Communications Law Update: Applicants Found to Have Reviewed Vendor Bids In A Manner Consistent With Competitive Bidding Requirements

by Womble Bond Dickinson

The FCC has granted multiple appeals of decisions by the Universal Service Administrative Company (“USAC”) that had denied requests for E-rate funding. USAC had denied funding to the applicants based on the grounds that the applicants had either failed to consider price as a primary factor in selecting a vendor or had not carefully considered all bids received as a result of their FCC Form 470 posting. The rulings provide valuable insight into the Commission’s interpretation of the rule requiring that price be the principal consideration during the competitive bidding process. The decisions indicate that prior to weighing cost as a factor, an applicant may eliminate non-responsive, non-qualifying, or incomplete bids, and/or bids of vendors that are unable to provide the services requested by the applicant.

In 12 of the appeals, USAC had determined that the applicants had failed to assign price as the highest evaluation criterion during the competitive bidding process. While the Commission agreed with USAC’s determination, the record showed that in all instances the applicants had chosen the lowest cost bid, because the applicants either: (1) had considered multiple bids and chosen the only one that was responsive to the Form 470 postings, or (2) had chosen the only available vendor that qualified for the bid. In one case, the applicant had a choice of two different vendors from a state master contract. As part of its evaluation criteria for the two vendors, the applicant weighted performance at 80 percent and cost at 20 percent. While weighing performance higher than cost violated the Commission’s rules, the Commission found that the applicant had used that evaluation criterion based on previous experience with one of the vendors. When the applicant had chosen that vendor for a previous funding year, it discovered that the vendor’s equipment did not work in its building. Accordingly, it had evaluated performance over price. The Commission granted the applicant’s appeal, because, consistent with the E-rate rules, the applicant could have set up the bidding process in a way that disqualified the offending vendor prior to considering price as a factor. Had it done so, the second vendor would have had the only (and thus the lowest) de facto bid.

For two of the appeals, USAC had rejected funding based on a finding that the applicants had not considered all of the bids received as a result of FCC Form 470 posting. The Commission overturned the USAC decision in both instances. In the first case, after reviewing the two bids that it had received, the applicant determined that only one of the bids was complete. Accordingly, it chose the lowest-cost complete bid. In the second case, after following up with one of the two vendors that had submitted a bid, the applicant determined that the vendor could not provide that requested service. The Commission found that the fact that the applicant had only dismissed the bid after it had contacted the vendor to discuss the terms and conditions of its bid indicated that the applicant had carefully considered the vendor’s application. Accordingly, the Commission found that the applicant had evaluated all of the bids consistent with the E-rate program rules.

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Womble Bond Dickinson

Womble Bond Dickinson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.