Odd moments and signs of progress at broadband hearing…

A few really odd details have emerged this afternoon at the Legislature’s Broadband Access Study Committee hearing, as Senate Majority Leader Bart Davis, R-Idaho Falls, repeatedly questioned Greg Zickau, chief technology officer for the state Department of Administration, about the now-void contract for the Idaho Education Network.

First, Davis, reading from 4 ^th District Judge Patrick Owen’s decision, said in order for Admin to make a multiple contract award – awarding the IEN contract both to Education Networks of America and to Qwest, now CenturyLink, Admin was required by law “to make a written determination that multiple awards satisfy” one or more of three legal requirements. “And what I’m reading from Judge Owen’s decision is that there was such a written determination, but that written determination occurred only after there was a public records request, not prior to the determination and award of multiple contracts. Am I right so far?” “Yes, that’s correct,” Zickau replied.

Davis, an attorney, said his reading of the law is that omission alone renders the contract void. Deputy Attorney General Scott Zanzig told Davis, “The fact that that may have been a technical violation of this statute was never an issue in the lawsuit, because none of the parties including Syringa ever challenged the original multiple award.”

It was later amendments to the award, dividing the work so that Qwest handled the entire “backbone” of the broadband network while ENA was the e-rate contractor, that led to courts declaring the contract illegal, saying the state changed the terms after the bid award.

Davis said, “The statute says … you’ve got to follow these standards, and if you don’t, the contract is void. So whether Syringa raised it or not, the next fellow in line could have raised it. Because the contracts are not ‘voidable.’ They are void. Setting aside contract division, amendments or otherwise, doesn’t the fact there wasn’t a … written declaration of the reasons make the contracts void?”

“I’m not aware of a court having decided that’s the case,” Zanzig replied. “I understand your legal argument. … The Supreme Court hasn’t said that that was a problem.” Davis commented, “Judge Owen did.” The state is currently appealing Judge Owen’s decision; it has spent more than $1 million on attorney’s fees in the case.

In another oddity, Zickau said the Department of Administration, after awarding the contract to both ENA and Qwest, “had to determine the best method to proceed, and concluded that one option would be for Qwest to assume responsibility for schools in its service area, and ENA and Syringa … in its service area,” in a “geographic division.” Zickau told the lawmakers “They raised this possibility with Greg Lowe of Syringa, and he had responded that he would not participate, stating ‘No, I’m getting it all.’”

Lowe, CEO of Syringa Networks, who was in the audience, immediately denied that. “I never said that,” he said, “and I’m troubled that Greg Zickau would misrepresent that information in front of this committee.”

Syringa, which had partnered with ENA in the top-rated bid, is the company that successfully sued and got the contract declared illegal after the contract amendments cut it out of the deal entirely. Zickau also told the lawmakers, “Syringa did not submit a proposal and has never been a bidder,” and said the firm “does not have any rights that a bidder would have.”

Rep. Luke Malek, R-Coeur d’Alene, co-chairman of the legislative panel, said, “I don’t want this to be a courtroom. I want to move forward here. I don’t want to litigate what’s been done.”

Davis said if the state opts for a new statewide broadband network contract, it will need to dissect everything that went wrong with the last one and how to make sure it doesn’t recur. But, he said, “I’m not hearing today that that’s necessarily the way we go.”

Sen. Shawn Keough, R-Sandpoint, said, “I am hopeful that under the leadership of Sen. Geddes we will chart a positive path forward. I was disappointed that Mr. Zickau started us down the path of once again trying to justify what they did. … That was really disappointing. Our charge is a path forward. I was dismayed by the tone, and the choice that he made to try to rehash components of what’s still in the legal system. … We’ve tried to finish it, but it seems like it has a life of its own. I really feel like he didn’t need to go there.”

Davis said, “I just want to problem-solve.” If there are problems with the state’s purchasing statutes, lawmakers need to fix them, he said. Overall, he said of today’s hearing, “I thought that was a really good first day, I really did. You had school districts say, ‘This worked,’ ‘This worked better,’ ‘We can live with this,’ ‘Please don’t do that.’ That’s a healthy conversation to have.”