Common use of Evaluation of Positions Clause in Contracts

Evaluation of Positions. Avista notes in its comments that it has “long disputed the existence and calculation of its xxxxxx balance.” (Avista, XXX000000, at 3.) For example, Avista points to statements it submitted to BPA on June 8, 2000, wherein Avista argued (1) that Avista had not independently verified BPA’s calculation of the asserted xxxxxx balance; (2) that carrying over the xxxxxx balance calculated using the 1984 ASCM would be inconsistent with the Northwest Power Act; and (3) that carrying over the xxxxxx balance calculated using the 1984 ASCM would be inconsistent with the intent of the 1981 RPSA. (Id. at 4.) In addition to these claims, Avista notes a fourth claim that challenges BPA’s calculation of interest on the current xxxxxx balance. (Id. at 3.) Avista states it did not agree to any xxxxxx balance, and has not agreed to either the calculation or the accumulation of interest on any alleged balance since the termination of its RPSA in 1993. (Id.) Although BPA believes the terms of the RPSA allow the ASCM to change and the xxxxxx balances to be carried forward to new RPSAs, Avista expresses a number of forceful arguments supporting its position. In particular, Avista contends that there is a serious legal issue of whether the changes made in the 1984 ASCM were the types of changes contemplated when the xxxxxx provision was constructed. Although BPA believes the contract language favors its view, BPA cannot be certain that its position would ultimately prevail. The xxxxxx provision is a contractual rather than a statutory provision, and as such, BPA’s interpretation of the xxxxxx provision would not be afforded special deference. In a contractual litigation setting, where the Court looks to the intentions of the parties at the time of contracting, there is real legal risk that a Court could find persuasive Avista’s contention that the parties never intended the xxxxxx provision to accumulate xxxxxx balances under a methodology that was substantially different from the 1981 ASCM. If the Court were to hold for Avista on this issue, a significant portion of Avista’s xxxxxx balance, approximately 92 percent, could be lost. The proposed Settlement eliminates this legal uncertainty and locks in the value of the xxxxxx balance at $55 million beginning in FY 2002, which is beneficial to both BPA and its regional ratepayers. Many preference customers question the soundness of BPA’s decision to settle the Avista xxxxxx balance for $55 million on the basis that BPA is “giving up” on what they view as a clear right to $85.6 million. These parties generally discount any exposure that Avista’s claims may create, and argue that BPA should allow this matter to be settled by the courts. For example, Inland states that in its view “the appropriate means to settle this dispute is via the court system (Ninth Circuit Court). the ‘xxxxxx account’ mechanism was a clear component of the REP contracts and the financial implication of such mechanism should not be significantly altered unless the mechanism is found by the court to be inconsistent with law.” (Inland, ADS090001, at 1. Other public agency parties hold a similar view. (See NRU, ADS090003, at 2; PPC, ADS090004, at 2-3; WPAG, ADS090005, at 2-3; PNGC, ADS090006, at 1-2; APAC, ADS090007, at 1.) BPA does not deny that it has a sturdy case against Avista’s first three claims. Thus, BPA has no intention of “giving up” anything that it reasonably believes it can win. What these comments miss, however, is that BPA’s case is not without its own weaknesses. In particular, BPA became concerned about its position on the application of interest to the xxxxxx balance after Avista approached BPA to consider settlement of this dispute. To prepare for the negotiations, BPA reviewed its records to ensure that the $85.6 million xxxxxx balance that BPA had believed existed was supported by the available documents. BPA evaluated in detail the contractual basis for the interest rates BPA believed applied to Avista’s balance from the time that Avista’s 1981 RPSA terminated (1993) to the time that BPA commenced the WP-02 rate period (2001). As a result of this review, BPA discovered that the legal foundation for applying interest to the xxxxxx balance was not as sound as originally thought. Contrary to the generally held belief, there is no single contractual provision that clearly and indisputably establishes that interest applies to Avista’s outstanding xxxxxx balance. Instead, the case for BPA’s application of interest relies on the terms of an unanswered letter and the vague terms of two expired contracts. Discovery of this issue exposed a serious gap in BPA’s position. As BPA carefully considered these documents, and the facts surrounding their implementation, it became readily apparent to BPA that it would have a difficult time sustaining a claim of $85.6 million against Avista. Accumulated interest makes up a significant portion of the contested xxxxxx balance. From 1993 to 2001, Avista’s xxxxxx balance grew from approximately $59 million to approximately $85.6 million based on what may now be infirm grounds. Thus, of the total disputed outstanding balance of $85.6 million, roughly $26.6 million, or 30 percent of the balance, hinges on BPA’s case for interest. With the revelation of this new information, and considering the risk of Avista’s other claims, BPA reconsidered its litigation position and found that a settlement that secured $55 million, roughly 64 percent of what BPA believed was outstanding, was a reasonable way of preserving the value of the xxxxxx balance for BPA and the region while avoiding contentious, and possibly unsuccessful, litigation. BPA explained the basis for the proposed Settlement, including its concerns regarding interest, in both its letter to the region on January 28, 2009, as well as in a public meeting held at BPA on February 11, 2009. Because the basis for BPA’s case for interest is complicated and nuanced, it is understandable how many of the commenters would not appreciate the legal risk facing BPA if Avista were to commence litigation on this issue. Nonetheless, in a trial setting where the facts of the case will be subject to scrutiny, BPA is convinced that it would have been subject to substantial legal risk had Avista pursued its challenges to BPA’s interest assumptions. Because these issues are far more complicated than the comments appear to recognize, BPA provides below a detailed analysis of the agreements and other documents that would have been the key pieces of evidence in a contractual lawsuit with Avista. In providing the below discussion, it must be emphasized that this discussion focuses on the issues BPA uncovered with respect to the interest issue alone. During a trial on the merits of Avista’s xxxxxx balance, Avista would have also brought all of its other claims regarding the existence and calculation of its xxxxxx balance.

Evaluation of Positions. In its comments, Avista notes that its long-standing xxxxxx dispute arises from a provision in a bilateral contract between BPA and The Washington Water Power Company (“WWP”) (now Avista). (Avista, XXX000000, at 1-2.) Specifically, WWP’s 1981 RPSA with BPA included a provision that allowed WWP to deem its ASC equal to the PF rate. (Id.) In the event WWP made such election, BPA debited to a separate account any net exchange payment to BPA, and credited to that separate account any net exchange payment to the utility, that would have been required if the utility had not made such election. (Id.) Any debit balance that existed at the time the 1981 RPSA was terminated would not be a cash obligation. (Id.) This provision of the 1981 RPSA is commonly referred to as the xxxxxx provision. (Id.) Avista notes that the xxxxxx provision is clearly not a requirement of the Northwest Power Act and, consequently, has no statutory link to the REP; rather, the xxxxxx provision is a purely contractual term created by BPA that was included as part of the 1981 RPSA. (Avista, XXX000000, at 2.) Avista states the parties intended the xxxxxx provision to provide a mechanism to account for short-term fluctuations that may cause WWP’s ASC to temporarily fall below the PF rate. (Id.) Although the xxxxxx provision contemplated that xxxxxx amounts would be carried forward to subsequent exchange agreements, the parties expected any such amounts to be small and for the deeming utility to quickly pay off such amounts from future positive REP benefits. (Id.) At the time the parties executed the 1981 RPSA, the parties did not expect, or intend, the xxxxxx provision to cause WWP (and later Avista) to accrue substantial xxxxxx amounts that would effectively wipe Avista out of the REP and require future generations of Avista’s customers to forego benefits. (Id.) Avista states that at the time that WWP entered into the 1981 RPSA, BPA used the 1981 ASCM to calculate the REP benefits that utilities would receive. (Avista, XXX000000, at 2.) In 1984, over WWP’s and other IOUs’ objections, BPA adopted a new 1984 ASCM, which eliminated some of the legitimate costs of WWP’s, and other utilities’ resources—costs commonly charged to wholesale and retail customers. (Id.) Two of those costs—return on equity and income taxes—pertained solely to IOUs. (Id.) The 1984 ASCM was challenged. (Id.) Avista claims the Ninth Circuit found that BPA’s justifications had no logical support: Petitions correctly observe that there is no logical congruence which would support making interest payments on debt a proxy for equity return. There is, as well, an inconsistency in first disallowing equity return and then further disallowing the taxes on such profits.12 12 PacifiCorp v. FERC, 795 F.2d 816, 823 (9th Cir. 1986). (Id.) Avista states that, nevertheless, the Court deferred to BPA because BPA stated, in its comments experience, it needed to cap the cost of the overall program to reduce the risk that improper costs might be included in a utility’s ASC through the return on equity component. (Id.) Although the Court deferred to BPA, it expressly stated that it has did not sanction any permanent exclusion of those costs. (Id.) Avista notes that in adopting the 1984 ASCM, BPA clearly stated that it was not its intent to “long disputed wipe out the existence and calculation exchange.”13 (Avista, XXX000000, at 2.) Avista asserts that the 1984 ASCM had precisely that effect on Avista. (Id.) As a direct result of the adoption of the 1984 ASCM, Avista claims that its customers were wiped out of the REP. (Id.) Moreover, because under the 1984 ASCM Avista’s ASC was substantially less than the PF rate, Avista contends that it was forced to accrue a very significant xxxxxx balance.” . (Id.) At the time the parties entered into the 1981 RPSA, Avista argues that the parties did not contemplate changes to the ASC Methodology like those adopted in the 1984 ASCM. (Id.) Accordingly, there was no mechanism for Avista to suspend or terminate its 1981 RPSA to avoid accruing a substantial xxxxxx balance. (Id.) In 1987, Avista was finally able to suspend its 1981 RPSA, but not before accruing a significant xxxxxx balance. (Id.) Avista terminated its 1981 RPSA in 1993. (Id.) Avista states that due to the changes in the ASC Methodology, and Avista’s inability to suspend or terminate the 1981 RPSA, the xxxxxx provision had substantial unintended consequences. (Avista, XXX000000, at 3.) For exampleSpecifically, although Avista received less than $7 million in total benefits for its customers under the 1981 RPSA, BPA calculated that, as of the end of 2001, Avista points to statements it submitted to BPA on June 8, 2000, wherein Avista argued had accrued a xxxxxx balance of more than $85 million. (1Id.) The substantial disparity between the minimal amount of total benefits that Avista had not independently verified BPA’s calculation received for its customers and the enormous xxxxxx balance that it accrued under the 1981 RPSA is demonstrative of the asserted xxxxxx balance; (2) that carrying over substantial inequities caused by the xxxxxx balance calculated using the 1984 ASCM would be inconsistent with the Northwest Power Act; and (3) that carrying over the xxxxxx balance calculated using the 1984 ASCM would be inconsistent with the intent of provision in the 1981 RPSA. (Id. at 4.Id.) In addition to these claimsThose inequities are magnified by the fact that, for approximately 12 years (1984-2001), Avista notes a fourth claim that challenges BPA’s calculation of interest on the current xxxxxx balance. (Id. at 3.) Avista states it did not agree to any xxxxxx balancereceived no REP benefits for its customers, and has not agreed by the fact that a new generation of customers—customers that received no REP benefits under the 1981 RPSA—are, in essence, required to either pay back Avista’s substantial xxxxxx balance through the calculation or the accumulation elimination of interest on any alleged balance since the termination of its RPSA in 1993their REP benefits. (Id.) Although BPA believes the terms of the RPSA allow the ASCM to change and IPC also states that the xxxxxx balances to be carried forward to new RPSAs, Avista expresses a number of forceful arguments supporting its position. In particular, Avista contends that there is a serious legal issue of whether the changes made provisions contained in the 1984 ASCM were the types of changes contemplated when the xxxxxx provision was constructed. Although BPA believes the contract language favors its view, BPA cannot be certain that its position would ultimately prevail. The xxxxxx provision is a contractual rather than a statutory provision, and as such, BPA’s interpretation of the xxxxxx provision would not be afforded special deference. In a contractual litigation setting, where the Court looks to the intentions of the parties at the time of contracting, there is real legal risk that a Court could find persuasive Avista’s contention that the parties never intended the xxxxxx provision to accumulate xxxxxx balances under a methodology that was substantially different from the 1981 ASCM. If the Court were to hold for Avista on this issue, a significant portion of Avista’s xxxxxx balance, approximately 92 percent, could be lost. The proposed Settlement eliminates this legal uncertainty and locks RPSAs have had consequences unintended in the value of the xxxxxx balance at $55 million beginning in FY 2002, which is beneficial to both BPA and its regional ratepayers. Many preference customers question the soundness of BPA’s decision to settle the Avista xxxxxx balance for $55 million on the basis that BPA is “giving up” on what they view as a clear right to $85.6 million. These parties generally discount any exposure that Avista’s claims may create, and argue that BPA should allow this matter to be settled 1981 by the courts. For example, Inland states that in its view “the appropriate means signatories to settle this dispute is via the court system (Ninth Circuit Court). the ‘xxxxxx account’ mechanism was a clear component of the REP contracts and the financial implication of such mechanism should not be significantly altered unless the mechanism is found by the court to be inconsistent with law.” (Inland, ADS090001, at 1. Other public agency parties hold a similar viewthose agreements. (See NRUIPC, ADS090003, at 2; PPC, ADS090004, at 2-3; WPAG, ADS090005, at 2-3; PNGC, ADS090006XXX000000, at 1-2; APAC, ADS090007, at 1.) IPC states the RPSAs were developed by BPA does not deny that it has a sturdy case against Avista’s first three claimsin an environment when BPA and qualifying utilities were highly motivated to enable widespread participation in the REP. Thus, BPA has no intention of “giving up” anything that it reasonably believes it can win. What these comments miss, however, is that BPA’s case is not without its own weaknesses. In particular, BPA became concerned about its position on the application of interest to (Id.) IPC notes the xxxxxx balance after Avista approached provisions clearly were not intended by BPA to consider settlement preclude significant numbers of this disputethe region’s small farm and residential customers from participating in the long term in the benefits of the region's Federal hydroelectric system. To prepare for the negotiations, BPA reviewed its records to ensure that the $85.6 million xxxxxx balance that BPA had believed existed was supported by the available documents. BPA evaluated in detail the contractual basis for the interest rates BPA believed applied to Avista’s balance from the time that Avista’s 1981 RPSA terminated (1993Id.) to the time that BPA commenced the WP-02 rate period (2001). As a result of this review, BPA discovered that the legal foundation for applying interest to the xxxxxx balance was not as sound as originally thought. Contrary to the generally held belief, there is no single contractual provision that clearly and indisputably establishes that interest applies to Avista’s outstanding xxxxxx balance. Instead, the case for BPA’s application of interest relies on the terms of an unanswered letter and the vague terms of two expired contracts. Discovery of this issue exposed a serious gap xxxxxx clauses were designed to address relatively minor variations in BPA’s positionPF rate and exchanging utilities’ ASCs. As BPA carefully considered (Id.) However, the effect of these documentsclauses, and the facts surrounding their implementation, it became readily apparent when brought forward to BPA that it would have a difficult time sustaining a claim of $85.6 million against Avista. Accumulated interest makes up a significant portion of the contested xxxxxx balance. From 1993 to 2001, Avista’s xxxxxx balance grew from approximately $59 million to approximately $85.6 million based on what may now be infirm grounds. Thus, of the total disputed outstanding balance of $85.6 million, roughly $26.6 million, or 30 percent of the balance, hinges on BPA’s case for interest. With the revelation of this new information, and considering the risk of Avista’s other claims, BPA reconsidered its litigation position and found that a settlement that secured $55 million, roughly 64 percent of what BPA believed was outstanding, was a reasonable way of preserving the value of the xxxxxx balance for BPA and the region while avoiding contentious, and possibly unsuccessful, litigation. BPA explained the basis for the proposed Settlement, including its concerns regarding interest, in both its letter to the region on January 28, 2009, as well as in a public meeting held at BPA on February 11, 2009. Because the basis for BPA’s case for interest is complicated and nuanced, it is understandable how many of the commenters would not appreciate the legal risk facing BPA if Avista were to commence litigation on this issue. Nonetheless, in a trial setting where the facts of the case will be subject to scrutiny, BPA is convinced that it would have been subject to substantial legal risk had Avista pursued its challenges to BPA’s interest assumptions. Because these issues are far more complicated than the comments appear to recognize, BPA provides below a detailed analysis of the agreements and other documents that would have been the key pieces of evidence in a contractual lawsuit with Avista. In providing the below discussion, it must be emphasized that this discussion focuses on the issues BPA uncovered with respect to the interest issue alone. During a trial on the merits of Avista’s xxxxxx balance, Avista would have also brought all of its other claims regarding the existence and calculation of its xxxxxx balance.RPSA taking into account

Evaluation of Positions. Avista notes The proposed Settlement was developed in its comments that it has “long disputed response to the existence particular factual, legal, and equitable issues related to the validity and calculation of its xxxxxx balance.” (Avista, XXX000000, at 3.) For example, Avista points to statements it submitted to BPA on June 8, 2000, wherein Avista argued (1) that Avista had not independently verified BPA’s calculation of the asserted xxxxxx balance; (2) that carrying over the xxxxxx balance calculated using the 1984 ASCM would be inconsistent with the Northwest Power Act; and (3) that carrying over the xxxxxx balance calculated using the 1984 ASCM would be inconsistent with the intent of the 1981 RPSA. (Id. at 4.) In addition to these claims, Avista notes a fourth claim that challenges BPA’s calculation of interest on the current xxxxxx balance. (Id. at 3.) Avista states it did not agree to any xxxxxx balance, and has not agreed to either the calculation or the accumulation of interest on any alleged balance since the termination of its RPSA in 1993. (Id.) Although BPA believes the terms of the RPSA allow the ASCM to change and the xxxxxx balances to be carried forward to new RPSAs, Avista expresses a number of forceful arguments supporting its position. In particular, Avista contends that there is a serious legal issue of whether the changes made in the 1984 ASCM were the types of changes contemplated when the xxxxxx provision was constructed. Although BPA believes the contract language favors its view, BPA cannot be certain that its position would ultimately prevail. The xxxxxx provision is a contractual rather than a statutory provision, and as such, BPA’s interpretation of the xxxxxx provision would not be afforded special deference. In a contractual litigation setting, where the Court looks to the intentions of the parties at the time of contracting, there is real legal risk that a Court could find persuasive Avista’s contention that the parties never intended the xxxxxx provision to accumulate xxxxxx balances under a methodology that was substantially different from the 1981 ASCM. If the Court were to hold for Avista on this issue, a significant portion of Avista’s xxxxxx balance. As noted previously, approximately 92 percentAvista has certain legal claims related to the merits of the underlying xxxxxx balance Avista accrued under its 1981 RPSA. Avista also challenges BPA’s determination of the interest that is applicable to the outstanding balance. In its assessment of legal risk, could be lostBPA believes there is legal risk regarding its claim for interest on Avista’s xxxxxx balance beyond the early 1990s. The As noted previously, BPA is not blind to the equities that led to Avista’s current xxxxxx balance, which concern both BPA’s revision of the 1981 ASCM (which raised Avista’s xxxxxx from $6.8 million to over $39 million in less than three years) and the application of interest to the principal amount. Taken together, BPA believes that the proposed Settlement eliminates this legal uncertainty properly responds to these particular facts in a reasonable and locks in sound business manner. In its comments, Xxxxxx argues that the value disposition of the xxxxxx balance at $55 million beginning in FY 2002, which is beneficial to both dispute between BPA and its regional ratepayers. Many preference customers question the soundness of Avista is likely to have implications for other “xxxxxx account balance” issues with potentially even larger impacts on BPA’s decision to rates. (Inland, ADS090001, at 1.) Inland, therefore, recommends that BPA settle the dispute with Avista xxxxxx balance for $55 million on the basis that BPA is “giving up” on what they view as a clear right to $85.6 million. These parties generally discount any exposure that Avista’s claims may create, and argue that BPA should allow this matter to be settled by the courts. For example, Inland states that in its view “the appropriate means to settle this dispute is via the court system (Ninth Circuit Court). the ‘xxxxxx account’ mechanism was a clear component of the REP contracts and the financial implication of such mechanism should not be significantly altered unless the mechanism is found by the court to be inconsistent with law.” (Inland, ADS090001, at 1. Other public agency parties hold Id.) NRU raises a similar viewconcern in its comments. (See NRU, ADS090003, at 2; PPC, ADS090004, at 2-3; WPAG, ADS090005, at 2-3; PNGC, ADS090006, at 1-2; APAC, ADS090007, at 1.) BPA does not deny NRU notes that IPC has a xxxxxx balance that is much larger than Avista’s. (Id.) XXX explains that it is very concerned that the settlement of this issue along the lines proposed here for Avista could set a precedent for a settlement with IPC. (Id.) BPA understands the concerns raised by Xxxxxx and NRU. IPC, the only other utility with an outstanding xxxxxx balance, has a sturdy case against disputed xxxxxx balance that has many similarities to Avista’s first three claimsdispute. Thus, BPA has no intention IPC received a relatively small amount of “giving up” anything that it reasonably believes it can win. What these comments miss, however, is that BPA’s case is not without its own weaknesses. In particular, BPA became concerned about its position on REP benefits under the application of interest REP in relation to the xxxxxx balance after Avista approached BPA to consider settlement of this dispute. To prepare for the negotiations, BPA reviewed its records to ensure that the $85.6 million xxxxxx balance that BPA had believed existed was supported by the available documents. BPA evaluated in detail the contractual basis for the interest rates BPA believed applied to Avista’s balance from the time that Avista’s 1981 RPSA terminated (1993) to the time that BPA commenced the WP-02 rate period (2001). As a result of this review, BPA discovered that the legal foundation for applying interest to the xxxxxx balance was not as sound as originally thought. Contrary to the generally held belief, there is no single contractual provision that clearly and indisputably establishes that interest applies to Avista’s outstanding xxxxxx balance. Instead, the case for BPA’s application of interest relies on the terms of an unanswered letter and the vague terms of two expired contracts. Discovery of this issue exposed a serious gap in BPA’s position. As BPA carefully considered these documents, and the facts surrounding their implementation, it became readily apparent to BPA that it would have a difficult time sustaining a claim of $85.6 million against Avistaultimately accumulated. Accumulated interest makes up a significant portion of the contested xxxxxx balance. From 1993 to 2001, AvistaIPC’s xxxxxx balance also grew substantially after BPA changed the ASC Methodology in 1984, from approximately $59 1.5 million at the end of 1984 to approximately $85.6 32.3 million based on what may now be infirm groundsat the end of 1987. ThusLike Avista, of IPC executed a Suspension Agreement. Finally, IPC has disputed the total disputed outstanding balance of $85.6 million, roughly $26.6 million, or 30 percent of the balance, hinges on BPA’s case for interest. With the revelation of this new information, and considering the risk of Avista’s other claims, BPA reconsidered its litigation position and found that a settlement that secured $55 million, roughly 64 percent of what BPA believed was outstanding, was a reasonable way of preserving the value of the xxxxxx balance for BPA validity and the region while avoiding contentious, and possibly unsuccessful, litigation. BPA explained the basis for the proposed Settlement, including its concerns regarding interest, in both its letter to the region on January 28, 2009, as well as in a public meeting held at BPA on February 11, 2009. Because the basis for BPA’s case for interest is complicated and nuanced, it is understandable how many of the commenters would not appreciate the legal risk facing BPA if Avista were to commence litigation on this issue. Nonetheless, in a trial setting where the facts of the case will be subject to scrutiny, BPA is convinced that it would have been subject to substantial legal risk had Avista pursued its challenges to BPA’s interest assumptions. Because these issues are far more complicated than the comments appear to recognize, BPA provides below a detailed analysis of the agreements and other documents that would have been the key pieces of evidence in a contractual lawsuit with Avista. In providing the below discussion, it must be emphasized that this discussion focuses on the issues BPA uncovered with respect to the interest issue alone. During a trial on the merits of Avista’s xxxxxx balance, Avista would have also brought all of its other claims regarding the existence and calculation of its xxxxxx balance. BPA appreciates the parties’ concerns that BPA may be setting a precedent, given the similarities between Avista and IPC; however, BPA considers the legal risk associated with each utility’s claims on a case-by-case basis and will not speculate whether BPA would consider settlement of IPC’s xxxxxx balance on the same or similar terms. Even assuming for the sake of argument that BPA decides it is reasonable to settle with IPC, it does not follow that the proposed Settlement will in some way establish an immovable precedent that restricts BPA’s ability to negotiate reasonable terms with IPC. The similarities between the two cases do not, in BPA’s view, mean perforce that IPC and BPA will reach the exact same settlement, if any at all. Unlike Avista’s case, BPA has not conducted an in-depth review of the relevant factual and legal background that created IPC’s current disputed xxxxxx balance. BPA would have to review this information and discuss this matter further with IPC before considering any such settlement. BPA would also commence a public process to receive public input as well. Whether as a result of such negotiations and comments the same or similar settlement would be reached cannot be determined at this point. BPA, of course, is not foreclosing the possibility that BPA and IPC could reach a similar result. However, whatever the outcome, any settlement would be the product of the specific factual, legal, and equitable circumstances of IPC’s xxxxxx balance, and not simply because it is the “same deal” that BPA offered Avista. Because BPA has not done the requisite analysis, it is too early to tell whether the proposed Settlement would have any import for a settlement with IPC.