             United States Court of Appeals
                           For the First Circuit


No. 10-2327

                              POWERCOMM, LLC,

                           Plaintiff, Appellant,

                                     v.

               HOLYOKE GAS & ELECTRIC DEPARTMENT;
             JAMES M. LAVELLE; BRIAN C. BEAUREGARD;
    JEFFREY BROUILLARD; MICHAEL COSTELLO; CHARLES L. MARTEL,

                           Defendants, Appellees.



                                    Before
                           Boudin, Selya and Dyk,*
                               Circuit Judges.

                              ORDER OF COURT
                        Entered: October 20, 2011


             Per Curiam.    Only one matter raised in the petition for

panel rehearing requires comment.          The petition asserts that the

opinion wrongly credited Delgado with the estimate, reflected in a

spreadsheet, that Willco's bid on the 2007 contract was 19 percent

lower than PowerComm's bid; it also asserts that the decision

overlooked and failed to address PowerComm's argument and evidence

showing     that   Brouillard--who   did   review   the   bid   figures   and

seemingly is responsible for the 19 percent cost calculation--



     *
         Of the Federal Circuit, sitting by designation.

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provided a slanted and inaccurate assessment that caused PowerComm

to lose the contract.

            The decision did inaccurately attribute the estimate to

Delgado rather than Brouillard, repeating a statement made in the

district court's opinion that PowerComm never clearly challenged in

its appeal.    The panel opinion is now being corrected in this and

a related respect by an errata.           In any event, the claim now made

by PowerComm that Brouillard provided an inaccurate and slanted

assessment appears nowhere in a coherent form in PowerComm's

briefs, which is why no such issue was discussed in the decision.

Thus, that argument, now made in the petition, is itself forfeit.

            It also lacks merit.          The three pieces of evidence on

which   PowerComm       now   relies,   although   mentioned   in    scattered

references in the briefs, do not create a colorable jury issue or

allow   a   jury   to    conclude   the   19   percent   figure     was   either

inaccurate or slanted.          None says that the 19 percent figure is

inaccurate; and any inferences suggested are refuted by evidence in

the record.    Specifically, the items are:

                   --an excerpt from a PowerComm expert's
            report saying that the cost comparison may be
            incomplete and that if the formula used for
            costing were omitted from bid specs, this
            might allow unfairness; but the expert said he
            did not know whether it was omitted, and he
            did not assert, let alone show, that the
            formula was wrong or improperly favored the
            winning bid.

                   --a September 18, 2007, letter from
            Brouillard to Willco stating that HG&E would
            pay "all" Willco employees at the "General
            Foreman" rate; but Willco's head manager
            confirmed that this was a misstatement--the

                                        -3-
           actual discussion between them was that he
           would get that top rate; and Brouillard's
           superior, Beauregard, confirmed that only the
           general manager would ever have received the
           top rate.

                  --Brouillard's January 31, 2008, e-mail
           to Beauregard, saying that PowerComm's 2007
           bidding rates were "minimum realistic pricing
           to be obtained on the rebid"; but after the
           original 2007 award and before the new
           bidding, Willco signed a union contract that
           PowerComm's own brief acknowledged would
           substantially raise its costs.

           In short, neither in its briefs nor in the rehearing

petition has PowerComm pointed to credible record evidence to show

that the 19 percent figure was inaccurate, let alone deliberately

slanted.   Indeed, if that argument had been made--and supported by

a   serious   expert   assessment     devoted   to   that   subject--the

spreadsheet would have been a central subject of analysis and its

authorship likely would have become clear.

           The petition for rehearing is denied.


                                     By the Court:
                                     /s/ Margaret Carter, Clerk




cc: Hon. Michael A. Ponsor, Ms. Sarah Thornton, Clerk, United
States District Court for the District of Massachusetts, Mr. Albro,
Mr. Battey, Mr. Ferriter & Mr. Bohn.




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