Local governments all over the country are choosing ISP partners and making grants from ARPA funds to help bring better broadband. Today’s blog is a warning to handle the awards of such monies in a way as to be safe from challenges from ISPs you don’t choose to fund. I’ve already heard of a few cases where such challenges have been mounted.
The reason for issuing this warning is that ISPs that don’t get funded can ask to see all of the records that are part of the process of choosing a partner and can sue a local government if they don’t believe the review and award process gave them a fair chance to win the awards.
It’s important to remember that although ARPA money came to local governments from a federal grant program, this is still local government money, and the process of spending the money is subject to at least some portion of government procurement rules and certainly is subject to all rules having to do with openness and transparency of records. An ISP merely needs to ask and can see all emails, correspondence, and any document created as part of the process of choosing who to fund.
What complicates this more than other government spending is that local governments are including broadband committees in the decision-making process of picking partners. These are folks who are not officially part of the government and are probably not familiar with government procurement rules. They probably don’t know that things they say in an email or things they write in notes can possibly be discovered by others.
This is an unusual circumstance because governments don’t normally include citizens directly in the process of spending government money. But local broadband committees have put so much energy into bringing a better broadband solution that it wouldn’t seem right to not have them be part of the process of deciding who will be the funding ISP in the community. It’s fairly obvious that whatever ISP is given funding to bring fiber to a rural area will effectively be the broadband monopoly provider there for many decades to come – so it’s an important decision.
One of the things I see a lot is local communities issuing invitations for ISPs to propose to get the funding. These might be in the form of an RFQ (request for qualification), an RFI (request for information, or an RFP (request for proposal). Be careful how you write these invitation documents because the government is going to be bound by whatever you tell ISPs about the selection process. My advice is to say nothing about how winners will be chosen.
For instance, if an RFI says that ISP winners will be chosen by a ranking scale based upon certain criteria, then the local government is bound to follow that ranking process. A local government can’t say it will pick somebody in a certain manner and then do something different. If ISPs are ranked on a grading scale, be aware that ISPs can later ask to see how they were graded – and that is where the chance comes that an ISP will take exception to the scoring process.
The worst thing that can happen is to have already chosen the winner before going through the process. There is a good chance in such a case that there are emails or other evidence that the choice was made before the process even began.
I strongly advise local governments to include an attorney and perhaps a trusted consultant who has been through this before in the process. A selection committee needs to get the speech about being fair, open, and transparent and warned not to create written records that are derogatory to any of the ISPs in the process. Governments have a legal obligation to be fair and aboveboard when choosing anybody who will receive public funding. I know that picking ISP partners feels like it is an extraordinary thing, but it is not somehow outside the normal government procurement processes.