Posts tagged "Energy"

A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 12-052-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss.                                                                                             SUPERIOR COURT                                                          CIVIL ACTION 1684CV05562     A.L. PRIME ENERGY CONSULTANT, INC.   vs.   MASSACHUSETTS BAY TRANSPORTATION AUTHORITY     RESERVIATION AND REPORT OF AN INTERLOCUTORY ORDER TO THE APPEALS COURT     This action arises out of a contract between the plaintiff, A.L. Prime Energy Consultant, Inc. (Prime), and the defendant, Massachusetts Bay Transportation Authority (MBTA) for the supply of Ultra Low Sulfur Diesel Fuel (ULSDF) (the Supply Contract), and the unilateral termination of the Supply Contract by the MBTA.  Prime asserts, among other claims, that the MBTA breached the Supply Contract by terminating it before its end date. Factual Background Prime was awarded the Supply Contract on July 1, 2015, after a public bidding process. It was to continue for a period of two years.  The Supply Contract contained a so-called “termination for convenience” provision that states: Termination for Convenience. The Authority [MBTA] may, in its sole discretion, terminate all or any portion of this Agreement or the work required hereunder, at any time for its convenience and/or for any reason by giving written notice to the Contractor [Prime] thirty (30) calendar days prior to the effective date of termination or such other period as is mutually agreed upon in advance by the parties. If the Contractor  is not in default or in breach of any material term or condition of this Agreement, the Contractor shall be paid its reasonable, proper and verifiable costs in accordance with generally accepted government contracting principals as set forth in the Federal Acquisition Regulations, including demobilization and contract closeout costs, and profit on work performed and Accepted up to the time of termination to the extent previous payments made by the Authority to the Contractor have not already done so.  Such payment shall be the Contractor’s sole and exclusive remedy for any Termination for Convenience, and upon such payment by the Authority to the Contractor, the Authority shall have no further obligation to the Contractor. The Authority shall not be responsible for the Contractor’s anticipatory profits or overhead costs attributable to unperformed work.   On July 12, 2016, the MBTA terminated the Supply Contract pursuant to the termination for convenience clause quoted above.  In its complaint, Prime alleges that the sole reason for the MBTA’s exercise of the termination for convenience clause was that it had learned that it could obtain ULSDF at a cheaper price from another vendor.  It contends that an agency’s right to invoke termination for convenience clauses is limited by principles of bad faith and abuse of discretion and, under these principles, a government agency is not permitted to cancel a contract solely to enable it to purchase the same […]

Read more...

Posted by Massachusetts Legal Resources - May 10, 2017 at 5:04 am

Categories: News   Tags: , , , , , , , , , ,

A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 12-052-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss.                                                                                             SUPERIOR COURT                                                          CIVIL ACTION 1684CV05562     A.L. PRIME ENERGY CONSULTANT, INC.   vs.   MASSACHUSETTS BAY TRANSPORTATION AUTHORITY     RESERVIATION AND REPORT OF AN INTERLOCUTORY ORDER TO THE APPEALS COURT     This action arises out of a contract between the plaintiff, A.L. Prime Energy Consultant, Inc. (Prime), and the defendant, Massachusetts Bay Transportation Authority (MBTA) for the supply of Ultra Low Sulfur Diesel Fuel (ULSDF) (the Supply Contract), and the unilateral termination of the Supply Contract by the MBTA.  Prime asserts, among other claims, that the MBTA breached the Supply Contract by terminating it before its end date. Factual Background Prime was awarded the Supply Contract on July 1, 2015, after a public bidding process. It was to continue for a period of two years.  The Supply Contract contained a so-called “termination for convenience” provision that states: Termination for Convenience. The Authority [MBTA] may, in its sole discretion, terminate all or any portion of this Agreement or the work required hereunder, at any time for its convenience and/or for any reason by giving written notice to the Contractor [Prime] thirty (30) calendar days prior to the effective date of termination or such other period as is mutually agreed upon in advance by the parties. If the Contractor  is not in default or in breach of any material term or condition of this Agreement, the Contractor shall be paid its reasonable, proper and verifiable costs in accordance with generally accepted government contracting principals as set forth in the Federal Acquisition Regulations, including demobilization and contract closeout costs, and profit on work performed and Accepted up to the time of termination to the extent previous payments made by the Authority to the Contractor have not already done so.  Such payment shall be the Contractor’s sole and exclusive remedy for any Termination for Convenience, and upon such payment by the Authority to the Contractor, the Authority shall have no further obligation to the Contractor. The Authority shall not be responsible for the Contractor’s anticipatory profits or overhead costs attributable to unperformed work.   On July 12, 2016, the MBTA terminated the Supply Contract pursuant to the termination for convenience clause quoted above.  In its complaint, Prime alleges that the sole reason for the MBTA’s exercise of the termination for convenience clause was that it had learned that it could obtain ULSDF at a cheaper price from another vendor.  It contends that an agency’s right to invoke termination for convenience clauses is limited by principles of bad faith and abuse of discretion and, under these principles, a government agency is not permitted to cancel a contract solely to enable it to purchase the same […]

Read more...

Posted by Massachusetts Legal Resources - May 8, 2017 at 8:52 pm

Categories: News   Tags: , , , , , , , , , ,

A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 12-027-17)

  COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss.SUPERIOR COURT CIVIL ACTION 1677CV01366 A.L. PRIME ENERGY CONSULTANT, INC. vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS In July 2016, defendant Massachusetts Bay Transportation Authority (MBTA) terminated its two-year fuel supply agreement with plaintiff A.L. Prime Energy Consultant, Inc. (Prime). The MBTA explained that thetermination was made pursuant to its exercise of a contractual right that permitted termination for convenience.The MBTA terminated the contract in order to take advantage of cost savings it believed it could achieve by purchasing fuel through the Commonwealth’s existing statewide fuel contract.  Prime alleges that the MBTA abused its discretion when it invoked the termination for convenience provision and that therefore the MBTA is liable for breach of contract and breach of the covenant of good faith and fair dealing.  The matter is now before the Court on the MBTA’s motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6).  For the reasons that follow, the motion is DENIED. BACKGROUND The following facts are drawnfrom the allegationsin Prime’s complaint, which are accepted as true for the purposes of this motion, the exhibits attached to the complaint, and matters of public record appropriate for judicial notice.  SeeSchaer v. Brandeis Univ., 432 Mass. 2   474, 477 (2000); Waterson v. Page, 987 F.2d 1, 3-4 (1stCir. 1993).1 1 At the hearing on the motion, the Court asked the parties to agree on a stipulated statement of facts regarding whether and to what extent the Commonwealth’s statewide fuel contract was in effect during the relevant periodand available to the MBTA. The parties were not able to do so.  Nevertheless, in lieu of the joint statement, the MBTA submitted a Supplemental Statement of Facts in Support of its Motion to Dismiss. The Court accepts some of the facts set outin the statement in this background sectionbecause they are found either in the complaint, its exhibits, public records, or Massachusetts acts and regulations. 2 The ULSD delivery locations for the MBTA arewithin zone 1. 3 The MBTA initially awarded the contract to Sprague Oil but Prime successfully appealed the award.  Because of the delay resulting from the appeal, Prime’s first delivery was made on September 1, 2015.  The MBTA agreed that the two-year contract period originally scheduled to begin on July 1, 2015 would begin on September 1, 2015. On January 15, 2015, the MBTA’s Materials Management Department issued an Invitation for Bids (IFB) for the supply of Ultra Low SulfurDiesel Fuel (ULSD).  The IFB provided that the contract would have a two-year term. A few months later, the Operation Services Division of the Commonwealth’s Executive Office of Administration and Finance (OSD), which is responsible for establishing […]

Read more...

Posted by Massachusetts Legal Resources - March 31, 2017 at 8:34 pm

Categories: News   Tags: , , , , , , , , , ,

City of Brockton v. Energy Facilities Siting Board (No. 1) (and two consolidated cases) (Lawyers Weekly No. 10-131-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11406 CITY OF BROCKTON  vs.  ENERGY FACILITIES SITING BOARD (No. 1) (and two consolidated cases[1]). Suffolk.     March 4, 2014. – July 31, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[2]     Energy Facilities Siting Board.  Public Utilities, Energy company, Electric company.  Electric Company.  Massachusetts Environmental Policy Act.  Administrative Law, Decision, Judicial review, Substantial evidence.  Environment, Air pollution, Environmental impact report.  Municipal Corporations, Electric plant, Water supply.       Civil actions commenced in the Supreme Judicial Court for the county of Suffolk on August 24, August 28, and September 2, 2009.   After consolidation, the case was reported by Spina, J.      Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & Staci Rubin with her) for Frank J. Babbin & others. John L. Holgerson for town of West Bridgwater. Gregor I. McGregor (Nathaniel Stevens with him) for city of Brockton. Sookyoung Shin, Assistant Attorney General, for Energy Facilities Siting Board. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Brockton Power Company LLC. The following submitted briefs for amici curiae: Veronica Eady for Conservation Law Foundation. Rahsaan D. Hall, Matthew Cregor, Sasha N. Kopf, Tyler D. Crosby, & Priya A. Lane for Lawyers’ Committee for Civil Rights and Economic Justice. Wendy B. Jacobs & Aladdine D. Joroff for Hands Across the River Coalition.     BOTSFORD, J.  Brockton Power Company LLC (Brockton Power, or company) filed a petition pursuant to G. L. c. 164, § 69J¼ (§ 69J¼), with the Energy Facilities Siting Board (board) to construct and operate a 350-megawatt combined-cycle energy generating facility (facility) powered by natural gas and ultra-low sulfur distillate (ULSD) on a 13.2-acre lot in the city of Brockton (city).  After extensive hearings, the board approved Brockton Power’s petition, with conditions.  The city, the town of West Bridgewater (town), and a group of residents of the city and the town (residents), all interveners in the proceedings before the board (collectively, interveners), filed appeals in the county court pursuant to G. L. c. 164, § 69P, and G. L. c. 25, § 5.[3]  A single justice reserved and reported the case to the full court.[4]      On appeal the interveners argue[5] that the board (1) failed to adopt and apply the 2002 environmental justice policy that is a binding environmental protection policy of the Commonwealth; (2) improperly relied on the National Ambient Air Quality Standards for […]

Read more...

Posted by Massachusetts Legal Resources - July 31, 2014 at 7:20 pm

Categories: News   Tags: , , , , , , , , , ,

Brockton Power Company LLC v. Energy Facilities Siting Board (Lawyers Weekly No. 10-132-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11405 SJC-11407   BROCKTON POWER COMPANY LLC  vs.  ENERGY FACILITIES SITING BOARD & others.[1] CITY OF BROCKTON  vs.  ENERGY FACILITIES SITING BOARD & another[2] (No. 2). Suffolk.     March 4, 2014. – July 31, 2014.   Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[3]     Energy Facilities Siting Board.  Public Utilities, Electric company, Energy company.  Municipal Corporations, Electric plant, Water supply.  Environment, Air pollution.  Electric Company.  Administrative Law, Decision, Judicial review, Substantial evidence.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 28, 2011.   The case was reported by Spina, J.   Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 26, 2011.   The case was reported by Spina, J.     Gregor I. McGregor (Nathaniel Stevens with him) for city of Brockton. David S. Rosenzweig (Erika J. Hafner & Michael J. Koehler with him) for Brockton Power Company LLC. Sookyoung Shin, Assistant Attorney General, for Energy Facilities Siting Board. Lisa C. Goodheart (Phelps T. Turner, Joshua D. Nadreau, & Staci Rubin with her) for Frank J. Babbin & others. Wendy B. Jacobs & Aladdine D. Joroff, for Massachusetts Rivers Alliance & others, amici curiae, submitted a brief.     BOTSFORD, J.  On August 7, 2009, the Energy Facilities Siting Board (board), acting pursuant to G. L. c. 164, § 69J¼ (§ 69J¼), approved the petition of Brockton Power Company LLC (Brockton Power or company), to build and operate a 350-megawatt combined-cycle energy generating facility (facility or project) powered by natural gas and ultra-low sulfur distillate (ULSD) in the city of Brockton (city).  As approved by the board, the facility would use wastewater from the city’s advanced wastewater reclamation facility (AWRF) for its cooling tower.  In a consolidated appeal by three of the interveners, we affirmed the board’s decision.  See Brockton v. Energy Facilities Siting Bd. (No. 1), ante     (2014) (Brockton [No. 1]), decided today. On April 9, 2010, while the consolidated appeal was pending, Brockton Power submitted a project change filing (PCF) to the board, seeking approval of three changes to its project.  In the PCF, Brockton Power sought to:  (1) change the source of the facility’s cooling tower water from the AWRF to the Brockton municipal water supply (BMWS); (2) eliminate the use of ULSD as an alternative fuel and rely solely on natural gas […]

Read more...

Posted by Massachusetts Legal Resources - July 31, 2014 at 3:45 pm

Categories: News   Tags: , , , , , , , , ,