San Francisco Bay Area officials followed appropriate procedures in signing a disputed cooperative agreement with Motorola to pursue a $50 million federal grant to deploy a 700 MHz LTE network for public safety, according to a state agency review, but some local officials argue that the deal was signed on behalf of a non-existent entity.

On March 15, Alameda County Sheriff Gregory Ahern signed a cooperative agreement with Motorola to pursue a Broadband Technology Opportunities Program (BTOP) grant that resulted in the National Telecommunications and Information Administration (NTIA) awarding the company $50.6 million to build an LTE network. Ahern signed the agreement with Motorola on behalf of the Bay RICS Policy Group, which is described as the “governing body for the shared San Francisco Bay Area Regional Interoperability Communications System (Bay RICS).”

The California Emergency Management Agency (Cal EMA) conducted the review at the request of the Bay Area Urban Area Security Initiative (UASI) after local entities such as the city of San Jose and the county of Santa Clara expressed concerns that the procurement process was not appropriate for such a large contract.

However, the Cal EMA review noted that the deal with Motorola was not a contract but a cooperative agreement, which is governed by rules requiring only that “due diligence” be conducted prior to entering the arrangement. This standard was met, as Motorola was selected after four vendors made presentations to a review panel, according to a letter from Brendan Murphy, director of grants management for Cal EMA.

The UASI and Bay RICS met and exceeded the due-diligence standard needed to sign a cooperative agreement,” Murphy’s letter states. “In fact, the process that was engaged in is similar to a typical procurement that would have been done in the standard contractual buyer-seller relationship.

“It is the conclusion of this review that the Bay Area UASI and Bay RICS met every federal requirement for establishing the cooperative agreement with Motorola Inc. to apply for BTOP grant funds to build a mobile broadband solution for public safety.”

Heather Tannehill-Plamondon, the Bay Area UASI’s director of contract administration and project management, said the Cal EMA review was welcome news. Through the grant with Motorola and the vendor’s agreement to provide a 30% match, the region has more than $70 million to fund the buildout of a 193-site LTE network, she said.

“We’re pleased with the results of the Cal EMA report, because we hope that will give everyone a chance to sit back, take a deep breath and move forward with this really exciting opportunity that we have with NTIA on this grant,” Tannehill-Plamondon said.

That sentiment was not shared by the San Jose Mayor Chuck Reed and Santa Clara County Executive Jeff Smith, who quickly responded with a letter asking Cal EMA to rescind the report, noting that Ahern lacked the authority to sign the cooperative agreement with Motorola.

“The agreement signed between the Alameda County Sheriff and Motorola on March 15, 2010, represents that the Sheriff is ‘acting on behalf of the Bay RICS Policy Group,’” the letter states. “On March 15, the Bay RICS Policy Group did not exist. It first met on July 7, 2010.”

Tannehill-Plamondon said she could not recall when the Bay RICS Policy Group first met but acknowledged that its members “did not go into a meeting to discuss that cooperative agreement” with Motorola when it was signed on March 15.

In addition, the letter from Reed and Smith notes that the Bay RICS Policy Group is not the governing body of Bay RICS, despite the assertion in the cooperative agreement.

“There is no memorandum of understanding, joint powers authority or other arrangement under which the Bay RICS Policy Group or Alameda County Sheriff were granted the authority to contractually obligate the cities and counties of our region,” the letter states. “The Bay RIC Policy Group/Alameda County Sheriff had no authority to enter into any agreements with a private contractor on behalf of our 10-county region.”

Reed and Smith contend that the cooperative agreement with Motorola should have been voted on by the UASI Approval Authority, which includes representatives from Bay Area’s largest cities and counties and is subject to a memorandum of understanding among the local jurisdictions.

But Tannehill-Plamondon said the cooperative agreement did not require a vote from the approval authority.

“The approval authority is the approval authority for the Bay Area Urban Area Security Initiative [UASI],” she said. “The Bay RICS Policy Group is basically a working group that has been formed initially under the purview of the UASI but understanding that it is not going to be governed by UASI. The intention was never that the Policy Group would be governed by the UASI, but that it would be a group that would come together — [with] members of the entire region — to make policy decisions about shared assets.

“At this point, the Approval Authority is not involved in the BTOP process. The UASI did not apply for the BTOP grant. The UASI management team supported the application and worked on the application, but the UASI will not be administering that grant.”

In their joint letter, Reed and Smith claim “the General Manager of the UASI [Laura Phillips] and her staff exceeded their authority in pursuing this partnership with Motorola” and that “creating a new governing body” is beyond the authority of Phillips, the UASI staff or Ahern.

“Finally, and perhaps most important, no public vote was ever taken to partner with Motorola—not by the non-existent Bay RICS Policy Group, not by the UASI Approval Authority, nor by an local city and county,” the letter from Reed and Smith states. “At the Oct. 12 meeting, the UASI General Manager confirmed that no one voted for this partnership or to select Motorola.

“Given the above, it is preposterous to think that this ‘process met or exceeded the due-diligence requirements,’ as Cal EMA states.”

For more on this topic, see the November print edition of Urgent Communications.