[CWG-RFP3] Contract re-bidding at regular intervals or permanent mandate?

[Bertrand de La Chapelle]

Hi Milton,

See comments inline.

On Wed, Nov 12, 2014 at 6:40 PM, Milton L Mueller <mueller at syr.edu> wrote:

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> ICANN was fundamentally created to handle the IANA functions (cf the
> Bylaws, where coordination of allocation and assignment of the three sets
> of unique identifiers is mission n°1). It has performed this without major
> problems so far and it should not be excluded a priori to confer this
> mission permanently to the
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> MM: Actually there were major problems in the early days. And the logic of
> saying, “you have been going a good job recently while you were accountable
> to us, so now you don’t need to be accountable anymore” has always escaped
> me. The NTIA role was not fundamentally about workflow or mandate, it was
> about *accountability*. Periodic contracting is the only acceptable
> accountability mechanism on the table, imho. There can be all kinds of
> oversight mechanisms but they are ineffective, even meaningless unless
> someone can pull the trigger on a contract.
>

BPC: To clarify: the NTIA "mandate" role we are discussing here does indeed
include in my view both conferring the responsibility through the contract
(hence providing legitimacy) and the capacity to rescind or not reattribute
it (what you label accountability). But in my view, accountability was also
exercised on a regular basis, through the monitoring of performance, the
possibility of audits and, actually, also the role of NTIA as RZM process
administrator (on each modification). In this regard, moving the contract
somewhere else, as "nuclear option", was the ultimate accountability stop
but not the alpha and omega of the accountability system.

Second, please do not put words in my mouth. I never said (nor meant) "*you
have been doing a good job recently when you were accountable, so now you
do not need to be accountable anymore*". I certainly do not mean no
accountability, hence the questions I listed at the end of my message (see
further comments below). I respect your arguments and try to understand and
ponder them honestly. I expect the same in return. Otherwise there is no
fruitful exchange.

More precisely, you say: "Periodic contracting is the only acceptable
accountability mechanism on the table, imho. There can be all kinds of
oversight mechanisms but they are ineffective, even meaningless unless
someone can pull the trigger on a contract."

Where we disagree is on the necessary link you make between the two
sentences. I fully support the second one: the possibility of "pulling the
trigger on a contract" for mis-performance is indispensable. But my
argument is that periodic re-bidding of such contract by one external
entity (to be determined) is only one option and not the "only acceptable
accountability mechanism" as you

Other options (non-exhaustive list) include for example: the right to
denounce a permanent arrangement (as is the case with the Affirmation of
Commitments), a long duration arrangement with an expectation of renewal in
the absence of fault (what is implemented in the new gTLD program), or a
framework contract imposed upon a party with strong compliance teeth
(remember the difficult negotiations of the Registrar AA).

Furthermore, ultimate accountability does not need to come from a single
point of authority. It can be more distributed. For instance, if the
different user communities of the IANA functions were to establish separate
agreements with ICANN (or recognize that it plays this role for them) with
the capacity to cancel this agreement on the basis of specific criteria
(including performance), the capacity to "pull the trigger on a contract"
would be fulfilled.

The question of accountability should not be limited to the single model of
replacing the NTIA by another single structure (to be created), continuing
without question the practice of re-bidding that was the result of
circumstances as much as a voluntary choice, and focusing on the "nuclear
option" as the most important aspect, neglecting on the way more continuous
accountability dimensions.



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> Were the overall community to agree - in the course of these stewardship
> transition discussions - that this mission is conferred on a permanent
> basis to ICANN, a large part of this problem goes away.
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> MM: And so does accountability!! That will never be an acceptable solution
> to a large part of this community.
>

I refuse the rapid link between "permanent mandate" and "no accountability"
for the reasons above. Permanent organizations can be accountable, pending
appropriate mechanisms. The two things are distinct. And should not be
artificially linked.

More generally speaking, I have difficulty seeing why periodic re-bidding
at short intervals would foster stability in the system more than a
permanent architecture with sufficiently strong safeguards.

As for whether this could be acceptable to the community, let's not
prejudge what the ultimate decision will be. All I argue for is that we
should include in our thinking the following option: what would be the
accountability mechanisms appropriate IANA were permanently managed by
ICANN?


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> It would then transform into the following questions:
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> - who sets the SLAs for the three sets (in the case of this group, for the
> two names communities)?
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> - who controls performance vis-à-vis these SLAs?
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> MM: The whole concept of an SLA means, “I am selecting you to provide
> service, and if the service doesn’t meet the standards in the SLAs, I will
> go elsewhere. Without that recourse of moving the contract, an SLA is not
> very meaningful.
>

BPC: Milton, your response here conveniently omits the bullet points that
followed in my post. They are enough to clearly confirm that a "recourse to
move the contract" was clearly in my mind. I repeat them here for
convenience:

- what form do the corresponding arrangement(s) take?
- who has the power to denounce the arrangement(s) for lack of performance?
- who (or what) could trigger a re-bidding of the entire arrangement or
parts thereof?
- what would be the exceptional procedure adopted in that case?




>
> The situation is similar to the discussion on functional versus structural
> separation. The last IANA contract has established a useful functional
> separation and I sense that the community is keen on strengthening it,
> which seems legitimate and strongly agree with. Some, including you in
> particular, would prefer a completely separate entity.
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> Not any more. The main point of having a separate entity was to enhance
> accountability. If you can enhance accountability by periodically
> recontracting the IANA functions, all you need is functional separation in
> the short term.
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BPC: I now understand better the link you make between the two components
(separation and recontracting) and welcome the evolution in your thinking.
But for the reasons above, I do not think that periodic recontracting is
the *only* solution that could provide accountability to a level sufficient
to stay with the functional separation.

I hope this clarifies and helps. Happy to continue the exchange.

Best

Bertrand
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