Common use of OVERALL FAIRNESS OF ADMINISTRATION Clause in Contracts

OVERALL FAIRNESS OF ADMINISTRATION. Despite a variety of minor disagreements and concerns, and two fundamental disagreements, Xxxxxx Seco Consulting’s overall judgment was that PG&E’s administration of its protocols to arrive at a short list for the 2009 RPS RFO was fair, unbiased, consistent, and reasonable. Some of the disagreements between Xxxxxx and the PG&E team fall into the category of choices that Xxxxxx would have not made if it were administering the solicitation, but that Xxxxxx agrees are choices a reasonable person could make if that person had different priorities or emphases regarding the weights assigned to evaluation criteria. Most of PG&E’s decisions to select for the short list Offers whose Project Viability Scores fell below its viability cutoff, on the basis of superior scores on attributes such as RPS Goals, supplier diversity, or technology diversity, fall into this category. Similarly, PG&E’s decision to reject from the short list the highest valued Offers it received on the basis of a preference for early on-line dates is one that Xxxxxx would not have made, but may be a reasonable choice for a utility that has obligations to achieve near-term targets for RPS compliance. PG&E did select for its short list two Offers that, in Xxxxxx’x opinion but not in PG&E’s, are sufficiently low in demonstrated project viability that these choices raise a question about the fairness and consistency of the decisions to select them. This disagreement represents a situation where reasonable observers can arrive at opposing opinions about the viability of a transaction given the same presented facts.

OVERALL FAIRNESS OF ADMINISTRATION. Despite a variety of minor disagreements and concerns, and two fundamental disagreements, Xxxxxx Seco Consulting’s overall judgment was that PG&E’s administration of its protocols to arrive at a short list for the 2009 RPS RFO was fair, unbiased, consistent, and reasonable. Some of the disagreements between Xxxxxx and the PG&E team fall into the category of choices that Xxxxxx would have not made if it were administering the solicitation, but that Xxxxxx agrees are choices a reasonable person could make if that person had different priorities or emphases regarding the weights assigned to evaluation criteria. Most of PG&E’s decisions to select for the short list Offers whose Project Viability Scores fell below its viability cutoff, on the basis of superior scores on attributes such as RPS Goals, supplier diversity, or technology diversity, fall into this category. Similarly, PG&E’s decision to reject from the short list the highest valued Offers it received on the basis of a preference for early on-line dates is one that Xxxxxx would not have made, but may be a reasonable choice for a utility that has obligations to achieve near-term targets for RPS compliance. PG&E did select for its short list two Offers that, in Xxxxxx’x Arroyo’s opinion but not in PG&E’s, are sufficiently low in demonstrated project viability that these choices raise a question about the fairness and consistency of the decisions to select them. This disagreement represents a situation where reasonable observers can arrive at opposing opinions about the viability of a transaction given the same presented facts.

OVERALL FAIRNESS OF ADMINISTRATION. Despite a variety of minor disagreements and concerns, and two fundamental disagreements, Xxxxxx Seco Consulting’s overall judgment was is that PG&E’s administration of its protocols to arrive at a short list for the 2009 RPS RFO was fair, unbiased, consistent, and reasonable. Some of the Most disagreements between Xxxxxx and the PG&E team fall into the category of choices that Xxxxxx would have not made if it were administering the solicitation, but that Xxxxxx agrees are choices a reasonable person could make if that person had different priorities or emphases regarding the weights assigned to evaluation criteria. Most of PG&E’s decisions to select for the short list Offers whose Project Viability Scores fell below its viability cutoff, on the basis of superior scores on attributes such as RPS Goals, supplier diversity, or technology diversity, fall into this category. Similarly, PG&E’s decision to reject from the short list the highest valued Offers it received on the basis of a preference for early on-line dates is one that Xxxxxx would not have made, but may be a reasonable choice for a utility that has obligations to achieve near-term targets for RPS compliance. PG&E did select for its short list two Offers that, in Xxxxxx’x opinion but not in PG&E’s, are sufficiently low in demonstrated project viability that these choices raise their selection raises a question serious concern about the fairness and consistency of the decisions to select them. This disagreement represents a situation where reasonable observers can arrive at opposing opinions about the viability of a transaction given the same presented facts. The specific issues raised by these Offers are addressed in the confidential appendix to this report.