefed, and oral argument was neither requested by the parties nor deemed necessary by the court. The scope of the parties’ briefing has been restricted to a question of contract interpretation, and does not address arguments based on waiver of contract rights by either party. Jt. Mot. to Enter Scheduling Order at 1. For the reasons set forth below, the court grants defendant’s motion and denies plaintiffs motion.

BACKGROUND1

Plaintiff Public Service Company of Oklahoma (PSO) is an electric utility company [252]*252operating in certain parts of Oklahoma. Compl. at 1. The McAlester Army Ammunition Plant (MCAAP) of the United States Army is located in one of PSO’s service areas, and PSO is the exclusive provider of retail electric service in that part of Oklahoma. Pl.’s Mot. at 5 n. 1. MCAAP and PSO entered into Contract No. DAAA31-97-C-0002 (the contract) on June 9, 1997 to “[p]ro-vide electric power and energy to fulfill MCAAP’s electric service requirements.” Compl. Ex. A at 1, 3. The parties dispute the meaning of this contract as it pertains to the amount MCAAP should have paid PSO for a period of time beginning in February 2006.2 Compl. Ex. B at 2. PSO seeks $159,007.94, the amount it asserts it has been underpaid under the contract, and a declaratory judgment as to the correct interpretation of the contract. Id. ¶¶ 54-59.

The contract is not merely a simple agreement whereby MCAAP has agreed to pay PSO for the electricity it consumes. Instead, the contract establishes a relationship between the parties which includes, most importantly, provisions governing the price MCAAP pays for the electricity provided by PSO, provisions governing the price PSO pays MCAAP for federal hydro power MCAAP has purchased from the United States Department of Energy, and a provision that allows MCAAP a “setoff’ against its payment obligation to PSO in the amount of PSO’s payment obligation to MCAAP. See Compl. Ex. A at 24. This dispute focuses almost entirely on the price PSO must pay MCAAP for federal hydro power.

1. Southwestern Power Administration

The setoff mitigating MCAAP’s payment obligations to PSO derives from MCAAP’s relationship with the Southwestern Power Administration (SWPA), part of the United States Department of Energy. “MCAAP ... has access to an electric supply that most customers do not[;] ... MCAAP can buy hydro-generated electricity from SWPA ... [that] is often cheaper than power generated from other sources.” Pl.’s Mot. at 2. The SWPA provides what the contract calls “Federal Energy” to MCAAP through PSO’s transmission services and the contract enables MCAAP to reduce its payment obligation to PSO based on the amount of Federal Energy MCAAP has purchased from SWPA (and which is immediately sold to PSO). Compl. ¶ 20, Ex. A at 24. The amount of the setoff is governed by a formula set forth in the contract, and varies, in relevant part, according to this defined term:

Amount payable in dollars by MCAAP to SWPA for Federal Energy [scheduled for and delivered to MCAAP in accordance with SWPA rate schedule P[-]90A in effect on May 22,1997. (Exhibit E).

Compl. Ex. A at 22 (emphasis in original).

II. The Contract

A. Generally

The contract at issue here did not initiate electric service to MCAAP. Prior to June 1997, the same three entities were involved and the same types of transfer of energy occurred: SWPA sold Federal Energy to MCAAP, and PSO provided electricity [PSO Energy] and transmitted Federal Energy to MCAAP. Pl.’s Mot. at 2-3. The contractual arrangement before 1997 was different, however, because SWPA contracted directly with PSO for its transmission services, and passed through most of the costs of PSO’s transmission services to MCAAP. Pl.’s Mot. at 3; Compl. Ex. A at 74. In 1997, federal law required SWPA to step out of its role as manager of the transmission of power to MCAAP, and thus MCAAP itself entered into a contract with PSO that covered transmission of Federal Energy from SWPA to MCAAP. Pl.’s Mot. at 3; Compl. Ex. A at 74. In addition, PSO and MCAAP continued their contractual relationship as power company and customer. Pl.’s Mot. at 3. These [253]*253relationships were embodied in the contract entered into on June 9, 1997. See Compl. Ex. A.

The contract includes several parts within its ninety-seven pages, but the court’s focus is primarily on these portions of the contract: a summary description, Compl. Ex. A at 3-4; the “General Provisions” section, id. at 5-11; the Electric Service Agreement (governing, among other terms, the price paid to PSO by MCAAP for all electricity consumed by MCAAP), id. at 15-19; the Power Agreement (governing, among other terms, the price paid by PSO to MCAAP for the Federal Energy purchased by MCAAP from SWPA, an important factor in calculating MCAAP’s setoff), id. at 20-28; and, the contract exhibits, id. at 47-97. Although SWPA is not a party to the contract, MCAAP’s separate contract with SWPA for the purpose of purchasing Federal Energy (SWPA-MCAAP contract) is integral to the relationship between PSO and MCAAP. Indeed, one contract summary describes the SWPA-MCAAP contract before turning to any other aspect of the relationship between PSO and MCAAP. This summary description of the contract is reproduced here in its entirety:

WHEREAS, MCALESTER ARMY AMMUNITION PLANT (MCAAP) HAS, OR WILL CONTRACT TO PURCHASE ELECTRIC POWER AND ENERGY FROM SOUTHWESTERN POWER ADMINISTRATION (SWPA), AND
WHEREAS, CONTRACTOR [PSO] SHALL PURCHASE AND RECEIVE ALL THE FEDERAL ENERGY TO WHICH THE GOVERNMENT IS ENTITLED TO RECEIVE PURSUANT TO GOVERNMENT’S CONTRACT WITH SWPA, AND
WHEREAS, MCAAP SHALL PURCHASE ELECTRIC POWER AND ENERGY REQUIREMENTS FROM CONTRACTOR, AND
WHEREAS, MCAAP MAY BE LIMITED IN THE QUANTITY OF SUCH ELECTRIC POWER AND ENERGY AVAILABLE FROM SWPA BECAUSE OF THE GENERATING CAPABILITY AND OPERATING CHARACTERISTICS OF THE RESERVOIR DAM PROJECTS FOR WHICH SWPA HAS BEEN DESIGNATED AS THE MARKETING AGENCY, AND UNDER THE TERMS AND CONDITIONS HEREINAFTER SET FORTH,
NOW, THEREFORE, CONTRACTOR WILL PROVIDE AS FOLLOWS:

Compl. Ex. A at 4.

MCAAP’s forty-page,contract with SWPA is attached to the contract as Exhibit E. Compl. Ex. A at 58-97. The final six pages of Exhibit E are an attachment to the SWPA-MCAAP contract, and are titled:

UNITED STATES DEPARTMENT OF ENERGY SOUTHWESTERN POWER ADMINISTRATION RATE SCHEDULE P-90A[ ]
WHOLESALE RATES FOR HYDRO PEAKING POWER AND SEASONAL PEAKING POWER

Id. at 92-97. The court notes that the contract attached and referenced a copy of SWPA rate schedule P90-A (P90-A), an attachment to the SWPA-MCAAP contract, that did not, within the four corners of the schedule, indicate that it was still in force on June 9, 1997, the date the contract was signed, or even that it was in force on December 31, 1996, the date the SWPA-MCAAP contract was signed. See id. (“This rate schedule has been extended ...

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Cite This Page — Counsel Stack

Bluebook (online)
88 Fed. Cl. 250, 2009 U.S. Claims LEXIS 255, 2009 WL 2253224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-service-co-v-united-states-uscfc-2009.