A COOK REPORT EXTRA -- DOES NSF $18 MILLION A YEAR SOLICITATION VIOLATE PL

[David Farber <farber () central cis upenn edu>]

[ As usual, opinions pro and con to the position taken by the following are
welcome. Also, as usual, the position taken below does not necessarily
reflect mine. Many of the things I report I strongly disagree with but I
respect Voltaire's comment .. DJF]


From: cook () path net (Gordon Cook)
Date: Thu, 14 Oct 1993 00:41:38 GMT
Subject:  for int people




DOES NSF $18 MILLION A 
YEAR SOLICITATION VIOLATE PL 102 -194? 


TECHNOLOGY DEVELOPMENT SO RAPID THAT COMMERCIAL PURCHASE OF HIGH SPEED
BACKBONE AND OTHER SERVICES MAY BE LEGALLY REQUIRED
 
The Legal Dilemma


Public law 102-194 otherwise known as the High Performance Computing and
Communications act, sec 102 NREN (c) 8 states:


"the network shall be developed by purchasing standard commercial transmission
and network services from vendors whenever feasible and contracting [italics
added] for customized services when not feasible in order to minimize federal
investment in network hardware."


My proposition:


the 18 million dollar a year National Science Foundation funded solicitation
for (1) a supercomputer center based backbone; (2) network access points; (3)
routing authority; and (4) inter-regional connectivity fund issued by NSF on
May 6 1993 and expected to be awarded in December or January or February
appears to contravene this section of PL 102-194 and hence may be illegal.
Therefore, the NSF should withdraw the solicitation forth with or be forced to
do so by a Federal judge.  They should also be forced to terminate the current
backbone agreement with Merit (ANS) on April 30 1994.


Technology Has Passed the Gov't By


Why? Because the National Science Foundation is now one full year behind the
schedule it imposed upon itself in December 1991.  In the meantime everything
that it proposes to do can be bought commercially.  The pace of technology
development has swept past the plodding Federal bureaucracy.  The culmination
came last week when Sprint and the Minnesota Supercomputer Center announced a
turnkey commercial service to connect anyone willing to pay the bills via a
high speed ATM network operating at 45 megabits per second to the Minnesota
Center.  The 45 megabit ATM connection is available now.  In the first quarter
of next year they will introduce integated custom programs for various
industrial applications.  For those who desire it connection at 155 megabits
per second using ATM and SONET rings has been promised by Sprint before the
end of next year.  (If the NSF solicitation is permitted to stand, by the
NSF's own timetable - a year for transition-  it will likely be April of 1995
before the new network begins to operate.)


NSF Should not Be 
Allowed to Sell  Advantage to Lowest Bidder


The NSF is proposing to hang a Rube Goldberg like national data networking
architecture of a 155 megabit per-second backbone connecting the five
super-computer centers it funds.  (Sprint you can be sure would be happy to
connect each of those centers to its commercial service.)  The solicitation
leaves the process open to what in the past has been unmonitored cost sharing.
This, along with an NSF unwillingness to answer my formally submitted question
as whether it would allow the winner exclusive resale of commercial access to
a taxpayer funded backbone, has left open the possibility that the problems of
the last three years could be repeated again for the next five.  (The problems
are complex but boil down to lack of accountability and lack of a level
playing field.)


Network access points will be run by an awardee who may charge all comers for
the unknown cost of interconnecting.  A routing authority will also be an
awardee.  It is not clear whether there will be charges for its services too.
There will also be up to $4 million a year spent for inter regional
connections to replace the current backbone.


The CIX networks may be ready to do all this for what is now the standard
inter connect fee of $10,000 per commercial network - a likely small fraction
of what the NSF wishes to spend.  The cost of interconnection at 155 megabits
is not clear but it will likely much less than that of the national data
network architecture chosen by the NSF.  Besides not every network will need
to or want to interconnect at that speed.  


Since May the NSF has let it be known that they are getting out of the
provision of ordinary network subsidies because the network is commercially
mature.  If this were true, one might ask why the amount the NSF proposes to
spend on the network will increase from 12 million to 18 million per year??
If I think unkind thoughts, I suspect the answer could be a desire to keep the
technology pork barrel flowing.  Are those who are getting federal funds in
the context of an unstructured cooperative agreement happier when they have no
rigid contractual requirements to live up to?  A kinder interpretation might
be that the NSF simply unaware of what is now commercially available.


An Editorial Point of View


NSF Proposal Not in 
Public Interest and Should be Withdrawn


PSI, UUNET, Sprint, and perhaps even AT&T and MCI can offer any of these
services on a bidable, contractual, commercial basis.  Regional networks
should be told that the backbone will shut down April 30, 1994 and should be
invited to purchase interconnection in the commercial market.  If the NSF
wishes to use declining subsidies over a 5 year basis to help this transition,
fine.  If the supercomputer centers run by NSF wish to purchase a connection
to the Sprint - Minnesota service - fine.  If the NSF wishes to subsidize
these commercial connections - fine.  If the NSF Office of General Counsel
doesn't see the hand writing on the wall, a federal judge should grant an
injunction that forces the issue.  April 30, 1994 should be adequate time for
a transition.  If it is not, the parties affected could argue their cases and
seek a 90 day extension.


Other than possibly illegal, it seems like poor policy to continue to let the
same agency and the same people continue to make the same kind of "loosey
goosey" cooperative agreements that now result in the government paying over a
million a month for a network with a peak speed of 22.5 megabits and a
generally operational speed much slower than this.  Such an network could now
be acquired in the commercial market place at a fraction of the price.


The market place is taking care of the high end quite nicely and has done so
with such rapidity that it may have caught the NSF off guard.  But this is no
reason for them to continue to pursue a policy that is now ever more
questionable because US industry is moving so fast.  The NSF should not be
getting ready to add 5 years of distortion to that marketplace.  The funds not
used on transitional subsidies should either be returned to the treasury or
used for an expansion of the connections programs to extend the infrastructure
to sectors that the market place may not yet serving at initially affordable
rates.  Programs to help develop software to achieve some of the same level of
innovation at the small systems level (i.e. successors to slip and ppp could
also be worthy of support.)


In the interest of promoting the lofty goals announced by the administration
in its NII vision statement, is it time for the CIX as a whole or for CIX
members individually to move swiftly by legal means to end the faulty policy
of a government bureaucracy that some might say appears more interested in
perpetuating its role than in recognizing what is happening commercially and
figuring out how to extend such development rather than impede it by a
solicitation that seems totally out of sync with the public interest?  


What is the public interest?  That government should recognize that its
procedures appear no longer able to lead technology innovation in the
development of a high speed network and, having recognized this, do everything
to make the universal access the administration called for in its NII vision
statement a reality.  The success of government involvement appears to have
been reached by the end of 1990.  The critical mass that has led to the
current astonishing and commendable growth of the network had been ignited.
Is it time for the NSF to respect Sec 102 (c) 8 of PL 102 -194 and get out of
the way of the high end of network development?  If the congress and
administration can't see this and the NSF won't see it, commercial interests
knowing the law could take legal action on their own --possibly further
delaying the wise application of public funds.


Monday October 11 at 3pm.


We have just gotten word that the CIX, some of whose members had researched
and prepared a legal challenge for the NSF General Counsel , decided not to go
forward because of the strong protests of several mid-level members who felt
they would be loosing gov't money if they signed. If doing this with the
support of some CIX members and not others, would have destroyed the CIX, it
was probably wise not to procede.  Someone - EFF, CPSR, Telecom Policy
Roundtable, or a Corporation ought to act and act now in place of the CIX.
Why?  Because, among other things, the way will be wide open for anyone who
doesn't like the results to challenge the award after it is made.


POSTSCRIPT FOR INTERESTING PEOPLE


LET ME EMPHASIZE AGAIN THAT I AM *NOT* TRYING TO DESTROY TRANSITION MONIES FOR
MID-LEVELS, NOR AM I AGAINST THE NSF USING TAXPAYER FUNDS FOR EXTENDING
INFRASTRUCTURE TO THOSE NOT PRESENTLY SERVED BY THE MARKETPLACE.  HOWEVER
SOMEONE NEEDS TO DO SOMETHING TO GET CISE'S ATTENTION SO IT DOESN'T WIND UP
BEING RIDICULED AS THE **PORK BARREL OF LAST RESORT** FOR FUNDING A HIGH SPEED
NET BACKBONE THAT NOW CAN'T POSSIBLE START OUT AS LEADING EDGE TECHNOLOGY.
HPCC SHOULD NOT JOIN THE EARMARKING GAME.


I WELCOME REPLIES TO THIS LIST OR TO ME PERSONALLY..... with the understanding
that I would wish to consider them for a published discussion in the November
COOK Report.


Also if anyone wishes to contact me by phone (609) 882-2572, I have a cable tv
consulting assignment that will render me unreachable between Thurs Oct 14 at
2:30 pm and Friday Oct 15 at 8 pm.  I don't mind being called on weekends.
----------------


PS at telestrategies when I presented this to 125 people on Tuesday,
someone from a regional said lets let the proposal procede because there
have been enough delays..... my response is if the NSF makes this award it
can and should be challenged immediately in court and THAT will be a delay
that will be WORSE.
However let me be very clear that any withdrawl must be accompanied by a
plan for the speedy termination of the MERIT agreement.