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UNITED STATES DEPARTMENT OF COMMERCE National Telecommunkatlons and

Information Administration

Washington, DC 20230

. Mr, Chuck Reed

Mayor, City of San Jose 200 East 'Santa Clara Street San Jose, CA 95113

OCT 01_

Mr. Jeffrey V. Smith,

County Executive, County of Santa Clara 70 West Hedding Street

San Jose. CA 95110

Dear Mayor Reed and County Executive Smith:

The Department of Commerce (DOC) and the National Telecommunications and Information Administration (NTIA) have received your letter regarding the San Francisco Bay Area Wireless Enhanced Broadband Project (BayWEB), which recently was awarded a grant under the Broadband Technology Opportunities Program (BTOP), Your letter requested that the grant award for the BayWEB project be suspended or postponed until concerns regarding the procurement and vendor selection process have been addressed.

As part of the BTOP programmatic review, NTIA reviewed the Memorandum of Understanding (MOD) dated July 1,2007 between the five local governments that created the Bay Area Urban Area Security Initiative (Bay Area VASI). According to the MOU~ the Bay Area VASI General Manager (GM) is empowered by the MOV participants. including the City of Ban Jose and County of Santa Clara, to lead and execute interoperable communications initiatives on behalf of its members. The Bay Area Regional Interoperable Communications System (BayRtcS) was estahlished in 2QQ7 to take advantage of the

regional cooperation permitted by the Bay Area VASI.

It is NTIA~s understanding that. consistent with the authority in the MOU~ the VASI OM authorized the BayRICS Policy Group, the governing body of BayRICS, to lead apublic safety broadband effort, and selected the Alameda County Sheriff (Sheriff) to the head the effort. Our Infonnation indicates that, acting in this capacity on behalf of BayRICS, the Sheriff entered into a Public Private Cooperative Agreement on March 15, 2010 with Motorola, Inc. (Motorola) to partner on the construction of a regional 700 MHz wireless mobile broadband network known as Bay\VBI3. As directed by that agreement, Motorola submitted a l;3TOP grant application for the BayWEB project (EGI~ 7309).

The N otice of Funds Availability (Second NOF A)~ published in the Federal Register on January 22> 20 1 O~ outlines the application and review process for all Round Two BTOP applications. The application submitted by Motorola was evaluated and considered in accordance with the procedures and requirements established in the Second NOFA.. Motorola was selected for a grant award based on an objective review pursuant to the criteria in the Second NOFA. In making this award, NTIA relied upon a wide array of factors and evidence. including the endorsements of the City of San Jose and County of Santa Clara) as evidenced by their participation in th(MOU and separate correspondence encouraging NTlA to, award the grant. Further, NTIA found no reason to question the process) described. above, by which your jurisdictions and others chose to seek and benefit from- BTOP.

As with all aTOP grants, NfIA will oversee the BayWEB project to ensure that the grantee, Motorola> carries out the project in accordance with the terms of the grant award and any modification terms approved by NTIA. NTIA is dedicated to the efficient and effective disbursement of all grant funds made available under the American Recovery and Reinvestment Act' of 2009. To date, we are in receipt of no factor that calls' into question Motorola's ability or intent to execute this project in accordance with the grant terms. While we have no authority over the procurement practices of the City of San Jose and County of Santa Clara, your participation in and support of the BayWEB project, as described above and as reiterated in your more recent letter, reinforces our conclusion that no postponement or suspension of the grant is warranted. NTIA looks forward to continuing to work with the grantee and, as necessary, other stakeholders for the benefit of the Bay Area citizens.

Thank you for sharing your concerns regarding this project. If you have further questions, please contact Lance Johnson, BTOP Federal Program Officer, at (202) 482·5032.

" .

Sincerely,

Anthony G. Wilhelm

Director, Broadband Technology Opportunities Program

2

County of Santa Clara

City of San Jose

October 12, 2010

Sent Via E-Mail

Anthony G. Wilhelm

Director, Broadband Technology Opportunities Program United States Department of Commerce

National Telecommunications and Information Administration Washington, DC 20230

Dear Mr. Wilhelm:

We appreciate your response to our letter regarding the BayWEB project. However, it appears, that you have been misinformed about a number of isS'l!.€S regarding Bay Area VASI (BAVAS!). Your letter makes a number of assertions about BAUASI which we believe are incorrect. Indeed, it is this kind of misinformation that gives rise to our

concerns about the grant process. '

First, the BAUASI General Manager (GM) has no authority to act independently of the Approval Authority to commit the BAUASI, or its member agencies, to any project, According to the BAVASI Memorandum of Understanding, "The General Manager shall be responsible for implementing and managing the policy and program decisions of the Approval Authority, and performing other duties as determined and directed'by the Authority (emphasis added)." To the extent the MOU authorizes the BAUASI GM to establish working groups or other advisory groups, the authorization is made' for the purpose of facilitating input and recommendations to the Approval Authority. The BAUASI Approval Authority never took action to approve the BTOP application or to direct the GM, or BayRICS, to partidpatein the application. Indeed, the Approval Authority was never provided with all of the information required to, understand 'the application or make the policy and program decisions regarding the BTOP project. Additionally, the Approval Authority was never convened to vote to support the BTOP project. It is apparent that NTIA has been misled to believe that a commitment was made that has not been made.

United States Department of Commerce Anthony G. Wilhelm

Director, Broadband Technology Opportunities Program October 12, 2010

Page 20£4

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Letters of support were solicited from Santa Clara County and from the City of San Jose by the UASI General Manager under the clear understanding that she was requesting these letters before the details of the BTOP grant application had been finalized and before specific information would be made available to potential participants. We supplied the requested letters in order to assist the regional goal of implementing a public safety Broadband initiative, and to show our support of that concept. Our letter did not and could not have supported the specifics of the actual BTOP application as it had not yet been completed and we had not been provided with the details of what it included. At the time our letters were drafted, the BAVASI GM was fully' aware of and acknowledged the fact that we were requesting additional information so that we could make an informed decision regarding our participation ill this specific initiative.

The process followed and the selection of Motorola as the region's partner for the BTOP grant program was inconsistent withlocal government standards or practice for this type of procurement or vendor selection. It was coordinated" supported and highly influenced by the BAVASI GM and members of her staff. The BAUSAI GM selectively excluded key members of the Santa Clara County area from critical discussions and the decision processes in spite of our clear expression of interest in participation so that we could better understand the details of what was being proposed.

To this day, the Approval Authority has not been allowed to review all of the documents which comprised the "procurement process" (i.e., the em.ail request and responses) which preceded Motorola's designation as a sole source for the project and the recipient of over $50 million of federal funding. Our repeated requests for transparency and openness have met with obfuscation, misinformation and deliberate stonewalling from the GM and BAVASI staff. We made a FOIA request to the Department of Commerce in hopes of getting copies of documents necessary to determine what has happened. We have yet to receive these documents.

Because of our continued requests, early last week wefinally were able to obtain some preliminary information about the Motorola project design which heightens our concerns considerably, It appears now that our local agencies will be required to use

, .

their own General Fund dollars to make sites ready for installation of the project. This

information was never shared with us prior to the grant submission. We also were made acquainted with the scope of ongoing obligations for maintenance of the project subsequent to build out, again a General Fund obligation that was never shared with

United States Department of Commerce Anthony G. Wilhelm

Director, Broadband Technology Opportunities Program October 12, 2010

Page30f4

the BAUASI Approval Authority members or with other local jurisdictions who would be participating. We take seriously our responsibility for the strained resources of our local government General Funds and can certainly make no such commitment of resources without the specific action of our own governing bodies.

Your letter makes it apparent that the NTIA relied upon the assertion that BayRICS was a partner in the application as an important reason for the approval of the application. In our opinion, this is a very significant problem. The BayRICS Policy Group was a creation of the VASI General Manager. We believe that it was created to demonstrate that there was a local governance group established that was supporting this application and which would assist in the implementation, management and sustainment of any system that would be built. The BTOP proposal stated that there was a public/private partnership between Motorola and an individual Agency (Alameda County) who was acting on behalf of the BayRICS Policy Group. It further states that the public/private partnership between Motorola and the Bay Area will be overseen by the BayRICS Policy Group. However, as of March 26, 20101 the date that the application was submitted, the BayRIeS Policy Group had never met. In fact its' first meeting was not held until three months later in July 2010. In March 20101 the composition of the Group had not even been finalized. Since that Group had not been formed and had never met at the time the application was submitted, statements within the BTOP application which indicate that the Policy Group was allowing anyone to act on their behalf, or that they had committed to oversee any. aspect of this project are dear misrepresentations. As of this date, more than 6 months after the application was submitted, there is still a lack of clarity regarding the composition, role and authority of what was described in the application as the BayRICS Policy Group. You should know that there is no legal commitment from many of those agencies to participate in this application or the project. In our minds, that is a problem that is 1ik~ly to cause the project to ultimately fail.

And finally, we are greatly troubled by the fact that the BAUSI GM and four of her senior staff are prior employees of the successful grantee, Motorola. We believe that this fact alone violates specific requirements of the BAUASI Memorandum of . Understanding. Additionally, this fact risks compromising the project and the grant process. Without a formal independent investigation, we cannot be sure whether or not local, state, and federal laws or regulations have been violated. Consequently, we are

United States Department of Commerce, Anthony G. Wilhelm

Director, Broadband TeclinologyOpporturdties Program October 12, 2010

Page4of4

moving forward with a request for an investigation by appropriate state and federal

entities. .

We recognize that the questionable actions of the BAUASI General Manager, acting outside her scope of responsibility, and being involved in the promotion of an application that was never approved by the BAUASI Approval Authority .. has placed the NTIA in a difficult position. Nevertheless, we believe that the best way to proceed is to replace secrecy with transparency/ to acknowledge the mistakes that have been made at the local Ievel and to do the best that we can together to try to salvage a valuable project. We hope to have your assistance in getting all the facts.

~~~Q

Chuck Reed Mayor

County Executive

c Honorable Gary Locke, Secretary of U.S. Department of Commerce Honorable Todd Zinser, Inspector General

BAUASI Approval Authority Members /'

Emily Harrison, Deputy County Executive V

September 8,2010

Honorable Gary Locke Secretary of Commerce

U.S. Department of Commerce 14th and Constitution Avenue NW Washington, DC 20230

Subject:

Broadband Technology Opportunity Program (BTOP) grant award to San Francisco Bay Area

Dear Secretary Locke:

We are writing to request that you suspend, or postpone, the recent National Telecommunications and Information Administration (NTIA) BroadbandTechnology Opportunity Program (BTOP) grant award to the San Francisco Bay Area until concerns regarding the procurement and vendor selection process have been addressed and well understood. The process utilized to select the vendor for this project does not reflect our standard for accepted procurement practices.

Additionally, as one of the three Bay Area cities to petition the original FCC 700 MHz waiver, the City of San Jose joins with many other regional partners which have significant questions regarding the grant application process and the proposed implementation that need to be answered to ensure a successful project. Representing over two million residents, the participation of San Jose and the County of santa Clara is essential to the eventual success of this effort. Furthermore, in a letter dated June 7~ 2010 to Mr. Joseph Bissonnette, NTIA, the City of San Jose is on record of its support and desire to participate in BTOP.

We look forward to working with you and your staff in carrying out a transparent and fully coordinated STOP project that will help safeguard the lives and property of aU residents in the San Francisco Bay Area residents.

County of Santa Clara, 70 West Hedding Street, San Jose, CA 95110 City of San Jose, 200 East Santa Clara Street, San Jose, CA 95113

Honorable Gary Locke Re: STOP Grant September 8, 2010 Page 2

For more information please contact: Deanna Santana, Deputy City Manager, City of San Jose at (408) 535-8280; Teresa Reed. Assistant Fire Chief, City of San Jose, UASI Approval Authority Member at (408) 277-5457; Emily Harrison; Deputy County Executive, County of Santa Clara at (408) 299-5116; or Kirstin Hoffman, Director of Emergency Services, County of Santa Clara at (408) 808-7802. Thank you for your attention to this request.

Sincerely,

Chuck Reed Mayor

cc: Honorable Dianne Feinstein, Senator, California Honorable Barbara Boxer, Senator, California

Honorable Jerry McNerney, Representative, District 11, California Honorable Anna Eshoo, Representative, District 14, California Honorable Michael Honda, Representative District 15, California Honorable Zoe Lofgren, Representative District 16, California Honorable Ronald V. Dellurns, Mayor, City of Oakland

Honorable Gav[n Newsom, Mayor, City and County of San Francisco Debra Figone, City Manager, City of San Jose.

Dan Lindheim, City Administrator, City of Oakland

Emily Harrison, Deputy County Executive, County of Santa Clara Renee Domingo, Director of Emergency Services, City of Oakland Scott Frizzle, Director of Regional Operations, CaJEMA

Vicki Hennessy, Director, City of San Francisco OEM

Kirstin Hoffman, Director of Emergel)cy Services, Santa Clara County OES Rich Lucia, Undersheriff. Alameda County Sheriff's Department

Monica Fields, Deputy Chief of Administration, City of San Francisco Fire Department Teresa Reed, Assistant Fire Chief, San Jose Fire Department

Marek Gootman, Patton Boggs LLP

Attachment: June 7, 201,0 to Mr. Joseph Bissonnette, NTIA.

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