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Tuesday, December 06, 2011

RFPs on Qo'noS

The latest appeal decision from the FCC further clarifies what "open and fair competition" means, and .  The FCC granted 5 appeals, and upheld 6 denials, confirming that when it comes to competitive bidding, the FCC is more stingy with waivers than it is with other violations.

The most interesting case was Klamath-Trinity, and not just because it sounds like a Klingon Catholic school.  The FCC said that the competition wasn't fair because:

  1. Klamath-Trinity's RFP contained 8 pages of network diagrams, etc., 
  2. The Form 470 didn't say that an RFP was available.
  3. The 470 was general.  (I checked the 470 in question, and the description was pretty brief: "Connecting 7 Schools with 123 rooms with approximately 435 computers.")
  4. "Klamath-Trinity said it only provided the RFP to parties that requested it."
That fourth point is troubling.  I mean, to whom should the Klingons for Christ have sent the RFP?  But later in the decision, Hesperia Unified (which sounds like a benevolent coalition of planets in an Asimov novel) gets a waiver, because it provided copies of the RFP to all bidders.  The implications seems to be that the Klingons didn't send out the RFP unless a potential bidder specifically said, "Show me the RFP."  I doubt that's how the Klingons behaved, but that seems to be the FCC line of reasoning.

Alas, this decision doesn't get down to specifics.  It leaves two vital questions unanswered: 
  1. How much information can applicants give out in response to service provider questions? 
  2. What does "RFP" mean?  
 The FCC said that 2 of the applicants (whose names are not SciFi-ish, so I won't mention them) didn't violate bidding rules, because they "merely provided guidance directing potential bidders to already-filed FCC Forms 470."  Hesperia did violate rules by giving all bidders info that was not on the 470 (but got a waiver).  Apparently, any information given to service providers which goes beyond what is on the 470 constitutes an RFP.

Since this decision also reinforces the requirement that both the 470 and the "RFP" (whatever that is) be available to bidders for 28 days before the contract is signed, and this decision seems to be saying that responses to vendor questions can be considered an RFP, applicants would be wise not to answer any questions from bidders.  Because if you answer a question, you have to restart the 28-day waiting period.

So a fair and open bidding process is one in which applicants do not answer questions from potential bidders.

Things are even uglier when we bring in state rules.  If I check the "I have an RFP" box, but whatever info I give vendors doesn't meet the state requirements for an RFP, the losers can get the bid thrown out under state law.  It seems to me that the FCC has left applicants with two choices: either refuse to give bidders any information beyond what is on the 470, or publish an RFP which complies with state laws, which forces applicants into a very delicate dance of satisfying both state and FCC requirements for competitive bidding.

1 comment:

  1. SP Guy5:36 PM

    The real 'fun' happens when 'no rfp' is indicated on the 470 and then provider, at (and only at) the walk-through issues an RFQ or RFI. After all, it wasn't an RFP, so no there are no violations.