The attached letter has been sent to: Janet Reno and Joel Klein at
the U.S. Department of Justice, The U.S. Inspector General, The U.S.
General Services Administration and the G.A.O, and the House and
Senate Appropriations, Ethics, and Commerce Committees.
February 26, 2000
Dear ,
The U.S. Department of Commerce and its National Telecommunications and Information
Administration are engaged in an illicit process to give regulatory control of the
Internet to special interests, in violation of their White Paper On the Internet and
of federal antitrust, administrative, and contracting laws.
For example, they are using incorrectly granted government contracts
(http://www.icann.org/general/iana-contract-09feb00.htm,
http://www.icann.org/general/iana-proposal-02feb00.htm) to escape debate,
accountability, and Congressional oversight.
As well as being an illegal use of the U.S. Government's contracting authority
(because the regulation of communications is not a service or good within the meaning
of the laws that define the federal government's purchasing power), Purchase Order No.
40S8NT067D20 (NTIA/ICANN) - for the delegation of Internet address allocation
authority - is in violation of Federal Acquisition Regulations (48 CFR Chapter 1 [see
below]), for the following reasons:
1) There were no competitors for the contract;
2) The offer was not made publicly;
3) The contract was not put out for bids;
4) The supposed service being contracted is not a service but a regulatory function
falling under the Commerce Clause of the U.S. Constitution, and thus cannot be
contracted without Congressional legislation, and is not within the charter of the
NTIA;
5) Contractor NTIA's representative, Beckwith Burr, was instrumental in the formation
of ICANN, the recipient of the contract;
6) Burr is personally acquainted with companies and individuals financing recipient
ICANN and has facilitated its acquisition of the contract;
7) Burr has not ensured that recipient ICANN conform to contract requirements of the
NTIA, specifically that recipient be a membership organization representative of a
consensus of service stakeholders including users;
8) Burr sits on an advisory committee of recipient ICANN (the Governmental Advisory
Committee [GAC]), which is a per se organizational conflict;
9) The CEO of the recipient - ICANN President Michael Roberts - is the representative
of an organization (EDUCAUSE) contracting services with ICANN that fall within those
subject to Purchase Order No. 40S8NT067D20 , and Mr. Roberts is therefore in conflict
of interests with the award;
10) Members of ICANN's Board of Directors are representatives of special interests,
such as IBM, that will have unfair competitive advantage in controlling the contracted
Internet
services.
................................................................................................................................................
Federal Acquisition Regulation (48 CFR Chapter 1) (http://www.arnet.gov/far/)
Subpart 9.5--Organizational and Consultant Conflicts of Interest
.500 Scope of subpart.
This subpart--
(a) Prescribes responsibilities, general rules, and procedures for identifying,
evaluating, and resolving organizational conflicts of interest;
"Organizational conflict of interest" means that because of other activities or
relationships with other persons, a person is unable or potentially unable to render
impartial assistance or advice to
theGovernment, or the person's objectivity in performing the contract work is or might
be otherwise impaired, or a person has an unfair competitive advantage.
9.502 Applicability.
(a) This subpart applies to contracts with either profit or nonprofit organizations,
including nonprofit organizations created largely or wholly with Government funds.
(c) An organizational conflict of interest may result when factors create an actual or
potential conflict of interest on an instant contract, or when the nature of the work
to be performed on the
instant contract creates an actual or potential conflict of interest on a future
acquisition. In the lattercase, some restrictions on future activities of the
contractor may be required.
9.505 General rules.
The two underlying principles are--
(a) Preventing the existence of conflicting roles that might bias a contractor's
judgment; and
(b) Preventing unfair competitive advantage. In addition to the other situations
described in this subpart, an unfair competitive advantage exists where a contractor
competing for award of any Federal contract possesses--
(1) Proprietary information that was obtained from a Government official without
proper authorization; or
(2) Source selection information (as defined in 3.104�3) that is relevant to the
contract but is not available to all competitors, and such information would assist
that contractor in obtaining the
contract.
................................................................................................................................................
Yours,
Michael Sondow
(for the ICIIU)
