A Practical Navigator for the Internet Economy

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 lose 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 a ssumption 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.