The Cheshire cat in Lewis Carroll’s ‘Alice in Wonderland’ drawn by John Tenniel (1820-1914) in the 1866 edition. Courtesy

An unusual proceeding took place at Tuesday night’s County Council meeting in which GEW Mechanical, Inc. of Albuquerque was protesting the granting of a contract to Landis & Gyr Company for “Automated Metering Infrastructure” as part of the Department of Public Utilities NEDO Smart Meter Project. Council was conducting a “quasi-judicial” hearing that is much like a trial, but in this case the entire Council acts as the judge and jury in order to decide if a contract protest has merit.  

Wayne E. Bingham, an attorney with Bingham, Hurst & Apodaca is representing GEW Mechanical. The County is represented by County Assistant Attorney Dan Gonzales. (See link to details of the case below.)

Usually, these types of contract procurement protest hearings take only a couple hours of Council’s time.

This one is different.

Bingham is presenting a full blown legal case to Council. At 11:30 p.m., a couple of hours into the hearing, Council Chair Geoff Rodgers called the night’s hearing to a recess. A mad scramble then ensued to find a future date when the Council and the attorneys could hold a continuation of the hearing. After a bunch of dates where thrown out and rejected, a date was finally agreed upon. The hearing is scheduled to resume at 7 p.m. Monday, May 13 at the Community Building.

To this observer, the case brought by Bingham on behalf of GEW Mechanical appears fairly frivolous, but we must go through the paces of this quasi-judicial proceeding, just because.  But it’s not for me to decide the outcome of the protest, Council will hear the rest of Bingham’s case and then make its decision after mulling over all the lengthy testimony.

At the beginning of the hearing Gonzales said to Council, “Anyone can file a complaint that is as groundless as the appeal that you are about to hear tonight.”

Here is my opinion on the basic arguments in this case. It appears that GEW wants the County to pay $12 million for work and materials that the County mostly didn’t even request, according to the County’s side of the argument. Landis & Gyr (the company that was awarded the contract to provide the smart meters) on the other hand, offered to provide pretty much what the County requested and for what looks like $11.5 million or so less than GEW’s bid. The Landis bid came in at around $500,000. 

Bingham implied that Landis underbid the work and said they will likely end up costing the County much more. But, what would “much more” end up being? Double Landis’ $500,000 bid? Triple? That is magnitudes less than GEW’s $12 million bid. According to Gonzales, GEW’s bid didn’t include any smart meters at all, only the installation of smart meters that would still have to be purchased beyond the bid price. The DPU plans to do the actual physical installation of the meters itself, according to Gonzales. DPU management demonstrated to Council just how simple the meter installation process can be using the Landis proposed solution.

GEW appears to me to believe that the Department of Public Utilities doesn’t really know what it wants and GEW insists they know better, and dammit, GEW is going to pour it down the County’s throat like bad tasting medicine, cause it is good for us!

I had to chuckle as I listened to Bingham’s arguments. Watch the actual arguments for yourself using the link below. It’s pretty interesting – as Council meetings go!

I believe that GEW doesn’t fully understand that this project is just a small scale experiment in order to meet the obligations that the DPU has with the NEDO project. The DPU is trying to do the project as cheaply as possible. It’s not supposed to be a massive $12 million dollar smart meter roll out. It’s a test, an experiment, not a major infrastructure outlay for darn sake!

In my opinion (unless some new wrinkle emerges in this case), GEW appears destined to ultimately lose this protest appeal and the contract will continue to go to the Landis & Gyr bid. Of course, should GEW lose this protest, they can take the case to a “real court” and cause a massive delay to the NEDO smart meter project. I give the odds of this happening about 75 percent given the unwavering insistence of a strong case by Bingham and what must be deep pockets at GEW.

Similarly, the Ashley Pond project is being held up, hopefully temporarily, by what amounts to an unofficial protest of the granting of a contract for the pond improvements construction. 

One of the companies that lost the bid to do the pond work is “inquiring” into a potential problem with the contract, something to do with insurance and licenses. The County’s purchasing department decided to request that the consent agenda contract grant be pulled from Tuesday’s Council agenda. All the submitted RFP’s for the project will be reviewed once again and then the contract is expected to be placed on the next available Council agenda. 

The purchasing department informs me that they don’t expect any delay to the Pond project because of this un-protest. We will see. The un-protesting company could decide to submit a real protest and gum up the works for the Ashley Pond project. Maybe they can hire Bingham for their protest, too, he’s got on-the-job experience! 

These are strange days folks! People are willing to do just about anything to get their way. Just look at our national government mired in total political treachery and gridlock.

It’s really a shame that we have to go through this process when Council has so many pressing issues to deal with, such as declining revenues. But, GEW has the right to pay Bingham big bucks to present their legal protest to Council, but we citizens don’t have to keep a straight face about it! The cheshire cat must be smiling. Can anyone see him?

To read further details of Tuesday’s Council meeting, click HERE.

To watch the video of the hearing, click HERE. The hearing’s opening statements start at 2 hours and 55 minutes into the video – 02:55:00. The slider may be moved to this point in the video.