Companies, PUC at odds over $32 million FairPoint contract for 911 system

Posted Sept. 26, 2012, at 3:28 p.m.

AUGUSTA, Maine — Lawyers for two communications companies Wednesday accused the state’s Public Utilities Commission of violating the law and the terms of its own request for bids when the agency chose FairPoint Communications over them to replace the state’s emergency 911 system with an upgraded, Internet-based system for emergency calls.

The lawyers for Lewiston-based Oxford Networks and Longmont, Colo.-based Intrado made the arguments on the first of three days of hearings scheduled to settle the dispute over the Maine Public Utilities Commission’s decision to pick FairPoint for the $32 million job.

Meanwhile, lawyers for the PUC and FairPoint told a state appeals panel that the companies’ arguments don’t hold water, and that the contract was awarded fairly.

Oxford Networks and Intrado are arguing their second appeal this year against a Maine PUC decision to award FairPoint a contract that charges the company with upgrading the state’s emergency 911 system to a “NextGen 9-1-1” system that allows dispatchers to accept and pinpoint the location of emergency notifications that come by phone, text message, notification services like OnStar and other devices.

The state’s current 911 system can accept only phone calls. The state contract for that system, which is also held by FairPoint, expires in October 2013.

The PUC originally granted the NextGen contract to FairPoint in January. But Oxford and Intrado appealed that decision, and a state appeals panel invalidated it, concluding there were irregularities in the scoring process and violations of Maine bidding law.

The PUC then convened a new review team, rescored the nine existing bids and again awarded FairPoint the contract in June. FairPoint bid $32.4 million for the project while Intrado bid $27.8 million and Oxford bid $24.9 million.

Intrado lawyer James Costello said the second review team shouldn’t have made an award based on proposals that were more than 180 days old, since reviewers had no way of determining whether the information was still reliable.

“It would have been pure speculation and erroneous for the review team to rely on the information in the proposals after the 180-day deadline,” said Costello, a lawyer with the Portland firm Curtis Thaxter. “By rescoring, rather than reissuing the bid, they violated the terms of their own RFP.”

The PUC’s request for proposals required that the vendors submit bids that would be valid for at least 180 days and requested that the vendors notify the PUC if any information changed, said PUC lawyer Ben Smith.

The PUC “never once heard from any bidder that they wanted to withdraw their proposals either before or after [the 180-day deadline] occurred,” Smith said. “It was only after they realized they weren’t the winner did they decide to advance this faulty argument.”

Costello also argued that the PUC gave Intrado, which has 30 years experience in the industry, a lower score than it deserved when rating the company’s experience in the field.

“It’s an expert in this area,” Costello said. “It knows the NextGen 9-1-1 business well and yet it came into this process with one of the lowest scores for experience.”

Oxford Networks lawyer Paul McDonald argued the company’s bid was inappropriately disqualified when a PUC staff member determined Oxford didn’t provide sufficient cost information.

McDonald, an attorney with Bernstein Shur, said it would have been hard not to follow PUC instructions for submitting that information. The PUC asked vendors to plug cost quotes into a pre-programmed spreadsheet, he said.

“The PUC’s claim that Oxford’s cost submission did not meet the requirements is quite simply wrong,” he said. “Oxford’s cost submission certified that Oxford stood ready and continues to stand ready to this day to complete the NextGen 9-1-1 system.”

But Smith said the PUC staff member evaluating the cost proposals found significant errors and omissions in Oxford’s submission.

“She had no other choice but to decide that disqualification was required,” Smith said. “It was not her job to do Oxford’s work for them. It wouldn’t have been proper to call in any particular bidder to revise the proposal.”

FairPoint lawyer William Hewitt conceded that no proposal the PUC received was perfect. But the agency followed the law in scoring the bids, he said.

“There’s been no violation of law here. There wasn’t any irregularity in what the commission did,” said Hewitt, a partner with the law firm Pierce Atwood. “Even if there was some irregularity, there wasn’t any fundamental unfairness that justifies tossing the whole thing out.”

BDN writer Stephen Betts contributed to this report.

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