NTIA BEAD & FCC NG911 Proposed Rules – Seek Comments

NTIA Seeks Comment on Certain Uniform Guidance (2.CFR.200) Exemptions for BEAD

Does complying with federal procurement rules impact your decision to apply for BEAD funding? How much trouble have you had understanding and applying the Uniform Guidance, or federal statute that governs federal awards, for your federal broadband grants?

You have a unique opportunity to tell the National Telecommunications and Information Administration (NTIA) how important flexibility is when administering your federal broadband grant project. Given the confusion around the Uniform Guidance, NTIA is now considering exempting certain provisions of the Uniform Guidance for the Broadband Equity, Access, and Development (BEAD) Program.

Specifically, NTIA seeks comment on whether to allow states (Eligible Entities) the ability to waive certain Uniform Guidance provisions to facilitate and expedite broadband deployment, following similar guidance from the U.S. Department of the Treasury’s (Treasury) Coronavirus State and Local Fiscal Recovery Funds and Capital Projects Fund. These provisions include exempting subrecipients from the Uniform Guidance requirements to retain program income without restriction, including retaining program income for profit, waiving cost principle rules, authorizing Eligible Entities to exempt subrecipients from certain procurement requirements, and allowing Eligible Entities to provide subrecipients flexibility concerning budget revisions.

Where are we now with BEAD?

On June 16, 2023, NTIA announced allocations to all 50 states, the District of Columbia, and five territories under the $42.45 billion BEAD program from President Biden’s Bipartisan Infrastructure Law. Eligible Entities received their formal allocation notice on June 30, 2023.

Under the Bipartisan Infrastructure Law, Eligible Entities have 180 days from the date of that formal notice to submit their Initial Proposals describing how they propose to run their grant programs. Eligible Entities may begin submitting their Initial Proposals starting July 1, 2023. Once NTIA approves an Initial Proposal, which will occur on a rolling basis, Eligible Entities will be permitted to request access to at least 20 percent of their allocated funds.

As part of their award, every Eligible Entity will be required to conduct a subgrantee selection process to identify subgrantees that will build and operate networks to deliver qualifying broadband service to every unserved and underserved location in its jurisdiction.

What’s the current relationship between the Uniform Guidance and the BEAD Program?

In the Request for Comments, NTIA expressly states that the Uniform Guidance will apply to the BEAD Program through the award terms and conditions. NTIA will treat subgrantees as subrecipients and not contractors to the Eligible Entity as they will “carr[y] out a portion of a Federal award.”

What does this mean for your company?

Should NTIA not do anything, these provisions of the Uniform Guidance could deter the participation of internet service providers in the BEAD Program and/or increase the costs that subgrantees will incur to participate in the program. The good news is that NTIA is seeking to follow Treasury’s approach and waive certain provisions to make it easier for subgrantees to administer their awards.

Let NTIA know you support waiving some of these rules, which will provide you with much needed flexibility in the areas of procurement, program income, fixed amount and cost principles, audits, property standards, and budget revisions. For example, if you are deploying broadband in a unique geographic area (lake, ocean, tribal, federal land, etc.), you will want certain flexibility in soliciting contractors and vendors. Or have you received limited responses to an RFP but not enough to meet the procurement rules? We urge you to tell NTIA why these exemptions are critical to your business in successfully applying for and administering a BEAD grant.

It is critical that NTIA operate BEAD as effectively and efficiently as possible, given the unprecedented amount of funding this program provides. Where providers didn’t have much say in the past on the application of the Uniform Guidance, this is your opportunity to make a difference as a program participant.

If you are interested in commenting, please contact Jennifer Holtz, VP, Regulatory Affairs Department, or by calling 301-459-7590 during normal office hours.