Fort Collins software lawsuit unresolved; to be heard before jury

FORT COLLINS — A lawsuit filed in 2021 over the purchase of a utility billing system to handle both the city of Fort Collins’ broadband utility, Connexion, and other utilities remains unresolved. A judge has determined that, for the most part, disputed facts need to be resolved by a jury.

Fort Collins sued Open International LLC and Open Investments LLC, Florida-based software developers, in July 2021. It claimed that Open failed to perform under its contract with the city and misled the city prior to forming the contract about its abilities to produce the billing software that the city required. Open had developed utility-billing software in Latin American markets, but Fort Collins was its first U.S. customer.

Open counterclaimed in August of that year that the city failed to live up to its end of the bargain, including giving it time to cure defaults and failure to assign competent staff members to manage the arrangement.

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At the time of filing the lawsuit, Fort Collins had already paid or set aside nearly $10 million toward software that didn’t work as represented, the lawsuit claimed. 

Both parties filed motions for summary judgment. U.S. District Court Judge Charlotte N. Sweeney in Denver ruled on those motions May 22. She denied Open’s motion for summary judgment, saying none of the company’s arguments were persuasive. 

Among them: “Open argues that there is no evidence that Open misrepresented an existing fact about Open’s product in its RFP (request for proposal) response. According to Open, it was speaking prospectively about (software) while it was still in development and untested.” The city countered that Open graded features as then-existing when they were nonexistent, she said. 

Sweeney granted in part and denied in part the city’s motions. Among the denials were motions about payment for services performed but not invoiced, damages for services rendered past deadlines, damages for fees that the city held in retainage, and a motion to limit damages based upon the city charter and the Taxpayers Bill of Rights.

She granted summary judgment in favor of the city on issues related to how much each party was to pay for extended services and for whether the city breached the implied covenant of good faith.

A jury trial is scheduled for October in the case.

The case is city of Fort Collins v. Open International LLC and Open Investments LLC, case number 21cv02063 in U.S. District Court in Denver.