GAO Denies LightBox Challenge Of FCC Broadband Fabric Mapping Contract Award - FCC Moves Forward With CostQuest Fabric
March 1, 2022 – The U.S. Government Accountability Office has denied a bid protest filed by LightBox Parent, LP challenging the FCC’s decision to award a $44.9 million contract to CostQuest Associates Inc. to create a Broadband Serviceable Location Fabric.[1]
After LightBox filed its challenge, the FCC was required to halt its work on the Fabric and give the GAO 100 days to issue a decision on the protest. Now that GAO has issued a denial, the FCC can restart its work with CostQuest on the further development and implementation of the Fabric.
What Is The Broadband Serviceable Location Fabric?
The “Broadband Serviceable Location Fabric” will be a common dataset of all locations in the U.S. where fixed broadband internet access service can be installed, and is a key component of the FCC’s new Broadband Data Collection program. Broadband service providers will provide the FCC with granular and detailed coverage data which will be layered on top of the Fabric, thereby giving the FCC an accurate picture of broadband coverage in the U.S. and creating a more accurate national broadband map.
LightBox’s Bid Protest
The FCC released a Request for Proposals (RFP) to create the Broadband Serviceable Location Fabric on June 1, 2021, with responses due July 1, 2021. The FCC’s Fabric RFP contemplated a single award based on a best-value tradeoff between four evaluation factors: (1) technical approach; (2) data usage rights; (3) past performance; and (4) price. A pre-award protest was filed with Government Accountability Office following the RFP response deadline, which forced the FCC to issue a revised RFP on August 13, 2021. Revised proposals were due August 26, 2021. The FCC received a total of twelve proposals and alternate proposals from seven offerors, including two proposals from LightBox and two from CostQuest. A $44.9 million contract to develop the Fabric was then ultimately awarded on November 9, 2021, to CostQuest.
GAO Decision at p. 3.
LightBox filed its bid protest challenging the FCC’s decision pursuant to the Federal Acquisition Regulation process on November 29, 2021. In its bid protest, LightBox generally alleged that the FCC “erred in its evaluation in several respects, that CostQuest’s proposal contained material misrepresentations, and that CostQuest will not be able to meet material solicitation requirements due to the terms of various data licensing agreements.”[2] Here is how the GAO described LightBox’s arguments:
The protester raises numerous challenges to the agency’s evaluation. Central to the protest, however, are three related challenges concerning the awardee’s data rights that pose complex questions regarding our Office’s jurisdiction over the issues challenged. First, the protester alleges the agency erred in its evaluation of the awardee’s data rights proposal and related aspects of the awardee’s technical approach. Second, the protester alleges that the awardee will be unable to furnish the data rights it promised in its proposal due to the terms of various licensing agreements. Third, the protester alleges that the awardee materially misrepresented its data rights in several respects. In addition to these data rights arguments, the protester also raises challenges to the agency’s evaluation of both past performance and the protester’s technical approach.[3]
The GAO’s Decision – Denied In Part & Dismissed In Part
For a number of reasons, the GAO denied LightBox’s bid protest in part, and dismissed it in part. Here is the summary of the GAO’s ruling from the “Digest” portion of the decision:
1. Protest alleging that agency failed to consider that data rights offered by the awardee were inconsistent with data rights information contained in the protester’s proposal, as well as other information in the awardee’s proposal, is denied because the record did not reflect any inconsistencies.
2. Protest alleging that awardee cannot license certain data to the agency because the data is licensed from a third party, and the third party does not itself have the necessary rights to allow the awardee to license the data to the agency is dismissed. These arguments pertain to a dispute between private parties in which the government is not involved. In addition, the ancillary question of whether, as a result of these agreements, the awardee will ultimately be able to furnish the agency with appropriate data rights is a question of contract administration not for our forum.
3. Protest alleging that awardee materially misrepresented terms of license agreements it held with a third party is denied, in part, where the record does not establish that statements in the awardee’s proposal were false, and dismissed, in part, to the extent resolving the alleged misrepresentation would require our Office to resolve facially legitimate disputes about differing interpretations of agreements between private parties that our Office does not review.[4]
Will The Broadband Serviceable Location Fabric Be Ready This Year?
The FCC recently announced that it will begin accepting broadband availability data filed pursuant to the FCC’s new Broadband Data Collection (BDC) rules and procedures on June 30, 2022.[5] In that Public Notice, the FCC had this to say about an eventual GAO denial of LightBox’s bid protest:
Assuming a favorable result from GAO, we anticipate the contractor will deliver to the Commission a preliminary version of the Fabric that we would plan to share with filers so they can begin developing their processes to align their address or location data with the Fabric well in advance of the opening of the reporting window. We will also work with the contractor to finalize the requirements for the production version of the Fabric. While completing this preparatory and development work and integrating the production version of the Fabric data into the BDC system will take time, a favorable GAO action within its usual timeframe should enable a production version of the Fabric to be completed and made available to filers in time for the initial collection.[6]
It’s been rumored that CostQuest has had the Fabric ready to go for some time. Now that the FCC is done waiting on the GAO decision, there may be the release of an initial beta version somewhat soon (late this month or in April?). When the FCC releases it for download, broadband providers will be able to test it out and practice incorporating their deployment data into it. Of course, this will be the FCC’s most burdensome, time-consuming broadband deployment data collection of all time. So, the sooner the Fabric is released, the better – all facilities-based providers of fixed and mobile broadband Internet access service must submit broadband availability data as of June 30, 2022, to the BDC online filing system no later than September 1, 2022.
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[1] Protestor: LightBox Parent, LP; Solicitation Number: 273FCC21R0005; Agency: Independent Agencies and Govt Corporations : Federal Communications Commission; File number: B-420032.2; Outcome: Denied; Decision Date: Feb. 24, 2022 (GAO Decision); https://www.gao.gov/docket/b-420032.2, https://www.gao.gov/assets/b-420032.2.pdf.
[2] GAO Decision at p. 2.
[3] GAO Decision at p. 4.
[4] GAO Decision at p. 1.
[5] Broadband Data Task Force And Office Of Economics And Analytics Announce Inaugural Broadband Data Collection Filing Dates, Broadband Availability Data As Of June 30, 2022 Are Due No Later Than September 1, 2022, WC Docket Nos. 11-10 and 19-195, Public Notice, DA 22-182 (Feb. 22, 2022) (Public Notice), https://docs.fcc.gov/public/attachments/DA-22-182A1.pdf.
[6] Public Notice at ¶18.
