Funding Status
Wave 20 for FY 2013 will be released on Wednesday, October 2, 2013, for $156 million. Funding is currently being provided for Priority 1 services only. Cumulative funding for FY 2013 will be $940 million.
Wave 62 for FY 2012 will be released on Thursday, October 3, 2013, for $7.61 million. Priority 2 funding is being provided at 90%, and is being denied at 89% and below. Cumulative funding for FY 2012 will be $2.76 billion.
Definition of “RFP”
The FCC published an interesting appeal decision last week for Washington Unified SD (DA 13-1946) which addressed the definition of an “RFP” for Form 470 purposes. FCC rules require an applicant posting a Form 470 to explicitly indicate whether it has filed, or plans to file, an associated request for proposal. Providing an RFP, but not indicating its availability in the Form 470, is considered a competitive bidding violation and is grounds for denial.
To many applicants, the term “RFP” (or equivalent) has a specific connotation. By state law or local policy, an RFP is typically quite detailed and must often include specific language, legal review, publication in local newspapers, and/or other criteria. By way of contrast, a Form 470 does not provide much room to describe service details or bidding requirements. As a result, some applicants prepare supplementary materials which can be posted online and/or given to responding service providers. Unfortunately, USAC may consider such supplementary material as constituting an RFP. The definition of “RFP,” therefore, can be very important.
In the Washington appeal case, the FCC found that:
The record demonstrates that Washington submitted an FCC Form 470 describing in broad terms the services for which it was seeking bids, and provided additional supplementary documents, entitled “Summary of Projects” and “Instructions to Bidders” (“supplementary documents”), to vendors that responded to its FCC Form 470. USAC found that the supplementary documents constituted an RFP that was not identified in Washington’s FCC Form 470, and therefore Washington violated the FCC’s competitive bidding requirements.
We [the FCC} disagree with Washington’s characterization of its FCC Form 470 and the supplementary documents. The supplementary documents, which were not available to all potential bidders, but were only provided to vendors that responded to Washington’s FCC Form 470, included a far more detailed description of the services Washington was seeking to purchase than its FCC Form 470, and contained explicit instructions concerning the procurement process. By not including this information on its FCC Form 470 or indicating on the FCC Form 470 that supplemental information was available to interested bidders, Washington created the risk that it artificially constricted the potential pool of applicants that could meet its specific requirements.
On its face, this is a disturbing decision. Because the appeal order does not describe the extent of the supplementary information provided by Washington — other than to call it “detailed” — the FCC could be indicating that anysupplementary material not included in the Form 470 itself (including text in Item 13) could or would be considered an RFP.
Interestingly, this expansive view of an RFP is reflected in the answer to a request that Washington’s consultant had made to USAC in 2011 to define an RFP. USAC’s response was that it “does not have a specific definition for a Request for Proposal. Any document that provides information with the intention of receiving bids for specific services is technically an RFP.” Somewhat confusingly, USAC added that “Even the 470 itself can be considered an RFP if you do not have a separate document for this purpose.”
To get a better understanding of what the FCC’s decision really means, it is useful to examine Washington’s appeal itself which includes a copy of the supplementary documents in question. The documents are indeed quite detailed, including:
- A one-page summary addressed “To all interested vendors” of services being requested and key bidding dates
- A two-page summary of district standards
- Six pages of information on Internal Connections and Basic Maintenance scope of work requirements
- Three appendices including a parts list for an infrastructure upgrade, a list of existing network equipment, and a list of new equipment needed
- Eight pages of Instructions to Bidders
- Thirteen pages of bid forms for specific services
- Five pages of forms for bidder information
- Four pages of forms for payment and performance bonds
Regardless of what a strict legal definition of an “RFP” might be, USAC and the FCC might be excused for considering the documents in this particular case to be effectively equivalent. The open question is how USAC and/or the FCC might rule if an applicant offered to provide substantially less descriptive material to potential bidders.
The moral of the Washington decision is to be careful when offering or providing supplementary documentation to bidders in connection with a non-RFP version of a Form 470. When in doubt we recommend filing an RFP Form 470. To be really safe, file a parallel non-RFP Form 470.
E-Rate Updates and Reminders
FCC Shutdown Plan:
Last Friday, the FCC released a Plan for the Orderly Shutdown Due to Lapse of Congressional Appropriations. The plan, which would take effect October 1, if there is no Congressional solution to the debt crises, would effectively furlough 98% of the FCC staff as of midday Tuesday. USAC, which is not funded through Congressional appropriations, should not be directly affected by the shutdown except — and this would be an important exception — for activities relying on FCC action and/or guidance. Hopefully, this plan will not be needed.
FCC Public Comment Schedule:
Reply comments to the FCC’s Notice of Proposed Rulemaking: Modernizing the E-rate Program for Schools and Libraries (FCC 13-100) are due by October 16, 2013.
As a review tool, we have posted an E-Rate 2.0 NPRM Initial Filings Excel workbook on our website which provides links to all the initial comments in a structured format. More recent filings on the E-Rate 2.0 NPRM are available on the FCC website, accessible through the ECFS Search screen. Simply enter “13-184” in the Proceeding Number field, and push “Enter.”
FCC Cybersecurity Forum:
In recognition of October being Cybersecurity Awareness Month, the FCC’s Consumer and Governmental Affairs Bureau will host a forum and hold technology demonstrations dedicated to cybersecurity issues consumers face, with a particular focus on safeguarding children on the Internet. The forum will take place in Washington, DC on October 1, 2013. Should a government shutdown occur on October 1st, the forum would undoubtedly be postponed.
SLD Fall Training Beginning:
The SLD will begin its 2013 fall training schedule with a one-day workshop in Washington, DC, on Monday, September 30th. The agenda and presentation slides for the workshop are posted on the SLD website
Nominations Sought for USAC Board Positions:
The FCC issued a Public Notice (DA 13-1952) seeking nominations for six positions on the USAC Board of Directors. All six are for slots currently filled by Board members whose terms expire December 31, 2013. The two most important positions from an E-rate perspective are for the representative for the libraries (currently held by Anne Campbell, Chair of the Schools and Libraries Committee, representing the National City Public Library in California) and for one of the three representatives for the schools (currently held by Daniel Domenech, representing the American Association of School Administrators). Both current members are eligible for reappointment.
FOIA Request for Learning-on-the-Go Reports:
The FCC notified participants in the FY 2011 Learning-on-the-Go (“LOTG”) pilot program that it had received a Freedom of Information Act (FOIA) request for copies of the participants’ interim and final reports. The FOIA was filed by the North American Catholic Educational Programming Foundation.
Given the interest in the wireless off-campus student Internet access pilot projects, the FCC plans to place all the interim and final reports received in the LOTG docket, WC Docket No. 10-222, in the FCC's publicly accessible electronic comment file system (ECFS). We expect this to occur later in October. We are also awaiting the release of the FCC’s final report on the LOTG pilot program.
Schools and Libraries News Brief Dated September 27 – Applicant/Provider Eligibility
The SLD News Brief for September 27, 2013, reviews the basic eligibility requirements for schools, libraries, and service providers to participate in the E-rate program. For existing applicants and service providers, this is very basic information.
The weekly “Tip,” however, is timely. It reminds applicants that today, Monday, September 30th, is the last day to request an extension (if needed) of today’s deadline for the delivery and installation of non-recurring services.