[11352] in Commercialization & Privatization of the Internet
April COOK Report on legal challenges to HPCC backbones published tonight
daemon@ATHENA.MIT.EDU (Gordon Cook)
Wed Mar 30 05:03:40 1994
From: cook@path.net (Gordon Cook)
Date: Wed, 30 Mar 1994 04:42:06 GMT
To: com-priv@psi.com
The April COOK Report on Internet - NREN is published tonight.
SPRINT VERSUS MCI & NSF: HPCC BACKBONE AWARDS DRAW PROTESTS, pp. 1- 13.
We examine very closely the MCI protest of Sprint's win of the ESnet backbone,
Sprints filing of February 28 with GAO in protest over the MCI preaward of the
vBNS, and finally Sprint's March 15 filing in opposition to NSF's Motion for
Summary Dismissal. (Length just over 12,000 words.)
We learn that MCI has a fine-tuned legal department that, when it wants to
strike, moves swiftly and professionally. We also learned some points behind the
evaluation process that MCI, understandably, seems to have ignored.
We see that Sprint has been caught off guard, has not had its legal department
tracking these developments and when it decided to protest was left with only a
few days to build both its strategy and supporting case. In its February 28
appeal to GAO it had to first establish that GAO had jurisdiction. To do this
it had to show that the NSF solicitation should have been for a contract and not
a cooperative agreement and to explain why it went along with the solicitation
process rather than challenge it initially. It also tried to establish GAO
jurisdiction of the grounds that NSF allowed a conflict of interest to exist
with MCI subcontractor ANS having a board of directors member who was also a
member of the National Science Board. Unfortunately for Sprint this conclusion
was false.
NSF responded with a Motion for Summary Dismissal and on March 15 Sprint replied
with a 7,000 word rebuttal. This document is vastly improved. Sprint now
argues that while the NSF may have had the right to run the solicitation as a
cooperative agreement, such solicitations must be run in a competitive manner.
It accuses NSF of pledging to its own Inspector General to run the VBNS in
accord with a strict acceptable use policy and then when the intent to award is
announced, abandoning that policy by allowing MCI commercial resale of the vBNS.
It introduces legal precedent that says if a procurement under a Coopartive
Agreement is run in a non competitive manner such procurement must then be
treated by all parties according to contract rules and not those that govern
Cooperative Agreements. Thus GAO has jurisdiction and its complaint is timely
because, when it decided to compete under the C. A. rules, it could not have
been expected to know that the NSF would corrupt the procurement process!
As part of its argument it says that NSF is violating the intent of PL 102-194
by using Federal money to allow a large profit making Federal company to play
technology catch up and, worse, to fund the development of a commercial service
by that company. Its language becomes quite scathing.
However, when Sprint then says that the change by NSF in the application of
acceptable use policy to the backbone is critical to its case, it takes quite a
chance. For it apparantly is unaware of a public statement by Wolff that will
allow him to claim that he not only is following AUP but is doing so with
Congressional intent behind his policy. However, we reveal here for the first
time that when Wolff was asked by FOIA for documents that would show NSF or
explicit Congressional backing of his interpretation, he responded that he had
none.
Sprint says: "The actions of the NSF, which exceed the requirements and
limitations of the Act which the NSF claims to be implementing, should be
declared illegal. The NSF should not be permitted to hide behind legislation
which permits flexibility and maximum discretion in obtaining goods and services
through cooperative agreements rather than procurement contracts when the agency
has demonstrated such a cavalier disregard for the laws of Congress and such
abuse of the public trust. In this case, the agency should not be entitled to
shield its actions from review through its claimed ability to award cooperative
agreements for a "public purpose"--the public is far better served by imposing
some accountability on this errant agency."
The third area is Sprint's conviction that the solicitation had been marred by
conflict of interest. Having been "burned" with its first formulation of this
approach it is somewhat more cautious. Submitting some materials from the COOK
Report as an attachment it says in effect that this is an area that it has under
continued developement.
The NSF in its March 16 rebuttal says that it finds Sprint's arguments in the
first two areas 'spurious'. In the third area it somewhat derisively dismisses
Sprint for bringing up the "report" of a private individual, Gordon Cook. In
only two pages it does not attempt to refute Sprint's basic legal argument.
whether it doesn't because it can't or it feels that it doesn't need to is not
clear.
Sprint may loose within GAO - hung by its thumbs on the weaknesses of its first
filing. We hope not. Why? Because it seems to be prepared to seek
adjudication, we hope in Federal Court if need be, of some of the most
significant policy issues on which we have been focusing for more than two
years.
We are puzzled by the NSF's insistance on once again granting its intended
awardee commercial resale of a government paid-for backbone. We wonder why
granting this favor seems so important to NSF, OSTP and the Administration for
we suspect that the viability of Sprint's protest hinges on it. Sprint's next
decision date with GAO is April 8.
PROTESTER'S OPPOSITION TO RESPONDENT'S
MOTION TO DISMISS pp.14-19.
The Complete Text of Sprint's March 15 Submssion to GAO, We publish the complete
7,000 word text of Sprints submission.
CONTROVERSY OVER NSF NETWORK ACCESS POINTS
UUNET AND PSI QUESTION NSF MOTIVES - SAY THEY
SEE NO REASON TO CONNECT, PP. 20-21.
THE VBNS: WHAT MCI OFFERED THAT AT&T &
SPRINT DID NOT A SOURCE RECOLLECTS CONTENT OF MERIT
REVIEW PANEL FINDINGS, p. 21.
A source who has been permitted to read the Merit Review Panel Report says that
while there was some significant disagreement both about the NAPs and vBNS, that
AT&T and Sprint both appear to have suffered in making what turned out to be an
unwarranted assumption that the NSF wanted an off- the-shelf high speed ATM
network The source shows how MCI seems to have used its almost seven year old
relationship with NSF to ensure its customers continued comfort by having a
better idea than anyone else what continued "leadership in high speed
networking" meant.
COREN TEST NETWORK IN OPERATION, p. 23.
A source reports that CoREN members have installed a network to test routing
using their commercial connectins to the NSF/ANS backbone.
LATE NEWS: NSF ON AUTO -PILOT?
We report that our FOIA request for documents detailing discussios on NSFnet
privatization, commercialization, ANS, MERIT, IBM etc between NSF Directors
(Lane, Massey, Bernthal, and Brownstein.) came up empty We are headed in a new
direction (Lindberg at NLM).
UUNET Initiates FOIA
Lawsuit Against NSF
When we were alerted to UUNET's action as the result of NSF asking if we minded
their release of our May 1993 solicitation questions to UUNET as result of a
UUNET Foia Lawsuit, we said that since we had already published them of course
UUNET was welcome to them. At that point we put in our own request and in only
18 days NSF responded with a fat package of all or nearly all questions asked
about the solicitation last May and June. Examination shows that the NSF was
asked many questions on its intentions for commercial use of the vBNS and in
other areas - questions that it declined to answer.
_______________________________________
Coming in May- June: Part 2 of Intrernet Plans for Princeton Regional Schools.
(We had no room this month.) Feature article on the CIX and its growing pains.
In depth interview with Bill Washburn, Executive Director of the CIX. In May we
are spending more than 3 weeks in Russia. Before leaving we shall published a
combined May June issue of the COOK Report.
___________________________________________________________________
Gordon Cook, Editor Publisher: COOK Report on Internet -> NREN
431 Greenway Ave, Ewing, NJ 08618
cook@path.net (609) 882-2572
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