B. Competitive Bidding
3. USAC Posting of Request for Services
239. Background. In the current RHC program, the first form submitted to USAC is FCC Form 465 (Description of Services Requested & Certification Form).607 Form 465 currently serves two purposes: first, to certify to USAC that the HCP is eligible to receive support; and second, to request bids for the desired services. As discussed above, in the Healthcare Connect Fund we will separate the process (and forms) for obtaining eligibility determinations from the process of requesting bids applying for funding. The eligibility determination process is discussed in section VI.A.2 above. In this section, we discuss the process for initiating competitive bidding for requested services.
240. Discussion. Applicants subject to competitive bidding must submit new FCC Form 461 and supporting documentation (as described below) to USAC. The purpose of these documents is to provide sufficient information on the requested services to enable an effective competitive bidding process to take place and to enable USAC to obtain certifications and other information necessary to prevent waste, fraud, and abuse.
241. Documents to be submitted to USAC with the “request for services” include the following:
· Form 461. Applicants should submit Form 461, the “request for services,” to provide information about the services for which they are seeking support. On Form 461, applicants will provide basic information regarding the HCP(s) on the application (including contact information for potential bidders), a brief description of the desired services, and
certifications designed to ensure compliance with program rules and minimize waste, fraud, and abuse. An applicant must certify under penalty of perjury that (1) it is authorized to submit the request and that all statements of fact in the application are true to the best of the signatory’s knowledge; (2) it has followed any applicable state or local procurement rules; (3) the supported services and/or equipment will be used solely for purposes reasonably related to the provision of health care service or instruction that the HCP is legally authorized to provide under the law of the state in which the services are provided and will not be sold, resold, or transferred in consideration for money or any other thing of value; and (4) the HCP or consortium satisfies all program requirements and will abide by all such requirements.608 Applicants not using an RFP should provide on Form 461 sufficient information regarding the desired services to enable an effective competitive bidding process, including, at a minimum, a summary of their service needs, the dates for service (including whether the contract is potentially for multiple years), and the dates of the bid evaluation period.609 Consortium Leaders should provide the required information on behalf of all participating HCPs.
606IRHN PN Comments at 16 (noting that sometimes it takes more than a single RFP (i.e. multiple consortium-level RFPs) to achieve the consortium’s objective).
607See 47 C.F.R. § 54.603(b).
608 See Appendix D, 47 C.F.R. § 54.642(e)(1).
609See Universal Service First Report and Order, 12 FCC Rcd at 9134, para. 686 (explaining that the request for services “may be as formal and detailed as the health care provider desires or as required by any applicable state or federal laws or other requirements,” but should “contain information sufficient to enable the [service provider] to identify and contact the requester and to know what services are being requested”).
· Applicants who include a particular service provider’s name, brand, product or service on Form 461 or in the RFP must also use the words “or equivalent” in the description, in order to avoid the appearance that the applicant has pre-selected the named service provider or intends to give the service provider preference in the bidding process.610 In addition, an applicant may wish to describe its needs in general terms (e.g., “need to transmit data and medical images” rather than requesting a specific service or bandwidth), because the applicant may not be aware of all potential service providers in its market. Using general terms can allow an applicant to avoid inadvertently excluding a lower-cost bid from a service provider using a newer technology.611
· Bid Evaluation Criteria. The requirements for bid evaluation criteria are discussed in section VI.A.4 above.
· Request for Proposal. Certain applicants mustuse an RFP in the competitive bidding process, and any applicant mayuse an RFP. Applicants who use an RFP should submit it (along with any other relevant bidding information) as an attachment to Form 461.612
· Network Planning for Consortia. Consortium applicants must submit a narrative attachment with Form 461 that includes the following information:
(1) Goals and objectives of the proposed network;
(2) Strategy for aggregating the specific needs of HCPs (including providers that serve rural areas) within a state or region;
(3) Strategy for leveraging existing technology to adopt the most efficient and cost effective means of connecting those providers;
(4) How the broadband services will be used to improve or provide health care delivery;
(5) Any previous experience in developing and managing health IT (including telemedicine) programs; and
(6) A project management plan outlining the project’s leadership and management structure, and a work plan, schedule, and budget.613
The above network planning requirements are consistent with those in the Pilot Program.
For purposes of the Healthcare Connect Fund, however, submission of this information is
610See Request for Review of the Decision of the Universal Service Administrator by Queen of Peace High School, CC Docket No. 02-6, Order, 26 FCC Rcd 16466, para. 1 (Wireline Comp. Bur. 2011).
611See USAC web site on competitive bidding, http://www.universalservice.org/rhc/health-care- providers/competitive-bidding.aspx (last visited Nov. 14, 2012).
612In the 1997 Universal Service Fourth Order on Reconsideration,the Commission declined to adopt a requirement for the Fund administrator to post RFPs for schools, libraries, and rural HCPs on the administrator’s web site, due to concerns that such a requirement could impose significant costs and potential delays on the
administrator’s ability to build technical systems for the implementation of the programs. Universal Service Fourth Order on Reconsideration, 13 FCC Rcd at 5410-13, paras. 160-62 (noting that some RFPs may number over a hundred pages, including diagrams and specifications). Given advances in technology since 1997, we find that posting a RFP in Adobe PDF, Word, or other formats should no longer pose difficulties for USAC, the current administrator of the Fund. We note that the Commission and USAC now both routinely post PDF documents that are a hundred pages or more in length, and USAC has experienced no technical difficulties in posting RFPs for the Pilot Program on its web site.
6132006 Pilot Program Order, 21 FCC Rcd at 11117, para. 17.
a minimum requirement, not a scoring metric for choosing funding recipients. We do not intend for this planning to be an undue administrative burden, and will continue to allow consortia to put forth a variety of strategies for accomplishing their goals, as the
Commission did in the Pilot Program.614
Consortium applicants are required to use program support for the purposes described in their narrative.615 As discussed below in Section VII.A, all applicants are subject to the Commission’s procedures for audits and other measures to prevent waste, fraud, and abuse.
· Form 460. Applicants should submit Form 460 to certify to the eligibility of HCP(s) listed on the application, if they have not previously done so.616
· Letters of Agency for Consortium Applicants. Consortium applicants should submit letters of agency demonstrating that the Consortium Leader is authorized to submit Form 461,
including required certifications and any supporting materials, on behalf of each participating HCP in the consortium.617
· Declaration of Assistance. As the Commission did in the Pilot Program, we require that all applicants identify, through a declaration of assistance, any consultants, service providers, or any other outside experts, whether paid or unpaid, who aided in the preparation of their applications.618 The declaration of assistance must be filed with the Form 461.619 Identifying these consultants and outside experts facilitates the ability of USAC, the Commission, and law enforcement officials to identify and prosecute individuals who may seek to defraud the program or engage in other illegal acts. To ensure participants comply with the competitive bidding requirements, they must disclose all of the types of relationships explained above.620 242. Applicants may submit Form 461 starting 180 days before the beginning of the funding year.621 Our experience in the Pilot Program is that it can take as long as six months for more complex
614We recognize that existing HCP networks may already have such strategies in place. Pilot Program networks have strategies already approved by the Commission, which may only require minor modifications or extensions in order to add new participants to the network. Therefore, current Pilot Program consortia are not required to develop new strategies and evaluations for purposes of meeting this requirement in the Healthcare Connect Fund; instead, they may seek rely on existing documentation, updated as necessary to the extent they seek to extend existing networks.
615Applicants will have the opportunity to amend the narrative, if needed, when they submit their requests for funding commitments. See infra section VI.C.3.
616See supra section VI.A.2.
617See supra section VI.A.1.c.
618See 2007 Pilot Program Selection Order, 22 FCC Rcd at 20415, para. 104.
619SeeAppendix D, 47 C.F.R. § 54.642(e)(3).
620See 2007 Pilot Program Selection Order, 22 FCC Rcd at 20415, para. 104.
621For the first funding year only of the Healthcare Connect Fund, we anticipate that the filing window for Form 461 will open on or around July 1, 2013, rather than 180 days before the commencement of the funding year. We direct USAC to open the funding window as soon as feasible after the Paperwork Reduction Act approval is obtained from the Office of Management and Budget for the new information collection requirements in this order.
See infra section X.A.
projects to complete bid evaluation and select a vendor.622 To allow sufficient time to complete this process prior to the beginning of the funding year, HCPs should submit Form 461 as soon as possible after the filing window opens. USAC may provide applicants with the opportunity to cure errors on their submissions, up to the date of posting of the Form 461 package. The responsibility to submit complete and accurate information to USAC, however, remains at all times the sole responsibility of the applicant.
4. 28-Day Posting Requirement
243. After the HCP submits Form 461, USAC will post the form and any accompanying documents (the Form 461 “package”) on its web site.623 USAC may institute reasonable procedures for processing Form 461 and the associated documents and may provide applicants with an opportunity to correct errors in the submissions.624 We caution applicants, however, that they remain ultimately responsible for ensuring that all forms and documents submitted comply with our rules and any other applicable state or local procurement requirements. We also remind applicants that they must certify under penalty of perjury on Form 461 that all statements of facts contained therein are true to the best of their knowledge, information, and belief, and that under federal law, persons willfully making false statements on the form can be punished by fine, forfeiture, or imprisonment.625If an applicant makes any changes to its RFP post-submission, it is responsible for ensuring that USAC has a current version of the RFP for the web site posting.
244. The NPRMproposed that applicants seeking infrastructure bids should be required to distribute their RFPs in a method likely to garner attention from interested vendors.626 In keeping with our objective of minimizing administrative costs to applicants, however, we decline to adopt a formal requirement for applicants to distribute an RFP beyond the USAC posting process.627 We do encourage applicants, however, to disseminate their requests for services (Form 461 package) as widely as possible, in order to maximize the quality and quantity of bids received. Such methods could include, for example, (1) posting a notice of the Form 461 package in trade journals or newspaper advertisements; (2) send the RFP to known or potential service providers; (3) posting the Form 461 package (or a link thereto) on the HCP’s web page or other Internet sites, or (4) following other customary and reasonable solicitation practices used in competitive bidding.628
245. After posting of the Form 461 package, USAC will send confirmation of the posting to the applicant, including the posting date and the date on which the applicant may enter into a contract with the selected service provider (the “Allowable Contract Selection Date,” or ACSD). Once USAC posts the package, interested bidders should submit bids directly to the applicant. Applicants must wait at
622USAC Nov. 16 Data Letter at 3.
623See Appendix D, 47 C.F.R. § 54.642. The term “package” simply refers to all documentation associated with a particular filing -i.e. the FCC form and any attachments.
624See, e.g., Request for Review of the Decision of the Universal Service Administrator by Bishop Perry Middle School, et al., File Nos. SLD-487170, et al., CC Docket No. 02-6, Order, 21 FCC Rcd 5316, 5326-27, paras. 23-24 (2006) (in the E-rate context, directing USAC to allow applicants to correct administrative or ministerial errors in their submissions).
625See Appendix D, 47 C.F.R. § 54.642(e)(1); see also 47 U.S.C. §§ 502, 503(b); 18 U.S.C. § 1001.
626NPRM, 25 FCC Rcd at 9436, para. 85.
627See IHS Comments at 6-7 (arguing that vendors are familiar with the USAC posting and response process, and there is no reason to require applicants to incur increased administrative (and non- reimbursable) costs by requiring extensive publication elsewhere).
628See NPRM, 25 FCC Rcd at 9405, para. 85.
least 28 calendar days from the date on which their Form 461 packages are posted on USAC’s web site before making a commitment with a service provider, so the ACSD is the 29th calendar day after the posting.629 Applicants may not agree to or sign a contract with a service provider until the ACSD, but may discuss requirements, rates, and conditions with potential service providers prior to that date.
Applicants who select a service provider before the ACSD will be denied funding.
246. Applicants are free to extend the time period for receiving bids beyond 28 days from the posting of Form 461 and may do so without prior approval. In addition, some applicants who propose larger, more complex projects may wish to undertake an additional “best and final offer” round of
bidding. Allowing sufficient time and opportunity for all potential bidders to develop and submit bids can lead to more and better bids, and has the potential to enhance the quality and lower the price of services ultimately received. We encourage HCPs contemplating more complex projects (including those with an infrastructure component) to utilize a longer bidding period, as done by many Pilot projects. If an applicant has plans to utilize a period longer than 28 days, it should so indicate clearly on the Form or in accompanying documentation. An applicant that decides to extend the bidding period after USAC’s posting of Form 461 should notify USAC promptly, so that USAC can update its web site posting with notice of the extension.
5. Selection of the Most “Cost-Effective” Bid and Contract Negotiation