# Appendix — Georgia Power Co. v. Pataula Electric Membership Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0884%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1992 - **Citation:** 506 U.S. 907 ## Text ee tun oe FILED JUN 26 1999 | USFICE GF THE CLERK No. 92- Iu the Supreme Court of the United States of America October Term, 1992 GEORGIA POWER COMPANY, Petitioner, v. PATAULA ELECTRIC MEMBERSHIP CORPORATION and FLINT ELECTRIC MEMBERSHIP CORPORATION, Respondents. On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit APPENDIX TO PETITION OF GEORGIA POWER COMPANY FOR WRIT OF CERTIORARI TROUTMAN SANDERS Ralph H. Greil 5200 NationsBank Plaza Counsel of Record 600 Peachtree Street, N.E. Robert P. Edwards, Jr. Atlanta, Georgia 30308-2216 Kevin C. Greene (404) 885-3000 Susan P. Wilkerson Erie A. Szweda Counsel for Petitioner Georgia Power Company - APPENDIX TO PETITION FOR WRIT OF CERTIORARI Table of Contents Document Opinion of the United States Court of Appeals for the Eleventh Circuit 951 F.2d 1238 (11th Cir. 1992) Dated January 29, 1992......... Order from the United States Court of Appeals for the Eleventh Cireuit 959 F.2d 974 (11th Cir. 1992) Filed March 31, 1992........... Order from the United States Court of Appeals for the Eleventh Circuit Filed March 31, 1992........... Order from the United States Court of Appeals for the Eleventh Circuit Filed April 10, 1992............ Order from the United States Court of Appeals for the Eleventh Cireuit Filed April 28, 1992............ Order from the United States District Court for the Northern District of Georgia Dated November 20, 1990 Filed November 21, 1990 ....... Appendix Page Nos. la - 13a - lda - 17a - 19a - l4a l6a 18a - 30a Document Order from the United States District Court for the Northern District of Georgia Filed January 15, 1991 ......... Civil Action For Deprivation of Rights, 42 U.S.C. § 1983 (1988) ......... Georgia Territorial Electric Service Act, 0.C.G.A. §$§ 46-3-1, et seq. (Michie 1982 & Supp. 1991)..... Georgia State Purchasing Act, 0.C.G.A. $§ 50-5-50, et seq. (Michie 1990 & Supp. 1991) (selected relevant sections) ..... State of Georgia Vendor Manual (selected relevant sections) ..... Georgia Department of Administrative Services Purchasing and Surplus Property Division Agency Purchasing Manual (selected relevant Opinions of the Attorney General, State of Georgia 1974 74 Op. Att’y Gen. 16 (1974) Dated January 25, 1974......... Appendix Page Nos. 3la - 32a 33a 34a - 60a 6la - 79a 80a - llla 112a - 128a 112a -117a 118a - 120a 121la - 122a 123a - 128a 129a - 134a -ili- Appendix Document Page Nos. Amended Complaint of Flint Electric Membership Corporation Dated September 7, 1990 ....... 135a - 16la Amended Complaint of Pataula Electric Membership Corporation Dated September 7, 1990 ....... 162a - 180a la IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 91-8098 PATAULA ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellant, versus Bobby WHITWORTH, Individually and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, Individually and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, Individually, GEORGIA POWER COMPANY, Defendants-Appellees, FLINT ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellant, VETSUS Bobby WHITWORTH, Individually and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, Individually and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, Individually, GEORGIA POWER COMPANY, Defendants-Appellees. January 29, 1992 2a January 29, 1992 Appeal from the United States District Court for the Northern District of Georgia Before JOHNSON*, and CLARK*, and PECK**, Senior Cireuit Judges. JOHNSON, Senior Cireuit Judge: This case arises on appeal following the district court’s dismissa! of plaintiffs’ complaints for failure to demonstrate a constitutionally protected property inter- est in the award of utility contracts. For the reasons that follow, we reverse the order of dismissal. I. STATEMENT OF THE CASE In April of 1989, Pataula Electric Memberchip Cor- poration (Pataula EMC) and Georgia Power Company (Georgia Power) submitted bids to the Department of Corrections (DOC) for the provision of electric service to a new prison in Calhoun County, Georgia. A consultant for the DOC analyzed the proposals and recommended Pataula EMC on the basis of probable savings in cost. This same consultant assessed bids from Flint Elee- tric Membership Corporation (Flint EMC) and Georgia Power for service to a Macon County prison in 1990. The consultant recommended Flint EMC on the basis of its projected lower costs. Nonetheless, the DOC chose Geor- gia Power to service both of the prisons. * See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. ** Honorable John W. Peck, Senior U.S. Cireuit Judge for the Sixth Circuit, sitting by designation. ceceaninetiienneaelle 3a In July of 1990, the Pataula EMC and Flint EMC (plaintiffs) filed separate suits challenging the DOC’s refusal to award the contracts to the “lowest responsible bidders.” On November 21, 1990, these cases were consol- idated and dismissed for failure to state » claim upon which relief can be granted. See Fed.R.Civ.P. 12(b) (6). The district court held that the plaintiffs could not demonstrate that they were entitled to the service con- tracts, and thus that they had no property interest pro- tected under section 1983 of title 42. This Court reviews de novo the district court’s dis- missal of plaintiffs’ complaints for failure to state a claim. See Thomas v. Evans, 880 F.2d 1235, 1239 (11th Cir.1989). Dismissal of a complaint for failure to state a claim is error “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2da 90 (1974) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Powell v. United States, 945 F..2d.374, 375-76 (11th Cir.1991) ). II. DISCUSSION Plaintiffs argue on appeal that under Georgia law they possess a constitutionally protected property inter- est in the contracts. They also contend that the DOC defendants are not entitled to qualified immunity. A. Property Interest in the Contracts Defendants advance three arguments for plaintiffs’ lack of a property interest in the contracts: (1) Georgia statutes and regulations do not require electric utility contracts to be awarded to the lowest responsible bidder, 4a (2) Georgia law expresses no intent to grant an entitle- ment to the lowest responsible bidder, and (3) applicable statutes and regulations grant procurers discretion suffi- cient to prevent bidders from forming a property interest. 1. Lowest responsible bidder requirement One of the express purposes of Georgia’s State Purchasing Act (Act) is to “ensure openness and accessi- bility by all qualified vendors to the state’s purchasing processes so as to achieve the lowest possible costs to the state through effective competition among such vendors.” Ga. Code Ann. $50-5-50(3) (Michie 1990). The Act designates the Department of Administrative Services (DOAS) as the state agency that must oversee competi- tive bidding for purchases for the state and its agencies. Id. at § 50-5-51(1). The Act requires the DOAS to use competitive bidding to purchase or acquire “all supplies, materials, services other than professional and personal employment services” for use by the state or its agencies. Id. The only exemptions from this competitive bidding requirement are express exemptions for professional and personal employment services, id. at §50-5-51(1), and purchases below a stated dollar amount, id. at § 50-5-69. Defendants contend that section 50-5-51(3) sepa- rately provides the DOAS with the authority to contract for services or to delegate contracting of services includ- ing electric utilities.’ Because this provision does not * Section 50-5-51(3) states that the DOAS shall have the author- ity “[t]o contract for all telephones, telegraph, electric light power, postal, and any and all other contractual purchases and needs of the state government or any of its departments...or in lieu of such contract to authorize any department, institution, or agency to purchase or contract for any or all such services.” 5a include a competitive bidding requirement, defendants argue that electric utility service is impliedly exempt from the bidding requirement stated in_ see- tion 50-5-51(1). Section 50-5-51 (1), however, simply lists all items subject to competitive bidding, whereas sec- tion 50-5-51(3) lists items which the DOAS may contract for directly on behalf of the state or its agencies, or may authorize state agencies to contract for independently.” The Georgia Vendor Manual (Manual), promulgated by the DOAS to interpret and implement the terms and provisions of the State Purchasing Act, provides further support for this construction: “Contracts or open market purchases will in all cases be awarded to the lowest responsible bidder.” Ga. Dept. of Admin. Services, Ga. Vendor Manual, art. VIII, § 3, at 23; see also id. at art. II, §4, p. 5 (all procurements by state agencies under Purchasing Act “will be based on competitive bidding whenever possible.”). These broad bidding requirements encompass electric utility contracts. Defendants argue that the Agency Purchasing Man- ual (APM), which also reviews procedure for state purchases, nonetheless relieves state agencies from using competitive bidding for utility contracts. See Ga. Dept. of Admin. Services, Agency Purchasing Manual (revised * Under defendants’ characterization of the purpose of section 50-5-50(3), competitive bidding requirements would also not appiy to “any and all other contractual purchases and needs.” Such an interpretation would wholly circumvent the competitive bidding in- struction in section 50-5-51(1). Section 50-5-58(a) likewise does not release the state from using the competitive bidding process mandated by section 50-5-51(1). Section 50-5-58(a) merely allows state agencies to purchase directly certain items without specific authorization from the DOAS. See Ga. Code Ann. § 50-5-58(a) (Michie 1990). 6a Oct. 6, 1987). In the APM, utilities are listed as items subject to “audited authority,” thereby permitting an agency procurement officer, instead of the DOAS, to purchase utilities for a specific agency. Jd. at 7, 9, 74. Utilities are among many items marked with a “#” sym- bol, which denotes that “competitive bids are not ex- pected or may be very difficult to obtain due to the nature of the item, purchasing circumstances, market situation or other restrictive conditions.” Jd. at 69. Although the Manual explicitly assigns the competitive bidding require- ment to purchases made according to audited authority, see Ga. Dept. of Admin. Services, Ga. Vendor Manual, art. IV, $3, at 10, defendants contend, and the district court concluded, that the ““#”’ symbol exempts selected items from competitive bidding. This interpretation of the “#” symbol is deeply flawed. The APM simply recognizes the fact that competi- tive bidding may not be possible for the designated items in certain circumstances.° The APM does not attempt to exempt these items from competitive bidding when such bidding is possible. Indeed, it cannot: neither the DOAS nor its commissioner is empowered by any statutory section to determine what items will be exempt from competitive bidding requirements; therefore, neither may promulgate rules or regulations to accomplish this result. See Ga. Code Ann. $§ 50-5-54, 50-5-55 (Michie 1990). Where, as in this case, there is no impediment to competi- ’ For example, competitive bidding for electrical service con- tracts is not a legal possibility except under the narrowly prescribed conditions of the Georgia Territorial Electric Service Act. See Ga. Code Ann. §$§ 46-3-1 to 46-3-15 (Michie 1982 & Supp.1991). In most eases, the electric supplier for the assigned area would be the only supplier statutorily permitted to provide electric service in a particu- lar locality. —pioeceesscienaiaae eee ieee amen 7a tive bidding, the State Purchasing Act and relevant rules mandate competitive bidding. See id. at § 50-5-51 (1); Ga. Dept. of Admin. Services, Ga. Vendor Manual, art. II, § 4, at 5 (competitive bidding required “whenever possible”’); Ga. Dept. of Admin. Services, Agency Purchasing Manual (revised Oct. 6, 1987), at 117, 118 (ageney procurement officer required to obtain competitive prices “whenever possible” for service/maintenance contracts subject to audited authority). 2. Entitlement for lowest responsible bidder Defendants argue that although utility contracts may be subject to competitive bidding, Georgia does not recog- nize that a lowest responsible bidder may have a property interest in the award of a contract.’ We disagree. A disappuinted bidder may have a constitutionally protected property interest in the award of a contract under 42 U.S.C.A. § 1983 (1981) if that interest is ac- knowledged by “existing rules or understandings that stem from an independent source such as state law.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); see also Metric Constructors, Inc. v. Gwinnett County, Ga., 729 F.Supp. 101 (N.D.Ga.1990). The directive contained in the Manual represents a rule or understanding sufficient to create an entitlement: “[e]ontracts or open-market purchases will in all cases be awarded to the lowest responsible bidder.” * Defendants argue that because procurement regulations inure to the benefit of taxpayers, disappointed bidders can have no prop- erty interest under Georgia law. The decisions cited to support this argument, however, have limited only the recovery of lost profits. See, e.g., Amdahl Corp. v. Ga. Dept. of Admin. Services, 260 Ga. 690, 398 S.E.2d 540, 546 (1990) (equitable relief available). neni 8a Ga. Dept. of Admin. Services, Vendor Manual, art. VIII, $3, at 23; see also, e.g., Hilton Constr. Co. v. Rockdale County Bd. of Educ., 245 Ga. 533, 266 S.E.2d 157, 161 (1980) (lowest responsible bidder’s property interest was defined by the competitive bidding procedures promul- gated by the State Board of Education). 3. Discretion of Georgia state procurers Defendants argue that even if Georgia requires a contract to be awarded to the “lowest responsible bid- der,” determining the lowest responsible bidder involves discretion sufficiently bread to preclude a bidder from forming an expectation of an award. Defendants assert that because plaintiffs at most formed a unilateral expec- tation of the award of the contracts, plaintiffs cannot claim an entitlement to them.° The Vendor Manual provided objective standards for the DOC to determine the “lowest responsible bidder”: The lowest responsible bidder is deemed to be that bidder who submits a responsive bid which meets the specifications set out in the Invitation to Bid and which is most advantageous to the State, taking into account price, performance, ° Defendants alternatively argue that a bidder's interest is inherently inchoate and does not arise to the level of an entitlement until an award of a contract is in hand. The discussion in the preceding section, however, demonstrates that state statutes or rules may create an entitlement for the lowest responsible bidder. Defend- ants’ reliance on Cunningham v. Adams, 808 F.2d 815 (11th Cir. 1987), is misplaced. Cunningham simply stands for the proposition that a committee's recommendation of a contractor to the deciding Board did not represent a selection, and thus did not obligate the Board to choose plaintiff. Jd. at 820-21. ee 9a and capacity to perform of the bidder; quality of the merchandise offered; transportation charges; and date of delivery. Ga. Dept. of Admin. Services, Ga. Vendor Manual, art. VIII, § 3, at 23. These objective standards confine discre- tion sufficiently to allow formation of a property interest.® It is sufficienu that the decisionmaker must declare a bidder to be the “lowest responsible bidder” after deter- mining that the bidder, in the decisionmaker’s judgment, meets the necessary prerequisites.’ See Board of Pardons v. Allen, 482 U.S. 369, 373-76, 107 S.Ct. 2415, 2418-19, 96 L.Ed.2d 303 (1987). The fact that the decisionmaker must exercise judgment in applying these standards “is not incompatible with the existence of a [constitutionally protected] interest.” Jd. at 376, 107 S.Ct. at 2419. ® The defendants incorrectly compare the procurers’ discretion in this case to the broader discretion of officials who are not limited by any lowest responsible bidding requirement. See, e.g., Perkins v. Lukens Steel Co., 310 U.S. 118, 126-29, 60 S.Ct. 869, 876-77, 84 L.Ed. 1108 (1940) (government required only to advertise before awarding contracts and then to provide that contractors meet certain labor standards); Sowell’s Meats & Services, Inc. v. McSwain, 788 F.2d 226. 228-29 (4th Cir.1986) (statute requires contracts to be awarded to “responsible contractors” after consideration of several noninclusive factors). "The defendants mistakenly rely on parole board cases to demonstrate that the authority to exercise discretion is inconsistent with the existence of a constitutionally protected interest. These cases analyze a prisoner’s entitlement to a liberty interest pursuant to statutes permitting parole upon a subjective determination by the parole board, but not requiring release after consideration of an objective set of standards. See, e.g., Francis v. Fox, 888 F.2d 1147 (11th Cir.1988); Thomas v. Sellers, 691 F.2d 487 (11th Cir.1982). 10a The degree of discretion enjoyed by the DOC in choosing the lowest responsible bidder falls squarely within the compass of discretion that the Georgia Su- preme Court has found insufficient to preclude bidders from forming an expectation of an award. See Amdahl Corp. v. Depi. of Admin., 260 Ga. 690, 398 S.E.2d 540 (1990); Hilton Constr. Co. v. Rockdale County Bd. of Educ., 245 Ga. 533, 266 S.E.2d 157 (1980). The Georgia _ Supreme Court has held that a rejected low bidder has a property interest even if the procurement agency has “some discretion” regarding the final award. Amdahl Corp., 398 S.E.2d at 545; see also Hilton Const. Co., 266 S.E.2d at 161. Although the relevant guidelines in Amdahl granted less discretion to the procurers than in the instant case, the Amdahl court did not define an upper acceptable limit in discretion. Amdahl, 398 S.E.2d at 545 (DOAS was bound to choose bidder with lowest price- performance formula). In Hilton Construction Co., the Board was vested with greater discretion than in the present case. The Hilton Board was required to choose the “responsible bidder submitting the lowest acceptable bid.” Hilton Constr. Co., 266 S.E.2d at 161. Unlike the DOC in the instant case, the Hilton Board was provided no guidelines either for assessing a “responsible” bidder or for determining an “acceptable bid.” Jd. Defendants counter that the purchasing agent’s au- thority to reject “any and al] bids” allows the agent to reject the lowest responsible bidder, and thus grants the agent very broad discretion. See Ga. Code Ann. § 50-5-67(b) (Michie Supp.1991). Assuming arguendo lla that section 50-5-67(b) is relevant to the instant ease,® the power to reject “any and all bids” did not empower the defendants to act in an arbitrary manner. See Konigsberg v. State Bar, 353 U.S. 252, 273, 77 S.Ct. 722, 733, 1 L.Ed.2d 810 (1957) (state is free to select its own members of legal bar, but state cannot exercise its power in arbitrary or discriminatory manner). At a minimum, then, plaintiffs state a cognizable claim by alleging that defendants abused their discretion by arbitrarily ignoring competitive bidding requirements.® See Metric Construc- tors, Inc., 729 F.Supp. at 102. The DOC defendants’ discretion to choose the lowest responsible bidder thus does not preclude plaintiffs’ claim to a constitutionally protected property interest in the award of utility contracts. B. Qualified Immunity Unavailable The DOC defendants claim qualified immunity. They argue that the complaint must be dismissed because ® Defendants have also argued that section 50-5-67(b), which includes a competitive bidding requirement, has no application to utility contracts because it makes no reference to “services.” Section 50-5-67(b) refers only to “contracts for the purchases of supplies, materials, or equipment.” Ga.Code Ann. §50-5-67(b) (Michie Supp.1991). * Defendants’ reliance on City of Atlanta v. Ashland Warren, Inc., 1982-1 Trade Cas. (CCH) § 64,527, 1981 WL 2187 (N.D.Ga.1981), is misplaced. In this case, the low bidder did not meet the terms of the City’s bid requirements. The court held only that the government, in the absence of mandatory guidelines for choosing contracts, may set the terms for acceptable contracts. The court did not find that the government may choose contractors regardless of the established terms. 12a plaintiffs cannot demonstrate that the DOC violated clearly established statutory or constitutional rights. See Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir.1989). The actions of the DOC in this regard are evaluated under a reasonable person standard. /d. The relevant statutes and rules clearly mandate that procurers award contracts to the lowest responsible bid- der whenever possible. Because the Georgia Supreme Court has long recognized a constitutionally protected property interest in the award of a contract under com- petitive bidding statutes and rules, the DOC officials knew or should have known that they deprived plain- tiffs — as lowest responsible bidders — of a property in- terest by ignoring statutory and regulatory directives. See id. at 1036. The DOC defendants’ claim of qualified immunity must therefore fail. Ill. CONCLUSION For the reasons set forth above, we REVERSE the district court’s order to dismiss for failure to state a claim and REMAND to the district court for further proceedings consistent with this opinion. 13a IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 91-8098 PATAULA ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellant, versus BOBBY WHITWORTH, Individually and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, Individually and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, Individually, GEORGIA POWER COMPANY, Defendants-Appellees. FLINT ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellant, versus . BOBBY WHITWORTH, Individually and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, Individually and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, Individually GEORGIA POWER COMPANY, Defendants-Appellees. PA AI BA MDA 00 « l4a Appeal from the United States District Court of the Northern District of Georgia ON PETITION (S) FOR REHEARING BEFORE: JOHNSON*, CLARK*, and PECK**, Senior Circuit Judges. PER CURIAM: The petition(s) for rehearing filed by the appellee, GEORGIA POWER COMPANY, is denied. — ENTERED FOR THE COURT: /s/_ Frank M. Johnson United States Circuit Judge *See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. ** Honorable John W. Peck, Senior U.S. Cireuit Judge for the Sixth Circuit, sitting by designation. [Filed March 31, 1992] r | l5a IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 91-8098 PATAULA ELECTRIC MEMBERSHIP CORPORATION and FLINT ELECTRIC MEMBERSHIP CORPORATION, Plaintiffs-Appellants, versus BOBBY WHITWORTH, et al., Defendants-A ppellees. On Appeal from the United States District Court for the Northern District of Georgia ON PETITION (S) FOR REHEARING AND SUGGESTION (S) OF REHEARING EN BANC BEFORE: JOHNSON*, CLARK*, and PECK**, Senior Cireuit Judges. PER CURIAM: MW The Petition(s) for Rehearing are DENIED and no member of this panel nor other Judge in regular active service on the Court having requested that the Court be polled on rehearing en bane (Rule 35, Federal Rules of Appellate Procedure; Eleventh Cireuit Rule 35-5), the Suggestion(s) of Rehearing En Bane are DENIED. O) The Petition(s) for Rehearing are DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit l6a Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Cireuit Rule 35-5), the Sugges- tion(s) of Rehearing En Bane are also DENIED. CL) A member of the Court in active service having requested a poll on the reconsideration of this cause en bane, and a majority of the judges in active service not having voted in favor of it, Rehearing En Bane is DENIED. ENTERED FOR THE COURT: /s/ Frank M. Johnson United States Circuit Judge *See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit. ** Honorable John W. Peck, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by designation. [Filed March 31, 1992] 17a IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 91-8098 PATAULA ELECTRIC MEMBERSHIP, Plaintiff-Appellant, versus BOBBY WHITWORTH, Individually and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, Individually and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, Individually, GEORGIA POWER COMPANY, Defendants-Appellees. FLINT ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellant, versus BOBBY WHITWORTH, Individually and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, Individually and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, Individually GEORGIA POWER COMPANY, Defendants-Appellees. On Appeal! from the United States District Court for the Northern District of Georgia a 18a ORDER: Appellees’ joint motion for an extension of time in which to file motion for stay of mandate to and including April 14, 1992, is granted. MIGUEL J. CORTEZ, Clerk United States Court of Appeals for the Eleventh Cireuit /s/ Kembra L. Smith Kembra L. Smith, Deputy Clerk ENTERED FOR THE COURT — BY DIRECTION [Filed April 10, 1992] 19a IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 91-8098 PATAULA ELECTRIC MEMBERSHIP, Plaintiff-Appellant, versus BOBBY WHITWORTH, Individually and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, Individually and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, Individually, GEORGIA POWER COMPANY, Defendants-A ppellees. FLINT ELECTRIC MEMBERSHIP CORPORATION, Plaintiff-Appellant, versus BOBBY WHITWORTH, Individually and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, Individually and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, Individually, GEORGIA POWER COMPANY, Defendants-A ppellees. On Appeal from the United States District Court for the Northern District of Georgia 20a ORDER: () The motion of Appellee, Georgia Power for (XX) stay ( ) recall and stay issuance of the mandate pending petition for writ of certiorari is DENIED. Y) The motion of Appellee, Georgia Power for (XX) stay ( ) of the mandate pending petition for writ of certiorari is GRANTED to and ineluding June 29, 1992, the stay to continue in force until the final disposi- tion of the case by the Supreme Court, provided that within the period mentioned above there shall be filed with the Clerk of this Court the certificate of the Clerk of the Supreme Court that the certiorari petition has been filed. The Clerk shall issue the mandate upon the filing of ' a copy of an order of the Supreme Court denying the writ, or upon expiration of the stay granted herein, unless the above mentioned certificate shall be filed with the Clerk of this Court within that time. C) The motion of , for a further stay of the issuance of the mandate is GRANTED to and includ- ing under the same conditions as set forth in the preceding paragraph. OOIT IS ORDERED that the motion of , for a further stay of the issuance of the mandate is DENIED. /s/_ Frank M. Johnson United States Cireuit Judge [Filed April 28, 1992] 2la IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CIVIL ACTION 1:90-ev-1550-HTW FLINT ELECTRIC MEMBERSHIP CORPORATION, Plaintiffs, versus BOBBY WHITWORTH, individually, and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, individually, and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, individually, and GEORGIA POWER COMPANY, ! Defendants. CIVIL ACTION 1:90-ev-1675-JOF PATAULA ELECTRIC MEMBERSHIP CORPORATION, Plaintiffs, versus BOBBY WHITWORTH, individually and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, individually, and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, individually, and GEORGIA POWER COMPANY, Defendants. 22a ORDER OF COURT These cases are pending on motions to dismiss, motions to consolidate, and motions for a protective order filed by defendants—Georgia Power Company, Bobby Whitworth, and Clyde Stovall. MOTION TO CONSOLIDATE FOR PRETRIAL PROCEEDINGS Defendant Georgia Power Co. has moved for consoli- dation of these cases for pretrial proceedings. The plain- tiffs do not oppose consolidation for pretrial proceedings. Inasmuch as it appears that the litigation at the pretrial level will revolve around similar facts and legal issues, the court considers good cause shown. The motion for consolidation for pretrial proceedings is GRANTED. It is ORDERED that these cases be consolidated up to, but not including, the required filing of pretrial orders. MOTIONS TO DISMISS These cases concern the rights of disappointed bid- ders to obtain judicial relief from a determination by the Georgia Department of Corrections to designate Georgia Power as electrical service provider for prisons to be constructed and operated in Calhoun County and Macon County, Georgia. The plaintiffs allege that the designation of such a supplier is controlled by Georgia’s procurement statutes which require competitive bidding. Each plaintiff con- tends that it was the lowest responsible bidder, and therefore its constitutional and statutory rights have been violated by the arbitrary designation of Georgia Power as 23a electrical service provider. The defendants contend that plaintiffs’ complaints are legally insufficient and move to dismiss. A. Background Facts Plaintiffs Flint Electric Membership Corporation (“Flint EMC”’) and Pataula Electric Membership Corpo- ration (“Pataula EMC”’) are nonprofit electric coopera- tives organized and existing under the Georgia Eiectric Membership Corporation Act. On or about April 10, 1989, Pataula EMC submitted a bid for the provision of electric service to [a] new prison to be constructed in Calhoun County, Georgia. On or about March 1, 1990, Flint EMC submitted a bid to the Department of Corrections for the provision of electrical service to a new prison to be constructed in Macon County, Georgia. Georgia Power Company also submitted bids to provide electric service to the prisons. As a part of its process of evaluating the proposals submitted by the bidders, the Department of Corrections asked consulting Engineers Rosser Fabrap International (“Rosser Fabrap”) to review the proposals from the parties. After reviewing the proposals for the prison in Macon County, Rosser Fabrap recommended Flint EMC because of its lower operating costs and superior service. After reviewing the proposals for the prison in Calhoun County, Rosser Fabrap recommended Pataula EMC be- cause of its lower operating costs and lower lease costs. The plaintiffs allege that, notwithstanding the fact that the plaintiffs were the lowest responsible bidders on the respective projects, defendants Stovall and Whit- worth arbitrarily decided to award the contract for elec- trie service to Georgia Power. Flint EMC alleges that 24a defendants Stovall and Whitworth failed to communicate certain criteria subsequently relied upon by them in making the decision to award the contract. Flint EMC further alleges that Stovall and Whitworth informed Flint EMC that at lease [sic] one factor relied upon would not be a consideration in the determination and that Stovall and Whitworth utilized at least one state- ment from Georgia Power that was made improperly and outside the bidding process and that Stovall and Whit- worth disregarded the consultant’s recommendation. Plaintiff Pataula EMC alleges that the defendants Stovall and Whitworth relied on invalid and unsupported assumptions, criteria predesigned to favor Georgia Power, criteria not reasonably related to the provision of electric service and arbitrary considerations in granting Georgia Power the contract for electrical service. In their complaints, plaintiffs seek injunctive relief and damages for the violation of their due process rights. B. Legal Standard For purposes of a motion to dismiss, pursuant to F.R.Civ.P. 12(b) (6), the complaint is construed in the light most favorable to plaintiff and its material allega- tions are taken as true. When a federal court reviews the sufficiency of a complaint, the issue is not whether plain- tiff will ultimately prevail or is likely to prevail but whether the plaintiff is entitled to offer evidence to sup- port the claims. Scheuer v. Rhodes, 416 U.S. 232 (1974). The motion addresses itself solely to the failure of the complaint to state a claim for relief. See, Wright & Miller Federal Practice and Procedure, § 1357. In appraising the sufficiency of plaintiff's complaint, this court follows the settled rule that plaintiff's complaint should not be dis- ee 25a missed for failure to state a claim unless it appears beyond doubt that she can prove no set of facts in support of her claim which would entitle her to relief. Conley v. Gibson, 355 U.S. 41 at 45-56 (1957). C. Discussion A complaint under 42 U.S.C. § 1983 must allege the existence of a liberty or property interest that has been abridged under color of state law without adequate due ' process. See Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972). To establish a property interest, plaintiff must have a legitimate claim of entitlement as determined by reference to state law. Id. at 577; Bishop v. Wood, 426 U.S. 341, 344 (1976). In evaluating plaintiffs’ complaint, the court is guided by the decision of Judge Shoob in Metric Construc- tors, Inc., v. Gwinnett County, 729 F. Supp. 101 (N.D.Ga. 1990), in which he addressed the conflicting authority concerning the rights of a disappointed bidder to obtain judicial relief. Judge Shoob determined that a constitutionally pro- tected property interest exists if acknowledged by appli- cable state law. To state a cause of action, a disappointed bidder must have been entitled to award of the project under the applicable state law. In this latter regard, the appropriate consideration is not whether the successful bidder complied with bidding procedures, but rather, whether the property interest arises from the expectations of the plaintiffs and the entitlement granted by state law. Id. 729 F. Supp. at 102’ (emphasis added). Judge Shoob also 1 Citing, L & H Sanitation, Inc. v. Lake City Sanitation, Inc., 585 F.Supp. 120, 124 (E.D.Ark. 1984), aff’d, 769 F.2d 517 (8th Cir. 26a determined, and the court agrees that, under Georgia law a constitutionally protected property interest may be possessed by a disappointed bidder for a contract with the state. Metric Constructors, 729 F. Supp. at 102. Hilton Construction Co. v. Board of Education, 245 Ga. 533 (1980)? | The fact that a disappointed bidder may possess a protected property interest under Georgia law does not mean that plaintiffs have stated a cause of action in the present cases. Plaintiffs must demonstrate that they were entitled to award of the contract for electric services under the laws that govern the relevant bidding procedures. The defendants contend that plaintiffs have no prop- erty interest protected by due process because the Geor- gia Department of Corrections is not required to utilize the competitive bidding process in the designation of an electrical service supplier. 1985); Teleprompter of Erie, Inc. v. City of Erie, 567 F.Supp. 1277, 1287-88 (W.D.Pa. 1983). * In Hilton, the Georgia Supreme Court held that the low bidder under procedures which required that “the award of the contract will be made to the responsible bidder submitting the lowest acceptable bid” could maintain a cause of action for refusal to award it the contract. SEP SAE tee vO ee Meith Pitts. At oh Py 27a The State Purchasing Act® grants the Department of Administrative Services (‘“‘DOAS’) the authority to purchase supplies, materials, services other than profes- sional and personal employment services, and equipment for state agencies, or to regulate the purchase thereof, under competitive bidding. O0.C.G.A. §50-5-51(1). The State Purchasing Act also provides the DOAS with the authority and duty, To contract for all telephones, telegraph, electric light power, postal, and any and all other con- tractual purchases and needs of the state gov- ernment or any of its departments, institutions, or agencies; or in lieu of such contract to author- ize any department, institution, or agency to purchase or contract for any or all such service. 0.C.G.A. § 50-5-51(3). Sinee this provision does not in- clude a bidding requirement, the parties dispute whether the DOAS is legislatively required to use competitive bidding in contracting for electrical services as is re- quired for goods and services found in 0.C.G.A. § 50-5- 51(1). Pursuant to its authority the DOAS promulgated the Vendor Manual. The Vendor Manual sets forth the pro- eurement regulations of the DOAS under the State Purchasing Act. Under certain circumstances the DOAS is authorized to delegate purchasing authority to any or to all State agencies both for the procurement of certain 3 0.C.G.A. § 50-5-50 through § 55-5-81 (Michie 1986 & Supp. 1990). 28a classes of products and services. Vendor Manual, Art. II, Section 2. Under O.C.G.A. § 50-5-67(b), the relevant state de- partment is to grant the contract for purchases to the lowest bidder meeting the standards set by the depart- ment. See also, Op. Att’y Gen. No. 74-16 (1974). Any and all bids may be rejected. O.C.G.A. § 50-5-67(b). In this ease, the DOAS delegated the authority to contract for electric light power to the Department of Corrections under the provisions for Audited Purchase Authority. Article IV Section III of the Vendor Manual states, The Purchasing and Surplus Property division has delegated to all State Agencies the authority to purchase products classified as perishables or “special items” and has delegated to selected Agencies authority to purchase technical instru- ments. The authority to purchase these particu- lar items is referred to as “Audited Purchase Authority.”’ These classified items are listed in the State Purchasing Manual and are available to all procurement officers upon request. The rules for competitive bidding apply to purchases made according to Audited Purchase Authorsty. ... (emphasis added). The DOAS has also promulgated the Agency Purchasing Manual to, among other things, provide procedures for processing purchases by item under audited agency authority. ... 29a Agency Purchasing Manual, p. 74. The Agency Purchasing Manual ineludes “utilities” with other items for which, competitive bids are not expected or may be very difficult to obtain due to the nature of the item, the purchasing circumstances, the market situa- tion, or other restrictive conditions. Agency Purchasing Manual, p. 69. The parties dispute whether, under the provisions of the Purchasing Act, contracts for electricity were subject to the bidding requirements of the Act. The court finds the statutory provisions ambiguous. The requirement that rules for competitive bidding apply to purchases made according to Audited Purchase Authority seems to imply that competitive bidding was required. However, the pro- visions in the Agency Purchasing Manual state that com- petitive bids on utilities are not expected or may be very difficult to obtain due to its nature, the purchasing cir- cumstances, the market situation, or other restrictive conditions. Although it is undisputed that the DOC solicited bids, reviewed the bids, and sent the bids to an indepen- dent consultant for review and recommendation. The DOC was not mandated by law to seek competitive bids for electric service. The court has reviewed plaintiffs’ complaints and the submissions of the parties and determines that the plain- tiffs have failed to meet their burden of showing that they possess property interests or entitlements granted by state law. Plaintiffs cannot sustain an action under 42 U.S.C.A. § 1983. cai al 30a Accordingly, defendants’ motions to dismiss are GRANTED. The motion for protective order is DENIED as MOOT. SO ORDERED, this 20th day of November, 1990. /s/ Horaee T. Ward HORACE T. WARD UNITED STATES DISTRICT JUDGE {Filed November 21, 1990] 3la IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CIVIL ACTION 1:90-ev-1550-HTW FLINT ELECTRIC MEMBERSHIP CORPORATION, Plaintiffs, versus BOBBY WHITWORTH, individually, and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, individually, and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, individually, and GEORGIA POWER COMPANY, Defendants. CIVIL ACTION 1:90-ev-1675-JOF PATAULA ELECTRIC MEMBERSHIP CORPORATION, Plaintiffs, versus BOBBY WHITWORTH, individually, and in his official capacity as Department of Corrections Commissioner, CLYDE STOVALL, individually, and in his official capacity as Assistant Commissioner of Department of Corrections, DAVID C. EVANS, individually, and GEORGIA POWER COMPANY, Defendants. 32a ORDER OF COURT These cases are pending on plaintiffs’ motion for reconsideration of its most recent order. Upon review, the court determines that its order of November 28, 1990 is a correct statement of the law as to the narrow facts of this ease. Plaintiffs have failed to show a legitimate claim of entitlement under the State Purchasing Act and procure- ment regulations. Therefore, plaintiffs’ motion for recon- sideration is DENIED. SO ORDERED, this 15th day of January, 1991. /s/__Horace T. Ward HORACE T. WARD UNITED STATES DISTRICT JUDGE [Filed January 15, 1991] mt 33a UNITED STATES CODE Title 42 § 1983. Civil action for deprivation of rights Every person who, under color of any statute, ordi- nance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. R.S. § 1979; Pub.L. 96-170, § 1, Dee. 29, 1979, 93 Stat. 1284. 34a OFFICIAL CODE OF GEORGIA ANNOTATED (Michie 1982 & Supp. 1991) Title 46 ARTICLE 1 GENERATION, DISTRIBUTION, ETC., OF ELECTRICITY GENERALLY PaRT 1 ALLOCATION OF TERRITORIAL RIGHTS TO ELECTRIC SUPPLIERS 46-3-1. Short title. This part shall be known as the “Georgia Territorial Electric Service Act.” (Ga. L. 1973, p. 200, § 1.) 46-3-2. Legislative findings and declaration of policy. The public-interest requires, and it is declared to be the policy of the State of Georgia, that, in order (1) to assure the most efficient, economical, and orderly render- ing of retail electric service within the state, (2) to inhibit duplication of the lines of electric suppliers, (3) to foster the extension and location of electric supplier lines in the manner most compatible with the preservation and en- hancement of the state’s physical environment, and (4) to protect and conserve lines lawfully constructed by elec- tric suppliers, it is necessary and appropriate that the state establish and implement a plan whereby every geo- graphic area within the state shall be either assigned to an electric supplier or declared unassigned as to any electric supplier; that, to accomplish such a plan, it is necessary that all electric suppliers within the state be subject to this part; that the commission be delegated power, authority, and jurisdiction with respect to such 35a plan; and that all electric membership corporations and all municipalities which furnish retail electric service be additionally subject to regulation by the commission in the same manner as provided for regulation of electric light and power companies, except as to the fixing of their rates, charges, and service rules and regulations, it being determined by the General Assembly that such electric membership corporations and municipalities, which by their corporate nature are wholly or substantially con- trolled by their consumers, should for regulatory pur- poses be classified differently in certain respects from electric light and power companies. (Ga. L. 1973, p. 200, § 2.) 46-3-3. Definitions. As used in this part, the term: (1) “Assigned area” means an enclosed geo- graphic area assigned to only one electric supplier by the commission or by this part, and inside which the assignee electfic supplier shall have the exclusive right to extend and continue furnishing service to new premises, except as otherwise provided in this part. (2) “Electric membership corporation” means a corporation organized under Article 2 of this chapter. (3) “Electric supplier” means any electric light and power company subject to regulation by the commission, any electric membership corporation furnishing retail service in this state, and any munic- ipality which furnishes such service within this state. 36a (4) “Line” means any conductor for the distri- bution or transmission of electricity other than a conductor operating at a potential of 120,000 volts or more. However, a conductor that initially constitutes a line shall not cease being a line if, after March 29, 1973, it is operating at a potential in excess of 120,000 volts. (5) “Municipality” means: (A) Any geographically defined political subdivision of this state, other than a county, performing or authorized to perform multiple and substantial municipal functions, specifically including either the function of furnishing retail electric service or the function of granting to electric suppliers street franchise rights for use in furnishing retail electric service; (B) Any geographically defined political subdivision, or agency thereof, of this state if at any relevant time it lawfully furnishes retail electric service; and (C) Any political subdivision of any other state which furnishes retail electric service within this state. (6) “Premises” means the building, structure, or facility to which electricity is being or is to be furnished, provided that two or more buildings, struetures, or facilities which are located on one tract or contiguous tracts of land and are utilized by one electric consumer shall together constitute one prem- ises; provided, however, that any such building, structure, or facility shall not, together with any other building, structure, or facility, constitute one 37a premises if the permanent service to it is, separately metered and the charges for such service are calcu- lated independently of charges for service to any other building, structure, or facility; provided, fur- ther, that an outdoor security light, or an outdoor sign requiring less than 2200 watts, shall not consti- tute a premises. (7) “Primary supplier” within a municipality in existence on March 29, 1973, means, either: (A) That electric supplier which, on March 29, 1973, is furnishing service to the majority or to a plurality, whichever is the case, of the retail electric meters then inside the corporate limits of the municipality; or (B) That electric supplier to which the commission has reassigned a geographic area, previously assigned to another electric supplier, located within such municipality as its limits existed on March 29, 1973. (8) “Secondary supplier” within a municipality in existence on March 29, 1973, means any electric supplier which owns lines on that date within such municipality and which is not a primary supplier. (9) “Service” means retail electric service and includes temporary or construction service as well as permanent service but excludes wholesale service and sales for resale. (10) “To own” or “to belong” or the like means, wherever used in reference to lines being used by an electric supplier, to have any proprietary or posses- sory interest. 38a (11) “Unassigned area-A” means a geographic area which, between March 29, 1973, and Sept. 1, 1975, was not an assigned area and was not declared to be an unassigned area-B. (12) “Unassigned area-B” means a geographic area which has not been assigned and which has been declared by the commission to be, or by operation of this part becomes, an unassigned area-B, and inside which an electric supplier shall have the right to extend and thereafter continue furnishing service to new premises locating therein if chosen by the con- sumer utilizing such premises, provided that an elec- tric supplier whose line, as it exists on March 29, 1973, or as thereafter lawfully constructed to serve new premises pursuant to this part, is at least par- tially within 500 feet of such new premises shall have the exclusive right to extend and continue furnishing service to such premises if the line of every other electric supplier so existing or so thereafter con- structed is at that time wholly more than 500 feet from such premises. (13) “Wholly new municipality’ means a mu- nicipality initially coming into existence after March 29, 1973, but not one resulting from the reincorporation of all or any portion of a geographic area theretofore contained in a previously existing municipality or from the merger, consolidation, or any other combination of two or more political subdi- * visions which are counties or incorporated cities. (Ga. L. 1973, p. 200, § 3; Ga. L. 1982, p. 3, § 46.) 39a 46-3-4. Assignment or declaration as unassigned areas-B of geographic areas outside municipal limits as of March 29, 1973. After March 29, 1973, and continuing thereafter as rapidly as it is administratively practicable to do so, the commission is authorized and directed to assign to elec- tric suppliers or to declare as unassigned areas-B all geographic areas in this state that were, on March 29, 1973, located outside the corporate limits of any munici- - pality. Such assignments and declarations of urfassign- ment shall be effected by the commission in accordance with the following standards: (1) Assigned areas shall be described by de- fined boundaries on maps to be filed with the commis- sion and incorporated by it in its orders. Where deemed necessary or appropriate, the commission may require boundaries to be additionally described by written metes and bounds; (2) Each geographic area assigned shall be as- signed to only one electric supplier, as determined by public convenience and necessity, ‘having primary regard for the location of electric suppliers’ lines but having no regard for differences in electric suppliers’ retail rates or for the fact that retail consumers are not then being served from such lines; (3) Each geographic area assigned shall be so assigned that its boundaries enclose land spaces in which the assignee electric supplier owns all or a preponderance of the lines, provided that a geo- graphic area may be so assigned or declared unas- signed even though it is completely surrounded by the inner boundaries of another geographic area assigned to an electric supplier. Boundaries will be 40a located around the perimeter of such land spaces so as to be approximately 1,000 feet from the nearest of the assignee electric supplier’s lines so enclosed, provided that if the lines of two or more electric suppliers are closer together than 2,000 feet, the boundary shall be located approximately halfway between them; provided, however, that where compel- ling factors of public convenience and necessity so require, including the need for using natural and manmade landmarks for boundary references, the location of a boundary may vary somewhat more or somewhat less than such 1,000 foot or halfway dis- tance; provided, further, that such 1,000 foot or halfway distance standards shall not apply to any lines of the assignee electric supplier which extend from inside the assigned area outside such area or to any lines of any other electric supplier which extend from outside the area inside or completely across such area and which do not otherwise occasion as- signment or unassignment of land space, the rights and restrictions applying to such other electric sup- plier’s lines inside such area being as provided for in paragraph (4) of this Code section; — (4) A line of an electric supplier which extends into or completely crosses a land space in which another electric supplier owns a preponderance of the lines may nevertheless be considered as the basis for assigning or declaring unassigned land space related thereto; but, unless such line so occasions an assignment or an unassignment, then, from and after the date of the assignment to an electric supplier of the geographic area within which such line is en- closed and based upon the location of both suppliers’ lines on that date, the electric supplier owning such 4la enclosed line shall have the exclusive right to extend and continue furnishing service to all new premises locating at least partially within 500 feet of such line and wholly more than 500 feet from the assignee electric supplier’s lines and shall have the right, if | chosen by the consumer utilizing such premises, to extend and continue furnishing service to new prem- ises locating at least partially within 500 feet of both | electric suppliers’ lines but shall not otherwise have the right, unless so agreed by the assignee electric supplier and the consumer utilizing such premises, to extend and furnish service to any other premises locating inside such assigned area; (5) Except where public convenience and neces- sity require their assignment, the commission shall declare an unassigned areas-B those land spaces which are not assigned to an electric supplier pursu- ant to any other provision of this part; and (6) Not inconsistent with Code Seciion 46-3-8, any electric supplier may apply to the commission for assignment to it of one or more geographic areas or for the commission to declare one or more geographic areas to be unassigned areas-B. (Ga. L. 1973, p. 200, § 4.) 46-3-5. Assignment of geographic areas within municipal limits as of March 29, 1973. Except as ctherwise provided in subsection (a) of Code Section 46-3-8, ali geographic areas inside the cor- porate limits of every municipality, as such limits existed on March 29, 1973, are assigned to the primary supplier, subject to the rights and restrictions applying to electric suppliers owning lines therein, as follows: Based upon the iii 42a location of all electric suppliers’ lines therein on March 29, 1973, every secondary supplier shall have the exclusive right to extend and continue furnishing service to new premises locating therein at least partially within 300 feet of its line and wholly more than 300 feet from the lines of every other electric supplier; and shall have the right, if chosen by the consumer utilizing such premises, to extend and continue furnishing service to new premises locating therein at least partially within 300 feet of both its lines and the lines of any other electric supplier; but shall not otherwise have the right, unless so agreed by the primary supplier and by any other secondary supplier whose lines are located at least partially within 300 feet thereof and the consumer utilizing such premises, to extend and continue furnishing service to any other prem- ises locating therein, which shall be the exclusive right of the primary supplier or such other secondary supplier, if such be the case. (Ga. L. 1974, p. 200, § 5; Ga. L. 1982, p. 3, § 46.) ¢ 46-3-6. Assignment, etc., of geographic areas included within wholly new municipalities after March 29, 1973. As to geographic areas which, after March 29, 1973, are included within the initial limits of a wholly new municipality, the rights and restrictions applying to elec- tric suppliers shall be as follows: (1) Any portion of such geographic area then already assigned to an electric supplier shall con- tinue to be so assigned until and unless reassigned by the commission to another electric supplier pursu- ant to paragraph (1) of subsection (d) of Code Section 46-3-8; and 4 AAI SUD eta RGIS HE he Md ce Dingell Obra sina 43a (2) Any portion of such geographic area which is then unassigned shall continue to be so unassigned until and unless it is assigned by the commission, taking into account the recommendation, if any, of the municipality itself, to an electric supplier pursu- ant to paragraph (2) of subsection (d) of Code Section 46-3-8. (Ga. L. 1973, p. 200, § 6; Ga. L. 1982, p. 3, § 46.) 46-3-7. Assignment, etc., of geographic areas annexed to municipalities after March 29, 1973. Whenever, after March 29, 1973, any geographic area is annexed to a municipality including the inclusion of a geographic area in a new municipality formed by the merger, consolidation, or any other combination of a then existing municipality and one or more other geographi- eally defined political subdivisions, if the resulting politi- cal subdivision constitutes a municipality as defined in Code Section 46-3-3, such geographic area shall be as- signed or assignable or become unassigned, and the rights and restrictions applying to electric suppliers therein shall be as follows: (1) In so much of such geographic area, if any, ‘as was immediately theretofore within the limits of a municipality as they existed on March 29, 1973, or as they existed on the date on which a wholly new municipality came into existence, and if such annexa- tion is caused by the merger, consolidation, or any other combination of such previously existing munici- pality and one or more other geographically defined political subdivisions, resulting in a political subdivi- sion which constitutes a municipality as defined in Code Section 46-3-3, the rights and restrictions ap- plying to all electric suppliers therein shall continue 44a to. be governed by Code Section 46-3-5 or 46-3-6, whichever is applicable; (2) As to such geographic areas other than those provided for in paragraph (1) of this Code section: (A) So much of such geographic area, if any, aS was already assigned to a primary sup- plier within a municipality which was in exis- tence on March 29, 1973, shall continue to be so assigned, provided that if such annexation is caused by the merger, consolidation, or any other combination of two or more such munici- palities having different primary suppliers, such assignments shall continue in favor of such pri- mary suppliers respectively; (B) If the annexation is to a wholly new municipality, then so much of such geographic area, if any, as was already assigned to an electric supplier then serving as an assignee electric supplier within such municipality — continue to be so assigned; * (C) If such annexation includes one or more wholly new municipalities or one or more municipalities which were in existence op March 29, 1973, then so much of such geographic area, if any, as was then contiguous to a wholly new nunicipality and was already assigned to an assignee electric supplier within such wholly new municipality, or which was contiguous to a municipality which was in existence on March 29, 1973, and was already assigned to the primary supplier within such municipality, shall continue to be so assigned; +S Rh NT BE rin ore ant er te RA ahs 9 anes 3 A OR LR S 9 nolan, TL DDE wt 45a (D) As to such geographic areas which are annexed by other than merger, consolidation, or other combination of a previously existing mu- nicipality and one or more other geographically defined political subdivisions so as to result in a political subdivision which constitutes a munici- pality as defined in Code Section 46-3-3 but are not provided for in paragraph (1) of this Code section or in subparagraphs (A), (B), and (C) of this paragraph, so much of such geographic area, if any, as was already assigned to any electric supplier shall continue to be so as- signed. In the event the primary supplier deliv- ers, not less than 45 nor more than 90 days prior to the effective date of such annexation, written notice of such annexation upon every other elec- tric supplier owning lines within the county or counties in which the annexing municipality is located (or, though not in the same county, within one mile of any portion of such geo- graphic area), such portions of such geographic area as shall not have been already assigned to any other electric supplier shall by operation of this part become assigned to the primary sup- plier unless, on or before the effective date of such annexation, there is filed with the commis- sion ene or more applications by one or more other electric suppliers for the assignment of any portion of such geographic area. If such an application or applications are filed, then, until there is a final determination with respect to such application or applications, the service rights and restrictions applying to electric sup- pliers in so much of such geographic area as is ~ 46a the subject matter of the application or applica- tions shall continue as they were immediately prior to the effective date of annexation. In such a proceeding, the commission, acting in accor- dance with Code Section 46-3-4, may make as- signments of all or any portion of such geographic area to one or more applicant electric suppliers. Any portion of such geographic area not so assigned to any other electric supplier shall, effective as of the final determination of such application or applications, be assigned by operation of this part to the primary supplier, provided that if the commission finds and,deter- mines upon complaint that such assignment to the primary supplier of any such portion thereof will be grossly inimical to the public interest, it shall designate such portion as an unassigned area-B. In any geographic area assigned by oper- ation of this part pursuant to this subparagraph, every secondary supplier shall have, based upon the location of all secondary suppliers’ lines therein on the effective date of the annexation, the exclusive right to extend and continue fur- nishing service to new premises locating therein at least partially within 300 feet of its line and wholly more than 300 feet from the lines of every other electric supplier; and shall have the riglit, if chosen by the consumer utilizing such prem- ises, to extend and continue furnishing service to new premises locating therein at least par- tially within 300 feet of both its lines and the lines of any other electric supplier; but shall not otherwise have the right, unless so agreed by the assignee electric supplier and by any other sec- POY et PETRIE FAS 0 BV DE + AP RL ATOR) = 47a ondary supplier whose lines are located at least partially within 300 feet thereof and the con- sumer utilizing such premises, to extend and continue furnishing service to any other prem- ises locating therein, which shall be the exclusive right of the assignee electric supplier or such other secondary supplier, if such be the case; or (E) If such geographic area was already an unassigned area-A or an unassigned area-B and was annexed by merger, consolidation or other combination of a previously existing municipal- ity and one or more other geographically defined political subdivisions so as to result in a political subdivision which constitutes a municipality as defined in Code Section 46-3-3, or if such an unassigned area-A or unassigned area-B was otherwise annexed but the notice of annexation required by subparagraph (D) of this paragraph was not given, such geographic area shall, on the effective date of the annexation, become or con- tinue to be, as the case may be, an unassigned area-B until and unless the commission assigns all or any portion thereof to an electric supplier pursuant to paragraph (2) of subsection (d) of Code Section 46-3-8. (Ga. L. 1973, p. 200, § 7; Ga. L. 1982, p. 3, § 46.) 46-3-8. Exceptions, grandfather rights, etc. (a) Notwithstanding any other provision of this part, but subject to subsections (b) and (c) of this Code section, after March 29, 1973, service to one or more new premises (but if more than one, such premises must be located on the same tract or on contiguous tracts of land), if utilized by one consumer and having single-metered 48a service and a connected load which, at the time of initial full operation of the premises, is 900 kilowatts or greater (excluding redundant equipment), may be extended and furnished, if chosen by the consumer: (1) By the primary supplier within a municipal- ity if the premises are located anywhere within the limits of such municipality as they existed on March 29, 1973; (2) By a secondary supplier within the limits of a municipality as they existed on March 29, 1973, if the premises are located at least partially within 300 feet of the lines of such secondary supplier; (3) By any electric supplier if the premises are located within the initial corporate limits of a wholly new municipality; (4) By any electric supplier owning lines in a municipality if the premises are located in a geo- graphic area annexed in any manner to such munici- pality after March 29, 1973; and (5) By any electric supplier if the premises are located outside the limits of a municipality. (b) Notwithstanding any other provision of this part, but subject to subsections (¢c) and (h) of this Code section, every electric supplier shali have the exclusive right to continue serving any premises lawfully served by it on March 29, 1973, or thereafter lawfully served by it pursuant to this part, including any premises last and previously served by it which before or after March 29, 1973, have become disconnected from service for any reason, and including premises which before or after March 29, 1973, have been destroyed or dismantled and 49a which are reconstructed after March 29, 1973, in substan- tial kind on approximately the same site. (c) Notwithstanding any other provision of this part: (1) Upon its own complaint or the complaint of any other electric supplier or any other interested party, the commission shall have the authority and jurisdiction, after notice to all affected electric sup- pliers and after hearing, if a hearing is requested by any affected electric supplier or any other interested party, to find and determine that the service of an electric supplier then serving a premises or exclu- sively entitled under this part to serve such premises is not adequate or dependable or that such electric supplier’s rates, charges, service rules and regula- tions, or the application thereof unreasonably dis- criminate in favor of or against the consumer utilizing such premises, or that an electric supplier is in violation of subsection (b) of Code Section 46-3- 11. Upon such determination, the commission shall have the authority and jurisdiction to order such electric supplier within a reasonable time to make such improvements as will make its service adequate and dependable, or to order such electric supplier within not less than 30 days to cease employing such discriminatory rates, charges, service rules and regu- lations, or the application thereof or the practices prohibited by subsection (b) of Code Section 46-3-11 and to substitute in lieu thereof, subject to approval by the commission, rates, charges, service rules and regulations, and practices of application thereof which are not unreasonably discriminatory, or prac- tices in conformity with subsection (b) of Code Section 46-3-11. If the commission finds and deter- 50a mines in its first consideration of the matter that such electric supplier is unwilling or unable within a reasonable time to make its service adequate and dependable, or is unwilling within 30 days to cease and correct such unreasonable discrimination or practices, or if it finds in a subsequent consideration of the matter that its order to improve service, its order to cease and correct the unreasonable discrimi- nation, or its order to cease and correct such prac- tices has not been timely and in good faith complied with, it may then order such electric supplier to cease or desist from serving such premises and order any other electric supplier which may reasonably do so to extend and furnish service to such premises; and (2) Upon the joint application of the affected electric suppliers, the commission shall have the authority and jurisdiction, after notice to all affected persons and after hearing, if a hearing is requested, to find and determine that the public convenience and necessity require, and thereupon to approve, the transfer of service from one electric supplier to another electric supplier. (d) Notwithstanding any other provisions of this part, but subject to subsection (b) of this Code section. the commission may: (1) If it determines that an assignee electric supplier has breached the tenets of public conve- nience and necessity therein, reassign all or any portion of an area assigned to that assignee electric supplier to another electric supplier; and (2) Ifit determines that public convenience and necessity so require, assign to any electric supplier all or any portion of a geographic area which thereto- Sla fore has been an unassigned area-A or an unassigned area-B. (e) Notwithstanding any other provision of this part: (1) No portion of a line constructed after March 29, 1973, by an electric supplier inside another electric supplier’s assigned area, inside an unas- signed area-A, or inside a municipality to serve premises which, but for the exception provided for in subsection (a) of this Code section, it would not have had the right to serve shall acquire any other service rights therein or impair or diminish any service rights of an assignee electric supplier or the service rights accruing to the lines of any electric supplier inside any assigned area, unassigned area-A, or mu- nicipality, provided that such electric suppiier may extend and furnish service from such line to any other premises which it otherwise has the right to serve; (2) No portion of a line constructed after March 29, 1973, by an electric supplier inside an unassigned area-B to serve premises which, but for the exception provided for in subsection (a) of this Code section, it would not have had the right to serve shall impair or diminish any service rights accruing to the lines of any other electric supplier inside such unassigned area-B, provided that such electric sup- plier may extend and furnish service from such line to any other premises which it otherwise has the right to serve; (3) No portion of a line constructed after March 29, 1973, by an electric supplier for the initial sole purpose of furnishing service at wholesale shall 52a acquire any other service rights or impair or diminish the service rights of any assignee electric supplier or the service rights accruing to the lines of any electric supplier, provided that such electric supplier may extend and furnish service from such line to any other premises which it otherwise has the mght to serve; (4) No electric ‘supplier shall, after March 29, 1973, construct its lines to serve new premises except in accordance with sound electric utility standards. If, after a hearing involving the affected electric suppliers and any other interested party, the commis- sion determines that an electric supplier is about to violate, is violating, or has violated such standards so as arbitrarily to preempt areas or arbitrarily to gain service rights for such a line, the commission is authorized and directed: (A) To order the offending electric sup- plier to cease and desist such construction or to alter and relocate the same; or (B) To deelare that such line or any offend- ing portion thereof shall not be taken into ac- count in assigning an area or in locating an assigned area boundary or shall not acquire any service rights that would otherwise accrue thereto or impair or diminish any service rights accruing to the lines of any other electric supplier; (5) Any electric supplier may extend and fur- nish service to any of its own premises devoted to publie service, whether the same shall have already been served by another electric supplier, but no line constructed for such purpose after March 29, 1973, 53a shall aequire any other service right or impair or diminish the service rights of any assignee electric supplier or the service rights accruing to the lines of any electric supplier, provided that such electric supplier may extend and furnish service from such line to other premises which it otherwise has the right to serve; (6) No line of a secondary supplier constructed prior to March 29, 1973, which on that date is not providing retail service to one or more premises within the limits of the municipality as they exist on that date shall acquire any service rights to provide retail service to any premises located within such municipal limits as they exist on that date. (f) The time at which an electric supplier, based upon the location or proximity of electric suppliers’ lines as in this part provided for, shal] be considered as having the right to extend and furnish, or as being restricted from extending and furnishing, service to new premises shall be the time at which written application for tempo- rary construction or permanent service is made to any electric supplier by the consumer utilizing such premises or the time at which construction of such premises is commenced, whichever first occurs. The location of a premises for temporary construction service shall be deemed to be the same as the location of the premises which shall require permanent service after construction. If temporary construction service is required at one site for the purpose of beginning the construction of premises at two or more sites, this subsection shall not preclude an electrie supplier, if chosen by the builder and having the right to serve at least one of the premises to be con- structed, from furnishing all of such temporary construc- tion service, notwithstanding the fact that one or more 54a other electric suppliers may have and may exercise the exclusive right thereafter to extend and furnish the per- manent service to one or more of the premises being constructed. (g) Whenever, after March 29, 1973, any new prem- ises requiring service are so sited as to be located par- tially within an assigned area, an unassigned area-A, or an unassigned area-B and also partially within any other assigned area, unassigned area-A, or unassigned area-B, such premises may be served by that electric supplier chosen by the consumer utilizing such premises from among the electric suppliers which are eligible under this part to extend and furnish such service within any of such areas. (h) Notwithstanding any other provisions of this part, if a majority of those voters of a municipality which was not rendering electric service on March 29, 1973, approve, by means of referendum vote, the purchase, construction, extension, operation, and maintenan