TR Daily Reports: FirstNet Approves Draft RFP, PN on Public Safety Entity Definition

The First Responder Network Authority (FirstNet) board today approved management’s draft acquisition approach and authorized the release of a special notice and draft request for proposals (RFP) documents. The board also approved the release of a public notice seeking additional views on the definition of “public safety entity.”

Acting FirstNet General Manager TJ Kennedy said at a special meeting, which was held via teleconference, that management plans to release the special notice and draft RFP documents April 27 and provide 30 days to submit any questions on the documents and 90 days to submit comments. The documents will be posted on the Federal Business Opportunities website at fbo.gov (Reference Number D15PS00295). Responses will not be made public.

Release of the draft RFP has been eagerly awaited by industry and the public safety community. Last month, the board delayed a vote on approving the release of the documents to provide additional time to answer questions raised by members of its Finance Committee (TRDaily, March 25).  FirstNet plans to issue a final RFP by the end of this calendar year.

In the public notice, the third to be released by FirstNet, the authority refines a preliminary conclusion concerning its definition of public safety entity and seeks comments. FirstNet said it believes that a subgroup or individuals within an entity, such as a utility, that respond to emergencies could fall under the definition of public safety entity without everyone at the organization, such as sales people, being defined as such. Comments on the public notice are due 30 days after “Federal Register” publication of the document. FirstNet will make the responses public.

“Today’s decisions by the FirstNet Board continue the significant progress FirstNet is achieving toward our goal of implementing the nationwide public safety broadband network,” FirstNet Chairwoman Sue Swenson said in a statement.  “We look forward to having a meaningful dialog on these two topics with the public safety community, state and local jurisdictions, territories and tribes, and potential offerors to move us along our strategic roadmap toward a final RFP and ultimately the deployment of dedicated public safety broadband network.”

During a presentation at today’s meeting, Mr. Kennedy provided an outline of the draft RFP documents, as well as the approach FirstNet is taking to solicit comment.  First, he said, FirstNet has expanded upon and provided more detail to its draft statement of objectives (SOO) that it released last September (TRDaily, Sept. 17, 2014), including providing some supporting documents.  Mr. Kennedy outlined FirstNet’s plan to deploy the network in five phases, with two expansions. In each phase, he stressed, there would be urban, suburban, and rural deployment.

“I think this balanced approach is going to serve our first responders best,” said Tim Bryan, chairman of the board’s Finance Committee. “I really endorse the notion that we can attack the rural areas … with an equal amount of vigor as the suburban and urban areas.”

Mr. Kennedy and other FirstNet officials stressed the importance of getting public safety and industry input on the draft RFP documents. Mr. Kennedy said the special notice will help maximize the feedback that FirstNet gets on the draft RFP because it makes it easier to provide feedback. The draft RFP documents also include information on supplies or services and prices/costs and the SOO.

“FirstNet is continuing to work on additional sections, including the evaluation factors and instructions to offerors,” Mr. Kennedy’s presentation said. “These sections require additional inputs from Public Safety and industry prior to release.”

Mr. Kennedy went through what he said was FirstNet’s plan to ensure the network is financially sustainable, noting that it includes the $7 billion in federal funding, user fees, and funding from leasing excess capacity on the network. “We believe that the value is there to create a sustainable, self-supporting network,” he said.

The special notice emphasizes that a key FirstNet objective is to ensure there is substantial public safety adoption of the network, Mr. Kennedy said. It seeks to align any proposals with public safety adoption by proposing subscriber targets by state and year and a “Most Favored Nation” pricing clause to ensure that public safety users get “very competitive pricing throughout the life of the contract,” he said.

The special notice also describes the potential financial structure of proposals that FirstNet might get, including government funding as well as required fixed payments to FirstNet for the leasing of excess capacity.

Mr. Kennedy also went through a number of key elements of the network and services, which he said would be tracked.  They include (1) quantity and quality of applications, user satisfaction, and local control for public safety users, (2) outage and incident management and resiliency for network operations, (3) coverage quantity and quality, capacity, and priority and quality of service for the radio and core network, and (4) portfolio breadth and depth, certification timelines, and security and malware protection for public safety devices.

The special notice and draft RFP documents also include operational architecture details, Mr. Kennedy’s presentation said. It said that FirstNet plans to “[p]ropose certain key functions over which it may exercise control or maintain operational responsibility.” Mr. Kennedy said the architecture includes 636 functions.

The special notice also identifies nationwide and regional approaches for deploying the network. The nationwide proposal would include the nationwide core network, covered leasing agreements (CLAs), and radio access networks (RANs) in states, while a regional RAN proposal would focus on a regional approach for CLAs and RANs, which would have to be consolidated with a nationwide core network, Mr. Kennedy said. “We want to really drive as good a competition as we can,” he told reporters during a conference call later in the day.

Considerations for which approach would be best include technical, integration, and contracting complexity, competition, and excess capacity value, according to Mr. Kennedy and his presentation.

Mr. Kennedy also outlined a road map for activities the rest of this year, leading to the release of the final RFP by the end of the year. They include an industry day in May, which will likely be announced next week, and another industry day in August. Mr. Kennedy also said that FirstNet would be willing to have meetings with industry between May and September, under the direction of FirstNet’s contracting officer. An industry day/pre-solicitation conference is on the schedule for October, and a public safety briefing is listed for August.

Mr. Kennedy was asked during today’s meeting whether management believes that 90 days is an adequate amount of time to get comments on the draft RFP. “We believe it’s an appropriate timeframe,” he replied, saying that industry had expressed support for a 90-day period. However, he said, FirstNet would be open to considering reasonable requests for extensions of comment periods, although he noted that any such extensions could push back other deadlines, such as the release of the final RFP.

Mr. Kennedy told reporters that the draft RFP documents total 266 pages, but he said that does not include the operational architecture document, which is 30-plus-pages long “when printed out on a plotter.” Also not included are Excel documents for entities to respond to the operational architecture document, he said.

Ms. Swenson stressed the importance of the RFP documents.  “This is obviously a very complex issue, and I think the framing of it and understanding the constraints, plus the opportunities, is really important. And it’s not a simple story to tell,” she said.

“This is an important part of our overall consultation,” Ms. Swenson added. “This is not just issuing a bunch of documents. It’s really an opportunity for feedback.”

The public notice released today is the third issued by FirstNet and the second to address the public safety entity definition. The earlier notice sought comments on preliminary interpretations regarding FirstNet’s authority under the Middle Class Tax Relief and Job Creation Act of 2012, which created FirstNet (TRDaily, Sept. 17, 2014).

As for the definition of public safety entity, FirstNet’s preliminary interpretation was that it should use a definition of those services that fall under the definition in the 1934 Communications Act, as amended, or the Homeland Security Act of 2002. FirstNet had said it preliminarily concluded “that an entity may offer other services in addition to a non-de minimis amount of public safety services and still qualify as a public safety entity.”

That would mean that those entities can include utilities, airport operations, transportation departments, hospitals, and entities that protect city infrastructure, FirstNet said.

The proposed definition was supported by some industry and public safety entities, including utilities and other critical infrastructure industry parties, but criticized by others, including the Association of Public-Safety Communications Officials-International, that felt it was too broad and could compromise traditional public safety access to the network (TRDaily, Oct. 28, 2014).

During a presentation at today’s meeting, acting Chief Counsel Jason Karp acknowledged the concerns expressed by some with FirstNet’s earlier preliminary interpretation and said the refinement may address those worries.

In the notice approved today, FirstNet preliminarily concluded that “a public safety entity under the [Communications Act] can include at least a group of employees smaller than a larger organization.”

“As an overall framework for qualifying public safety entities, we first preliminarily conclude that where an organization as a whole is charged with providing, and does provide public safety services, the organization qualifies as a public safety entity and all members of the organization can (following consultation and within the discretion discussed in Part III of this Third Notice) be given access to or use of the network under the Act. This preliminary conclusion is fairly clear under the Act and would apply to traditional first responder organizations, among others,” the notice said.

“Next, with respect to organizations that do not meet the above criteria, we preliminarily conclude that those members of such an organization that provide or are reasonably likely to provide public safety services for a non-de minimis amount of time, qualify as public safety entities under the Act and can (following consultation and within the discretion discussed in Part III of this Third Notice) be given access to or use of the network under the Act,” the notice added. “Under this refined preliminary interpretation,” FirstNet said, “where an organization as a whole, such as a private utility, is not charged with providing public safety services, the entire organization would not necessarily qualify as a public safety entity.”

FirstNet added that it has preliminarily concluded that “the personnel or subgroups within a non-governmental organization qualify as public safety entities under the Act to the extent such personnel or subgroups provide public safety services as defined under either the Section 337(f) prong or the HSA prong of the public safety services definition. This is merely stating the statutory framework under the Act with the addition of our conclusions above regarding whether personnel or subgroups can qualify as ‘entities’ under the Act.”

“These are preliminary conclusions,” Mr. Karp stressed during the meeting. “There are not final conclusions in this document, and that is something that will come later.”

“This is a very important interpretation, and we want to make sure we get it right, that we’re not too narrow, we’re not too broad,” Ms. Swenson said.

In response to the public notice and RFP documents voted on today, Derek Poarch, executive director of APCO, said that his group “appreciates FirstNet’s continued focus on the importance of defining the term ‘public safety entity,’ and looks forward to reviewing FirstNet’s request for comments.  We also applaud FirstNet for achieving a major milestone by voting to approve the release of its draft Request for Proposals document.”

“In terms of the third public notice, the State of Washington believes the subject of FirstNet allowable users must be part of consultation with each state,” said Bill Schrier, Washington state’s FirstNet single point of contact and chair of the state’s Interoperability Executive Committee. “In other words, which disciplines and agencies are allowed to use FirstNet in a state should be discussed with the state and included in the FirstNet state plan. … These responders need to be included in FirstNet’s plans.”

As for the draft RFP, Mr. Schrier said, “I’m happy to have 90 days to review and comment. It appears this will not be the standard federal government acquisition approach of writing 10,000 detailed requirements, which I certainly welcome. I’m also surprised and pleased that FirstNet is going to accept geographic options, e.g. a vendor or teams to bid on the whole nationwide network, or bidders for just a portion of the nation, e.g. a single state or group of sates. That will be helpful as it allows regionally-based companies or even individual states a chance to bid. It also appears FirstNet realizes that ‘adoption’ is a major issue – that getting public safety agencies to sign up will be a challenge. I eagerly look forward to see what strategies FirstNet has put into the RFP to encourage adoption.”

“I think they are working very hard to facilitate consensus on the definition of public safety entities,” said Ray Lehr, former statewide interoperability director and single FirstNet SPOC for Maryland who is now a consultant to the five-state Mid-Atlantic Consortium for Interoperable Advanced Communications (MACINAC). “The Draft RFP approach is well developed and should elicit strong offers from industry. States will also gain more insight to how the network will be deployed based on this approach.” – Paul Kirby, paul.kirby@wolterskluwer.com