FirstNet is a startup “company” formed by Congress to build and maintain the Nationwide Public Safety Broadband Network (NPSBN). The fifteen-member board of directors was appointed in the summer of 2012 and the first board meeting was held in September of that year. Since then, FirstNet has undergone many changes and a few “resets” along the way. Congress called for FirstNet to be an “Independent Authority” under the auspices of the National Telecommunications and Information Administration (NTIA), which is part of the U. S. Department of Commerce (DOC). Unfortunately, Congress failed to describe what it meant by “Independent Authority” so the meaning was up for interpretation and the NTIA decided that FirstNet would be neither Independent nor an Authority. Instead, it is treated as a government body and is encumbered with all the rules and regulations of a federal agency.
Even under the NTIA there are a number of models for an Independent Authority that would have worked much better than the existing approach. ICANN is the best example because it is truly an independent company, paying industry-compatible wages as opposed to much lower government salaries. I am told that NTIA does not care for the ICANN model since it has no control over its management. The AMTRAK model is also a viable model but that and a few other types of Independent Authorities were passed over as well. This is important to understand before we delve into the Office of the Inspector General’s (OIG) report and its implications moving forward.
Circulated on December 5, 2014, the OIG report starts out with a letter to Uzoma Onyieje, the FirstNet Board of Directors Secretary, an NTIA employee, and Lawrence E. Strickling, the Assistant Secretary of the NTIA who directly oversees FirstNet. This report is designated as OIG-15-013-1 and can be found here: http://www.oig.doc.gov/OIGPublications/OIG-15-013-A.pdf.
The next to last paragraph of the letter of transmittal sums up the OIG’s findings:
“We found that the Department’s confidential and public disclosure monitoring procedures were inadequate (see finding I). Board members did not file timely public financial disclosure reports (see finding II). Also, the FirstNet Board operational procedures for monitoring potential conflicts of interest need improvement (see finding III). In addition, FirstNet contracting practices lacked transparent award competition, sufficient oversight of hiring, adequate monitoring, and procedures to prevent payment of erroneous costs (see finding IV).”
Title I of the report states: “The Department’s Confidential and Public Financial Disclosure Monitoring Procedures Were Inadequate”
Yet the OIG does not find fault with the oversight provided by the NTIA or DOC but rather faults the members of the FirstNet board of directors. I have a different take on this. First, it is important to understand that the first fifteen-member board was made up of several governmental agency appointments—high-ranking Public Safety personnel representing Sheriffs, Chiefs of Police, Fire Chiefs, and the EMS community. The balance of the board came from the private sector and was made up of true communications professionals within the commercial communications sector. These board members were all high-ranking professionals, many of whom had made a lot of money as a result of their proven ability to build and maintain commercial wireless networks. They had all been there and done that, and several have financial holdings in the millions.
When they agreed to join the board of FirstNet they did so not because of the salary, but because they love challenges in the wireless arena and the desire to assist and give back to the Public Safety community. The development of the FirstNet network promised to be quite a rewarding challenge. From what I gather, when they joined the FirstNet board they were required to fill out a Confidential OGE (Office of Government Ethics) form 450. This document served as a disclosure by each board member of their financial holdings and any conflicts between their own investments and FirstNet. Note that when they agreed to join the board this form was to be confidential and not made available to the public.
Later, NTIA invoked the OGE requirement that “certain senior officials” who work more than sixty days in one year have to fill out OGE form 278, which is also a financial disclosure form but it is made available to the public. My problem with this is when they agreed to join the FirstNet board they were told their financial information was NOT to be shared publically. Only later was the sixty-day rule invoked. Most industry leaders keep their financial information close to their vests, and I am sure this new wrinkle in the disclosure process was not welcomed by many of the board members.
Even so, the OIG dinged the FirstNet board members for filing this public form late, or turning in time slips for zero hours to try to avoid the sixty-day rule. I have to wonder how many of the original members would have agreed to serve on the FirstNet board if they had been properly notified about the requirement for public disclosure of their personal finances. My bet is that some would have walked away and not accepted a seat on the FirstNet board. Moreover, had FirstNet been truly independent there would not have been this requirement for public disclosure.
I place the blame for this entire messed up disclosure process not on the FirstNet board of directors but squarely on the heads of those at NTIA and the DOC that took control of and, therefore, oversight of the FirstNet board. It should also be understood that several board members were wearing multiple hats during the first year of this startup. They were on the board of directors but were also filling roles as employees of FirstNet. There was an Acting Chief Technology Officer, an outreach person, and several others who took on much more than they had signed up for, along with the added responsibilities of getting FirstNet off the ground and of starting the process of designing the network.
The report in Title I concludes: “Responsible officials at OGC [Office of the General Council] and NTIA stated that FirstNet was unique, requiring them to adapt existing procedures and practices to a new entity. Nonetheless, neither OGC, which is responsible for FirstNet’s ethics program, nor NTIA, within which FirstNet was established as an independent authority, had adequate financial disclosure procedures in place to ensure timely compliance by the FirstNet Board. In addition, OGC did not have any mechanism in place to verify and confirm that new employees received initial ethics training. Consequently, some Board members continued to act and to make decisions, even though they were not in compliance with financial disclosure requirements.”
This recap puts the issue squarely back on the NTIA and OGC for DOC. I do think that if FirstNet was treated as a more independent authority this type of public disclosure would not have been necessary and there would not have been an issue with FirstNet board members’ disclosures as originally submitted. Title II and III of the report continue to deal with the issue of financial disclosure as well as the lack of ongoing monitoring of FirstNet board members. The report in Title III states the following:
“Nonetheless, 6 months after the Board began regular meetings, senior NTIA and OGC officials were still debating by e-mail how best to routinely monitor potential conflicts of interest. NTIA proposed requiring Board members to recuse themselves from meeting agenda items and for distribution of conflict of interest guidance, at a minimum, once per year. In addition to recusal for conflicted Board members, OGC recommended affirmative certification, which would require Board members who had not recused themselves from a particular matter to sign a statement at each Board meeting certifying that they had no conflicts of interest with agenda items. Affirmative certification, combined with recusal, would have been consistent with procedures used for other government employees responsible for assessing contract bids. OGC also advocated distributing conflicts guidance at each meeting. An NTIA official, who has since left the federal government, stated that these procedures were overly intrusive.”
The person referred to in this paragraph, I believe, was trying to intercede on behalf of the FirstNet board of directors, and was taking part in many of the conference calls held by Public Safety organizations in order to gain a better understanding of what would work for FirstNet. This person’s leaving the NTIA was a real loss to FirstNet and any effort it might have undertaken to gain more independence.
Titles I, II, and III deal with the issues of conflict of interest by FirstNet board of directors leveled by another board member in May 2013, and was one reason the then chairman of the FirstNet board asked for the OIG investigation. Again, I believe if the NTIA/DOC had fully explained the need for public disclosure several board members would have opted out simply because they are successful professionals who have always valued their privacy. As far as I am concerned, the shortcomings found in Titles I, II, and III of the OIG report reflect the lack of management by the NTIA. In reality, of course, FirstNet should have been an independent authority, but given the fact that the NTIA took charge it should have been more forthright with board members when it came to the possibility of public disclosures.
Title IV: “FirstNet Contracts Were Awarded without Competition or Sufficient Oversight of Hiring—and Were Not Adequately Monitored.”
I will admit I have a difficult time with this section of the report since my contract was supposedly one of those included in the above statement. However, what actually happened is that I was recommended for a position as the Public Safety Communications Advisor to FirstNet reporting directly to the General Manager. The hiring process took months to complete. I was supposedly vetted by both the NTIA and NIST, and once I passed my background investigation I was notified by Workforce Resources that I was hired. I had no visibility and was not informed whether there was competition for my position, which had unique requirements.
The IGO report is harsh on the way contractors were hired, how much they were paid, and how lax the accounting was for the funds disbursed. While I have no insight into any other contractor’s relationship or how much they made per hour, I can and will share my own experience. First, the hourly rate I was offered was considerably lower than the hourly rate I charge in the commercial wireless world. I took the position because I felt I could make sure the Public Safety community got what it was expecting. I reported directly to the General Manger and we all worked long and hard hours.
I was amazed when I found out that not only was I to be paid for actual hours worked, I was also to be paid by the hour for every hour of travel. Since I normally eat my travel time or charge 50% of my hourly rate, I was flabbergasted that the NTIA would pay 100% for travel time. In hindsight, I can see why some of the contractors turned in hefty bills each month since some traveled to Northern California every Monday, stayed in a hotel all week, and flew home on Friday. The next surprise was how expenses were handled. My expenses were nitpicked each and every time I submitted them, and I was paid August expenses in December!
Plans had been to continue on the road with the GM and several other contractors but on December 18 Workforce Resources told me to return home immediately because it was the last day of my contract.
I turned in a receipt for a half-day at the hotel since the next plane out of Denver was at 10 PM. When I finally received my expense reimbursement, the half-day hotel fee had been disallowed since it was not part of my travel estimate. (We had to have an approved travel estimate before each trip). Lastly, Workforce Resources and the NTIA verified every timesheet I turned in and timesheets were often run by the GM to verify their accuracy. Except for the last timesheet when I worked more hours at the direction of the GM because it was crunch time prior to a board meeting—Workforce Resources shorted my check by one-third of the hours actually worked. At that point I chalked it up to lessons learned and moved on.
Now, the OIG report was highly critical of the fact that hiring of contractors was based on board members’ directions to NIST, which held the contract with Workforce Resources, and was not put out for competitive bidding. Ordinarily, within both the private and public sectors those charged with getting a startup up and running surround themselves with people they have worked with before, people they know are subject matter experts, and people they have worked with on other projects as a team. I find no fault with that concept in either the public or private sector but the NTIA and NIST were dinged by the OIG for permitting this to happen.
Even prior to the OIG report, the NTIA circled its wagons, cancelling the Workforce Resources contracts and then taking more than six months to award new, “competitive contracts.” In the meantime, FirstNet lost its momentum, and it turns out that because of the new “competitive” hiring practices, a lot of information that had already been acquired by the original contractors was lost.
However, these new contracts were far from competitive. The new contracting method pitted three hiring companies against each other. Each task/position was given to all three to propose a primary and secondary candidate. Sounds fair, right? The issue is that all three of the contractors were privy to all of the incumbent contractors’ hourly rates so naturally they underbid the incumbents. The resultant new candidates may or may not have been as qualified but they were cheaper. Next, each candidate was vetted by a committee that included only one FirstNet person and two government people. After that selection process, it was up to the NTIA to choose the “best” person for each task (read lowest per-hour bidder). In some cases this turned out to be the secondary choice of each hiring contractor. It was not until much later that FirstNet went back and rehired some of the original contractors. Meanwhile, FirstNet ground to a halt for more than six months; a time loss that could have and should have been avoided.
The OIG made some recommendations based on its view of the circumstances, even though both the NTIA and NIST had justified the hiring of specific Subject Matter Experts (SME). Even if there was some improper guidance from a board member over whom to hire, both NIST and the NTIA approved all of the hires. I fail to see how anyone can conclude that this was anything more than the FirstNet board members trying to assemble a known team of SMEs in order to jumpstart the process. It is true that the team originally assembled were SMEs from commercial networks that had no background in the Public Safety communications world, but one board member worked with them to explain requirements within the fire departments and I spent many hours with the team explaining the major differences between the two types of communications systems and unique requirements of the Public Safety community. Further, once the Public Safety Advisory Council (PSAC) was fully engaged with FirstNet (which I don’t think happened soon enough) the PSAC provided a lot of great input to FirstNet board members, staff, and contractors.
I waited a week to write this blog simply because I was interested in learning what others think. Some of the Public Safety consulting firms were pleased that the report pointed to wrongdoing by FirstNet, some within the Public Safety community were not surprised by the findings, the NTIA and DOC fairly quietly made some comments designed to mitigate their own involvement, and FirstNet responded that it accepted the report and most of the recommendations had already been implemented.
It was most interesting to me to find out who some of the people the IG talked to during its investigation were and who it did not talk to. I have no idea if the IGO had access to or reviewed the emails the government has that led up to the charges being made. Interestingly, the IGO report did not name names, referring instead to FirstNet board members by letters of the alphabet (though it’s fairly easy to decode which letter represents which board member).
I will be watching carefully for any repercussions and fallout from the report. The reality is that it should be acknowledged and then FirstNet should be permitted to carry on. However, some members of Congress have stated that they want to hold hearings on the report after they take control of the Senate next year. I am not sure what might come out of these hearings; I have attended a large number of such hearings and they result in few if any changes. The one remaining danger is that FirstNet’s spectrum value has skyrocketed after the AWS-3 Auction, which I am sure is a fact known to members of Congress who were opposed to Public Safety being given the spectrum in the first place. If this report is used as fuel to reverse what FirstNet was granted, it will be a tragic loss for the Public Safety community.
Let’s hope that what comes out of this is more independence for FirstNet, leaving FirstNet to pick up the pace and get this network in the ground and operational. And we should not lose sight of the fact that the FirstNet board and employees are truly dedicated to the Public Safety community. The money they are making as “government employees” is not compelling. What keeps those at FirstNet working so diligently is knowing they are working toward a goal that will benefit Public Safety as well as each and every person in the United States.