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Wednesday, June 11, 2008

Government lawyers on my side

Man, I love the latest appeal from the Bureau of Indian Education (BIE)! They made two arguments that I would love to see them win.

First, they said that other government procurement processes, even if they differ from the FCC process, should satisfy the "competition" requirement. The BIE is talking about federal rules, but imagine if the FCC said following federal or state public contract law satisfied the competition requirement. Suddenly, only private schools would have to file a Form 470, since public schools and libraries already follow state public contract laws.

The other argument is one that could make it more difficult for USAC to COMAD. Apparently, in the absence of evidence to the contrary, it should be assumed that public officials acted conscientiously. (I know the idea of assuming that public officials are conscientious just made some of you blow your morning coffee out through your nose, but that's what the law says, according to the BIE.)

The FCC has been approaching this point of view, for example when they remanded the "pattern analysis" denials, but this idea opens up a new line of defense against COMADs. Up until August 13, 2004, when the Fifth Report & Order was released, the only records that applicants were required to keep were records they would normally keep. So USAC shouldn't be able to COMAD any application before that date, unless the applicant happened to keep records that demonstrate that officials broke the rules.

Let's take this further: while the Fifth Report & Order listed many documents that must be retained, it didn't actually say that all those documents must be created. For example, all RFPs must be retained, but RFPs do not have to be created. So if an applicant didn't create a bid evaluation worksheet, can they say there is no evidence that officials were not conscientious, so USAC must presume that they selected the most cost-effective vendor, with price as the primary factor?

As I see it, the FCC has two choices: either scrap the 470 process, or come up with a real set of procurement rules, like the Federal Acquisition Regulation (FAR), which is about 1900 pages long. Currently, the FCC is making up the rules one appeal case at a time, which benefits no one.

In any case, it sure feels good to have government lawyers making these arguments.

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