[CWG-RFP3] Seperabilty

[Guru Acharya]

Hi Greg,

I strongly agree with Avri. My comments follow in-line

On Mon, Nov 24, 2014 at 10:08 AM, Greg Shatan <gregshatanipc at gmail.com>
wrote:

> Avri,
>
> I believe that where we currently stand (understanding that nothing has
> been decided) is that the contract will have a limited duration, and that
> the review team will have the *option* to put out an RFP tied to the end
> of that contract.
>

[Guru]: The very fact that there is an "option" to put out a RFP represents
a very weak form of separability. A limited duration with an "option" to
RFP is a much weaker form of separability than a limited duration with a
"mandatory" RFP.


> I believe the sense was that it would be better to allow the review team
> to exercise its discretion and judgment, rather than making an RFP a
> requirement.
>

[Guru]: Strong objection was raised to this by Matthew and Malcolm at the
Frankfurt meeting. I hope by "sense" you don't mean a general sense of
agreement in the room. I further believe this decision (of duration of
contract, presumption of renewal, option to RFP etc) can not be left to the
discretion of the "periodic review team" because we are suggesting an
institutional arrangement wherein the periodic review team is essential
derived from ICANN structures. If a rouge periodic review team gives the
IANA contract to ICANN for a very long duration with a presumption of
renewal, then there will be no coming out of it without substantial
litigation. This would essentially make "separability" redundant.


>   Among other things, it was noted that the RFP process consumes
> significant amounts of time, money and resources (including human
> resources) for all parties, and that such a process should only take place
> if the circumstances warranted it.
>
> [Guru]: I would suggest CWG perform a "social cost benefit analysis"
instead of an "accounting cost benefit analysis". In this analysis, do
consider the social benefits in terms of accountability and the social
costs in terms of rents generated by status quoists. Also consider the
costs of chilling effects arising from litigation and arm-twisting to
maintain the status quo.


> The length of the contract's duration did not receive as much specific
> attention.  That said, my personal belief is that changing the term from
> that in the current contract will require justification (i.e., more
> justification than keeping it as it is) (also, I believe it is currently 3
> years, with two 2 year options).
>

[Guru]: I agree that if the duration of the contract is changed then a
logical nexus must be established between change in stewardship and the
changed duration of the contract.


> This discussion may have started because the "flow chart" did not
> explicitly mention the contract or its duration.  This was because the flow
> chart was intended to demonstrate the groups tentatively proposed to
> replace the NTIA's roles, and was not intended to summarize the whole of
> the potential proposal.
>

[Guru]: There was a concerted effort to have the term "RFP" removed from
the flowchart. The removal of the term was not for ease of graphical
demonstration. The term "RFP" was removed in response to opposition to
strong separability.
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