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As mentioned at our meeting, one source or possible template for higher ed licensing are the NetPlus contracts. Attached is the box one. Okay it is not software but a lot of issues are common. As I read the contract, it is not confidential so I think I can share it. As I understand, I2 also has state specific amendments. Attorneys from several campuses work on the contracts > > > Chief Information Officer (CIO) (512)322-3774 > The University of Texas System > CTJ 2.218 78701 > > ********** Participation and subscription information for this EDUCAUSE Constituent Group discussion list can be found at http://www.educause.edu/groups/.
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Internet2_NET+_Box_Enterprise_Customer_Agreement.pdf203.63 KB

Comments

Thanks Marg.

Of concern to many of us at public institutions is the fact that NET+ does not do competitive solicitations.  This can cause major hurdles for procurement folks at public institutions that require competitive bidding. 



Ruth Ginzberg, CISSP, CTPS
Sr. I.T. Procurement Specialist
University of Wisconsin System

rginzberg@uwsa.edu
608-890-3961


From: "Marg Knox" <mknox@AUSTIN.UTEXAS.EDU>
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Sent: Tuesday, October 29, 2013 4:37:49 PM
Subject: [LICENSING] An example Net+ contract


As mentioned at our meeting, one source or possible template for higher ed licensing are the NetPlus contracts. Attached is the box one. Okay it is not software but a lot of issues are common.


As I read the contract, it is not confidential so I think I can share it. As I understand, I2 also has state specific amendments.

Attorneys from several campuses work on the contracts

>
>
> Chief Information Officer (CIO)     (512)322-3774
> The University of Texas System
> CTJ 2.218 78701
>
>

**********
Participation and subscription information for this EDUCAUSE Constituent Group discussion list can be found at http://www.educause.edu/groups/.


********** Participation and subscription information for this EDUCAUSE Constituent Group discussion list can be found at http://www.educause.edu/groups/.

Thanks Ruth, I was thinking about just using the clauses as an example template discussion but you bring up an interesting point. It does make it hard to fall under various states's group purchasing provisions. Let me see what I2 has to,say

Sent from my iPad
Margaret (Marg) H. Knox
The University of Texas System


FYI, from Andrew at I2... Confirms what we heard.

Andrew is willing to set up a time to discuss amd get feedback, if there is interest. 

I learned that I2 will not respond to an RFP...









Marg, 

Apologies for the delay replying. I’ve been traveling back from meetings in Beijing so am a bit behind on my emails. 

We have found that once procurement and purchasing folks learn more about the NET+ approach that we undertake during the service validation the concerns about competitive bidding tend to fade. It is important to note that Internet2 does not respond to RFPs since all of the information about NET+ services are published, public, and consistent (each institution will get the same price and terms). 

In particular we have had some very positive feedback from many procurement officers, including some from public institutions and from within the University of Wisconsin system. We are working on some upcoming webinars and discussions specifically focused on purchasing / procurement as part of the Cloud Proud. We will definitely let you and the licensing group know when the next one is scheduled.

Also copying in Khalil and Jerry for their thoughts. We’d be glad to discuss further and perhaps set up a presentation for the CIC group and/or others

-Andrew





Begin forwarded message:

From: "Knox, Marg" <mknox@AUSTIN.UTEXAS.EDU>
Date: October 29, 2013 4:55:33 PM CDT
To: <LICENSING@LISTSERV.EDUCAUSE.EDU>
Subject: Re: [LICENSING] An example Net+ contract
Reply-To: The EDUCAUSE Software Licensing Issues Constituent Group Listserv <LICENSING@LISTSERV.EDUCAUSE.EDU>

Thanks Ruth, I was thinking about just using the clauses as an example template discussion but you bring up an interesting point. It does make it hard to fall under various states's group purchasing provisions. Let me see what I2 has to,say

Sent from my iPad
Margaret (Marg) H. Knox
The University of Texas System

ARGH.  This is the same misunderstanding NET+ exhibited during its recent videoconference with CIC (Big 10) purchasers.

NOBODY WANTS NET+ TO RESPOND TO RFPs.  (How much more clearly can that be said?)  

Or I don't know, maybe some institutions might want them to respond to RFPs, but that is not the issue at hand right now.

The issue is:  NET+ does not competitively bid the contracts that NET+ enters into with entities like Box, HP, etc., etc. (which NET+ then offers to Higher Ed institutions).  I don't care how many lawyers and CIOs reviewed them.   From a procurement standpoint, the contracts they are trying to sell us are no different from agreements entered into with a back slap and a handshake in a secret smoke-filled room because THEY WERE NOT COMPETITIVELY BID.

That is what makes it difficult for those of us at public institutions in states with LAWS that require transparency and competitive bidding to use those contracts.

Yes, there were some people at the University of Wisconsin-Madison who spent NINE MONTHS getting a state government waiver from the competitive bidding requirement in order to purchase Box.com from NET+.  Rest assured that we do not have enough excess personnel capacity system wide to devote that amount of time to obtaining a waiver each time that any one of our 26 campuses wishes to purchase anything from NET+

This is NOT just a "Wisconsin" issue (or not just "my personal" issue) -- trust me.

NET+ does not conduct its business in ways that conform with the State of Wisconsin's (and, according to my understanding, other States' as well) procurement requirements.  There are ways that we can request waivers for individual purchases on individual occasions.  Those are tedious, difficult, and time consuming processes for purchasing personnel -- a fact which perhaps some who see our only role as that of "getting in the way of progress" or "cutting Purchase Orders" may not  particularly appreciate. 

Not to mention that those waiver processes require that purchasing personnel repeatedly carry forth arguments which we ourselves may have trouble believing (such as an argument that Box.com via NET+ is a sole source).  Some of us may have trouble believing that there are no possible other providers of cloud storage, and therefore competition does not exist in that market space.

If NET+ would simply COMPETE the contracts that it awards rather than selecting its vendors via some mysterious process of handshakes in smoke filled rooms, it would be a lot easier for public institutions to collaborate with them in the ways that they envision.



Ruth Ginzberg, CISSP, CTPS
Sr. I.T. Procurement Specialist
University of Wisconsin System

rginzberg@uwsa.edu
608-890-3961


From: "Marg Knox" <mknox@AUSTIN.UTEXAS.EDU>
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Sent: Wednesday, October 30, 2013 8:42:07 PM
Subject: [LICENSING] Fwd: [LICENSING] An example Net+ contract


FYI, from Andrew at I2... Confirms what we heard.

Andrew is willing to set up a time to discuss amd get feedback, if there is interest. 

I learned that I2 will not respond to an RFP...









Marg, 

Apologies for the delay replying. I’ve been traveling back from meetings in Beijing so am a bit behind on my emails. 

We have found that once procurement and purchasing folks learn more about the NET+ approach that we undertake during the service validation the concerns about competitive bidding tend to fade. It is important to note that Internet2 does not respond to RFPs since all of the information about NET+ services are published, public, and consistent (each institution will get the same price and terms). 

In particular we have had some very positive feedback from many procurement officers, including some from public institutions and from within the University of Wisconsin system. We are working on some upcoming webinars and discussions specifically focused on purchasing / procurement as part of the Cloud Proud. We will definitely let you and the licensing group know when the next one is scheduled.

Also copying in Khalil and Jerry for their thoughts. We’d be glad to discuss further and perhaps set up a presentation for the CIC group and/or others

-Andrew





Begin forwarded message:

From: "Knox, Marg" <mknox@AUSTIN.UTEXAS.EDU>
Date: October 29, 2013 4:55:33 PM CDT
To: <LICENSING@LISTSERV.EDUCAUSE.EDU>
Subject: Re: [LICENSING] An example Net+ contract
Reply-To: The EDUCAUSE Software Licensing Issues Constituent Group Listserv <LICENSING@LISTSERV.EDUCAUSE.EDU>

Thanks Ruth, I was thinking about just using the clauses as an example template discussion but you bring up an interesting point. It does make it hard to fall under various states's group purchasing provisions. Let me see what I2 has to,say

Sent from my iPad
Margaret (Marg) H. Knox
The University of Texas System

For related but somewhat different reasons, I am concerned about the trend towards “pre-negotiated agreements” through groups like the Internt2 NET+ where we unfortunately run into this very quickly:

 

Please note that given the very extensive contract negotiations over the past six months, we will not be able to make any changes in the attached contract except to add state-mandated requirements that may affect public institutions in certain states (there is a specific appendix for this). The university counsels from our early adopter schools, as well as Internet2’s counsel, will be available to talk with your counsel, if needed, to explain how we arrived at this custom agreement specifically created for higher education institutions.

 

Frankly I don’t really need to hear about how Box and Internet2 decided what terms were important to me and what I could live with. I am interested in what the agreement says, which under NET+ has become a “take-it-or-leave-it” adhesion contract. If I were sitting down to compare RFP responses today and had to choose between an Internet2 contract and one that I freely negotiated with the vendor, I’ll take the latter option in almost every case. I know what I need to see in the contracts I work on and I’m usually successful at getting it or something very close to it.

 

Vendors on the other hand *love* the direction of consortium agreements, and my worry is that over time more vendors may seek to limit the terms of their deals to those made via a consortium. I believe if the NET+ model begins to take larger hold, the power of any institution to negotiate favorable terms may diminish significantly. Instead of a consortium achieving better terms through combined bargaining power, we seem to be headed towards a situation where vendors are able to use a mediocre agreement as a tool to prevent institutions from getting better terms through fair competition.

 

Contrast the above statement from Internet2 with one of the terms from the Box Internet2 “Enterprise Customer Agreement” (ECA) to which you will agree if you sign up:

 

10.10 No Drafting Presumption. The Parties agree that the terms of this Agreement were mutually negotiated and shall not be construed either in favor or against either of them or Box by virtue of the extent of the Parties’ or Box’s involvement in preparing or reviewing this Agreement.

 

So the idea is even though Box/Internet2 wrote the entire agreement and won’t change anything in the contract save for certain state mandated clauses, they will require a provision (which again, they will not change) which says the terms of the contract were freely negotiated by the parties signing it (this means you) with the expectation a reviewing court will treat the language of the contract just as if all the terms were mutually drafted with equal bargaining power by all the signing parties, even though the only power you actually have is to fill in the blanks and sign your name.

 

This isn’t my kind of negotiation.

 

Regarding the bid issue, I can’t envision any situation where a vendor’s stated approach to “service validation” would cause a reasonable Purchasing/Finance office to forget about bid requirements. It might be helpful if NET+ would respond to RFPs so their services could be evaluated openly. If the NET+ process and resulting product are really fantastic, then they should be the clear and obvious choice amongst a field of fairly and equally considered competitors.

 

Loren

 

_____________________________________________________

Loren Malm, J.D., CISSP

AVP, Information Technology

Ball State University, Muncie, IN 47306-0015

phone: 765-285-2001 fax: 765-285-4260 email: lmalm@bsu.edu

 

 

 

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Ruth Ginzberg
Sent: Thursday, October 31, 2013 7:31 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

ARGH. This is the same misunderstanding NET+ exhibited during its recent videoconference with CIC (Big 10) purchasers.

NOBODY WANTS NET+ TO RESPOND TO RFPs. (How much more clearly can that be said?)  

Or I don't know, maybe some institutions might want them to respond to RFPs, but that is not the issue at hand right now.

The issue is: NET+ does not competitively bid the contracts that NET+ enters into with entities like Box, HP, etc., etc. (which NET+ then offers to Higher Ed institutions). I don't care how many lawyers and CIOs reviewed them.  From a procurement standpoint, the contracts they are trying to sell us are no different from agreements entered into with a back slap and a handshake in a secret smoke-filled room because THEY WERE NOT COMPETITIVELY BID.

That is what makes it difficult for those of us at public institutions in states with LAWS that require transparency and competitive bidding to use those contracts.

Yes, there were some people at the University of Wisconsin-Madison who spent NINE MONTHS getting a state government waiver from the competitive bidding requirement in order to purchase Box.com from NET+. Rest assured that we do not have enough excess personnel capacity system wide to devote that amount of time to obtaining a waiver each time that any one of our 26 campuses wishes to purchase anything from NET+

This is NOT just a "Wisconsin" issue (or not just "my personal" issue) -- trust me.

NET+ does not conduct its business in ways that conform with the State of Wisconsin's (and, according to my understanding, other States' as well) procurement requirements. There are ways that we can request waivers for individual purchases on individual occasions. Those are tedious, difficult, and time consuming processes for purchasing personnel -- a fact which perhaps some who see our only role as that of "getting in the way of progress" or "cutting Purchase Orders" may not particularly appreciate.

Not to mention that those waiver processes require that purchasing personnel repeatedly carry forth arguments which we ourselves may have trouble believing (such as an argument that Box.com via NET+ is a sole source). Some of us may have trouble believing that there are no possible other providers of cloud storage, and therefore competition does not exist in that market space.

If NET+ would simply COMPETE the contracts that it awards rather than selecting its vendors via some mysterious process of handshakes in smoke filled rooms, it would be a lot easier for public institutions to collaborate with them in the ways that they envision.


Ruth Ginzberg, CISSP, CTPS

Sr. I.T. Procurement Specialist
University of Wisconsin System

rginzberg@uwsa.edu
608-890-3961

 

 

From: "Marg Knox" <mknox@AUSTIN.UTEXAS.EDU>
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Sent: Wednesday, October 30, 2013 8:42:07 PM
Subject: [LICENSING] Fwd: [LICENSING] An example Net+ contract


FYI, from Andrew at I2... Confirms what we heard.

 

Andrew is willing to set up a time to discuss amd get feedback, if there is interest. 

 

I learned that I2 will not respond to an RFP...

 

 

 

 

 

 

 

 

 

Marg, 

 

Apologies for the delay replying. I’ve been traveling back from meetings in Beijing so am a bit behind on my emails. 

 

We have found that once procurement and purchasing folks learn more about the NET+ approach that we undertake during the service validation the concerns about competitive bidding tend to fade. It is important to note that Internet2 does not respond to RFPs since all of the information about NET+ services are published, public, and consistent (each institution will get the same price and terms). 

 

In particular we have had some very positive feedback from many procurement officers, including some from public institutions and from within the University of Wisconsin system. We are working on some upcoming webinars and discussions specifically focused on purchasing / procurement as part of the Cloud Proud. We will definitely let you and the licensing group know when the next one is scheduled.

 

Also copying in Khalil and Jerry for their thoughts. We’d be glad to discuss further and perhaps set up a presentation for the CIC group and/or others

 

-Andrew

 

 

 

 


Begin forwarded message:

From: "Knox, Marg" <mknox@AUSTIN.UTEXAS.EDU>
Date: October 29, 2013 4:55:33 PM CDT
To: <LICENSING@LISTSERV.EDUCAUSE.EDU>
Subject: Re: [LICENSING] An example Net+ contract
Reply-To: The EDUCAUSE Software Licensing Issues Constituent Group Listserv <LICENSING@LISTSERV.EDUCAUSE.EDU>

Thanks Ruth, I was thinking about just using the clauses as an example template discussion but you bring up an interesting point. It does make it hard to fall under various states's group purchasing provisions. Let me see what I2 has to,say

Sent from my iPad

Margaret (Marg) H. Knox

The University of Texas System


Loren and Ruth, I agree with many of your worries!

 

And I certainly agree we don’t want to force I2 to respond to RFPs (too expensive). However, I do believe they can do a competitive bidding process themselves without choking to death or mucking up their plan and that criteria could be included on best value including sponsorship and success at member campuses.

 

I don’t think companies can limit us to consortiums per se though due to Fair trade law (let me note I am not an attorney and Loren is!!) but they can effectively do it by providing the better pricing there somewhat in exchange for more on their terms. After all, as I understand Fair Trade law wrt non profit higher education , a company is not bound to treat us the same as they do commercial or state agency customers, thank heavens, but we all know that differences do come into play within our segment (volume, prestige of customer, other work with the customer such as testing etc, on and on).

 

I too, at the scale of UT, assume that push comes to shove, I will get modified terms if it is a big enough deal. I realize this does cost the vendor money (and hence, us more money). But for so long vendor contracts have been ridiculously one sided to start out with.  I don’t know what the balance is. It is costlier to have to negotiate but when faced with ridiculously one sided… sigh, none of us would be literate if it had been this hard to buy a book.

 

I have asked I2 to hold two calls for us to discuss these issues…

 

____________________________________________________

Margaret H. Knox                  mknox@utsystem.edu

 

Chief Information Officer (CIO)     (512)322-3774   

The University of Texas System

CTJ 2.218 78701

      

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Malm, Loren
Sent: Thursday, October 31, 2013 9:58 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

For related but somewhat different reasons, I am concerned about the trend towards “pre-negotiated agreements” through groups like the Internt2 NET+ where we unfortunately run into this very quickly:

 

Please note that given the very extensive contract negotiations over the past six months, we will not be able to make any changes in the attached contract except to add state-mandated requirements that may affect public institutions in certain states (there is a specific appendix for this). The university counsels from our early adopter schools, as well as Internet2’s counsel, will be available to talk with your counsel, if needed, to explain how we arrived at this custom agreement specifically created for higher education institutions.

 

Frankly I don’t really need to hear about how Box and Internet2 decided what terms were important to me and what I could live with. I am interested in what the agreement says, which under NET+ has become a “take-it-or-leave-it” adhesion contract. If I were sitting down to compare RFP responses today and had to choose between an Internet2 contract and one that I freely negotiated with the vendor, I’ll take the latter option in almost every case. I know what I need to see in the contracts I work on and I’m usually successful at getting it or something very close to it.

 

Vendors on the other hand *love* the direction of consortium agreements, and my worry is that over time more vendors may seek to limit the terms of their deals to those made via a consortium. I believe if the NET+ model begins to take larger hold, the power of any institution to negotiate favorable terms may diminish significantly. Instead of a consortium achieving better terms through combined bargaining power, we seem to be headed towards a situation where vendors are able to use a mediocre agreement as a tool to prevent institutions from getting better terms through fair competition.

 

Contrast the above statement from Internet2 with one of the terms from the Box Internet2 “Enterprise Customer Agreement” (ECA) to which you will agree if you sign up:

 

10.10 No Drafting Presumption. The Parties agree that the terms of this Agreement were mutually negotiated and shall not be construed either in favor or against either of them or Box by virtue of the extent of the Parties’ or Box’s involvement in preparing or reviewing this Agreement.

 

So the idea is even though Box/Internet2 wrote the entire agreement and won’t change anything in the contract save for certain state mandated clauses, they will require a provision (which again, they will not change) which says the terms of the contract were freely negotiated by the parties signing it (this means you) with the expectation a reviewing court will treat the language of the contract just as if all the terms were mutually drafted with equal bargaining power by all the signing parties, even though the only power you actually have is to fill in the blanks and sign your name.

 

This isn’t my kind of negotiation.

 

Regarding the bid issue, I can’t envision any situation where a vendor’s stated approach to “service validation” would cause a reasonable Purchasing/Finance office to forget about bid requirements. It might be helpful if NET+ would respond to RFPs so their services could be evaluated openly. If the NET+ process and resulting product are really fantastic, then they should be the clear and obvious choice amongst a field of fairly and equally considered competitors.

 

Loren

 

_____________________________________________________

Loren Malm, J.D., CISSP

AVP, Information Technology

Ball State University, Muncie, IN 47306-0015

phone: 765-285-2001 fax: 765-285-4260 email: lmalm@bsu.edu

 

 

 

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Ruth Ginzberg
Sent: Thursday, October 31, 2013 7:31 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

ARGH. This is the same misunderstanding NET+ exhibited during its recent videoconference with CIC (Big 10) purchasers.

NOBODY WANTS NET+ TO RESPOND TO RFPs. (How much more clearly can that be said?)  

Or I don't know, maybe some institutions might want them to respond to RFPs, but that is not the issue at hand right now.

The issue is: NET+ does not competitively bid the contracts that NET+ enters into with entities like Box, HP, etc., etc. (which NET+ then offers to Higher Ed institutions). I don't care how many lawyers and CIOs reviewed them.  From a procurement standpoint, the contracts they are trying to sell us are no different from agreements entered into with a back slap and a handshake in a secret smoke-filled room because THEY WERE NOT COMPETITIVELY BID.

That is what makes it difficult for those of us at public institutions in states with LAWS that require transparency and competitive bidding to use those contracts.

Yes, there were some people at the University of Wisconsin-Madison who spent NINE MONTHS getting a state government waiver from the competitive bidding requirement in order to purchase Box.com from NET+. Rest assured that we do not have enough excess personnel capacity system wide to devote that amount of time to obtaining a waiver each time that any one of our 26 campuses wishes to purchase anything from NET+

This is NOT just a "Wisconsin" issue (or not just "my personal" issue) -- trust me.

NET+ does not conduct its business in ways that conform with the State of Wisconsin's (and, according to my understanding, other States' as well) procurement requirements. There are ways that we can request waivers for individual purchases on individual occasions. Those are tedious, difficult, and time consuming processes for purchasing personnel -- a fact which perhaps some who see our only role as that of "getting in the way of progress" or "cutting Purchase Orders" may not particularly appreciate.

Not to mention that those waiver processes require that purchasing personnel repeatedly carry forth arguments which we ourselves may have trouble believing (such as an argument that Box.com via NET+ is a sole source). Some of us may have trouble believing that there are no possible other providers of cloud storage, and therefore competition does not exist in that market space.

If NET+ would simply COMPETE the contracts that it awards rather than selecting its vendors via some mysterious process of handshakes in smoke filled rooms, it would be a lot easier for public institutions to collaborate with them in the ways that they envision.

Ruth Ginzberg, CISSP, CTPS

Sr. I.T. Procurement Specialist
University of Wisconsin System

rginzberg@uwsa.edu
608-890-3961

 

 

From: "Marg Knox" <mknox@AUSTIN.UTEXAS.EDU>
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Sent: Wednesday, October 30, 2013 8:42:07 PM
Subject: [LICENSING] Fwd: [LICENSING] An example Net+ contract


FYI, from Andrew at I2... Confirms what we heard.

 

Andrew is willing to set up a time to discuss amd get feedback, if there is interest. 

 

I learned that I2 will not respond to an RFP...

 

 

 

 

 

 

 

 

 

Marg, 

 

Apologies for the delay replying. I’ve been traveling back from meetings in Beijing so am a bit behind on my emails. 

 

We have found that once procurement and purchasing folks learn more about the NET+ approach that we undertake during the service validation the concerns about competitive bidding tend to fade. It is important to note that Internet2 does not respond to RFPs since all of the information about NET+ services are published, public, and consistent (each institution will get the same price and terms). 

 

In particular we have had some very positive feedback from many procurement officers, including some from public institutions and from within the University of Wisconsin system. We are working on some upcoming webinars and discussions specifically focused on purchasing / procurement as part of the Cloud Proud. We will definitely let you and the licensing group know when the next one is scheduled.

 

Also copying in Khalil and Jerry for their thoughts. We’d be glad to discuss further and perhaps set up a presentation for the CIC group and/or others

 

-Andrew

 

 

 

 


Begin forwarded message:

From: "Knox, Marg" <mknox@AUSTIN.UTEXAS.EDU>
Date: October 29, 2013 4:55:33 PM CDT
To: <LICENSING@LISTSERV.EDUCAUSE.EDU>
Subject: Re: [LICENSING] An example Net+ contract
Reply-To: The EDUCAUSE Software Licensing Issues Constituent Group Listserv <LICENSING@LISTSERV.EDUCAUSE.EDU>

Thanks Ruth, I was thinking about just using the clauses as an example template discussion but you bring up an interesting point. It does make it hard to fall under various states's group purchasing provisions. Let me see what I2 has to,say

Sent from my iPad

Margaret (Marg) H. Knox

The University of Texas System


All

I just got this from I2, see attached.

 

Ruth, is this part of the 9 month effort at UW for buying Box that you mentioned? UW is mentioned.

 

I still wish they would do a competitive bid…

____________________________________________________

Margaret H. Knox                  mknox@utsystem.edu

 

Chief Information Officer (CIO)     (512)322-3774   

The University of Texas System

CTJ 2.218 78701

      

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Knox, Marg
Sent: Thursday, October 31, 2013 11:40 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

Loren and Ruth, I agree with many of your worries!

 

And I certainly agree we don’t want to force I2 to respond to RFPs (too expensive). However, I do believe they can do a competitive bidding process themselves without choking to death or mucking up their plan and that criteria could be included on best value including sponsorship and success at member campuses.

 

I don’t think companies can limit us to consortiums per se though due to Fair trade law (let me note I am not an attorney and Loren is!!) but they can effectively do it by providing the better pricing there somewhat in exchange for more on their terms. After all, as I understand Fair Trade law wrt non profit higher education , a company is not bound to treat us the same as they do commercial or state agency customers, thank heavens, but we all know that differences do come into play within our segment (volume, prestige of customer, other work with the customer such as testing etc, on and on).

 

I too, at the scale of UT, assume that push comes to shove, I will get modified terms if it is a big enough deal. I realize this does cost the vendor money (and hence, us more money). But for so long vendor contracts have been ridiculously one sided to start out with.  I don’t know what the balance is. It is costlier to have to negotiate but when faced with ridiculously one sided… sigh, none of us would be literate if it had been this hard to buy a book.

 

I have asked I2 to hold two calls for us to discuss these issues…

 

____________________________________________________

Margaret H. Knox                  mknox@utsystem.edu

 

Chief Information Officer (CIO)     (512)322-3774   

The University of Texas System

CTJ 2.218 78701

      

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Malm, Loren
Sent: Thursday, October 31, 2013 9:58 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

For related but somewhat different reasons, I am concerned about the trend towards “pre-negotiated agreements” through groups like the Internt2 NET+ where we unfortunately run into this very quickly:

 

Please note that given the very extensive contract negotiations over the past six months, we will not be able to make any changes in the attached contract except to add state-mandated requirements that may affect public institutions in certain states (there is a specific appendix for this). The university counsels from our early adopter schools, as well as Internet2’s counsel, will be available to talk with your counsel, if needed, to explain how we arrived at this custom agreement specifically created for higher education institutions.

 

Frankly I don’t really need to hear about how Box and Internet2 decided what terms were important to me and what I could live with. I am interested in what the agreement says, which under NET+ has become a “take-it-or-leave-it” adhesion contract. If I were sitting down to compare RFP responses today and had to choose between an Internet2 contract and one that I freely negotiated with the vendor, I’ll take the latter option in almost every case. I know what I need to see in the contracts I work on and I’m usually successful at getting it or something very close to it.

 

Vendors on the other hand *love* the direction of consortium agreements, and my worry is that over time more vendors may seek to limit the terms of their deals to those made via a consortium. I believe if the NET+ model begins to take larger hold, the power of any institution to negotiate favorable terms may diminish significantly. Instead of a consortium achieving better terms through combined bargaining power, we seem to be headed towards a situation where vendors are able to use a mediocre agreement as a tool to prevent institutions from getting better terms through fair competition.

 

Contrast the above statement from Internet2 with one of the terms from the Box Internet2 “Enterprise Customer Agreement” (ECA) to which you will agree if you sign up:

 

10.10 No Drafting Presumption. The Parties agree that the terms of this Agreement were mutually negotiated and shall not be construed either in favor or against either of them or Box by virtue of the extent of the Parties’ or Box’s involvement in preparing or reviewing this Agreement.

 

So the idea is even though Box/Internet2 wrote the entire agreement and won’t change anything in the contract save for certain state mandated clauses, they will require a provision (which again, they will not change) which says the terms of the contract were freely negotiated by the parties signing it (this means you) with the expectation a reviewing court will treat the language of the contract just as if all the terms were mutually drafted with equal bargaining power by all the signing parties, even though the only power you actually have is to fill in the blanks and sign your name.

 

This isn’t my kind of negotiation.

 

Regarding the bid issue, I can’t envision any situation where a vendor’s stated approach to “service validation” would cause a reasonable Purchasing/Finance office to forget about bid requirements. It might be helpful if NET+ would respond to RFPs so their services could be evaluated openly. If the NET+ process and resulting product are really fantastic, then they should be the clear and obvious choice amongst a field of fairly and equally considered competitors.

 

Loren

 

_____________________________________________________

Loren Malm, J.D., CISSP

AVP, Information Technology

Ball State University, Muncie, IN 47306-0015

phone: 765-285-2001 fax: 765-285-4260 email: lmalm@bsu.edu

 

 

 

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Ruth Ginzberg
Sent: Thursday, October 31, 2013 7:31 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

ARGH. This is the same misunderstanding NET+ exhibited during its recent videoconference with CIC (Big 10) purchasers.

NOBODY WANTS NET+ TO RESPOND TO RFPs. (How much more clearly can that be said?)  

Or I don't know, maybe some institutions might want them to respond to RFPs, but that is not the issue at hand right now.

The issue is: NET+ does not competitively bid the contracts that NET+ enters into with entities like Box, HP, etc., etc. (which NET+ then offers to Higher Ed institutions). I don't care how many lawyers and CIOs reviewed them.  From a procurement standpoint, the contracts they are trying to sell us are no different from agreements entered into with a back slap and a handshake in a secret smoke-filled room because THEY WERE NOT COMPETITIVELY BID.

That is what makes it difficult for those of us at public institutions in states with LAWS that require transparency and competitive bidding to use those contracts.

Yes, there were some people at the University of Wisconsin-Madison who spent NINE MONTHS getting a state government waiver from the competitive bidding requirement in order to purchase Box.com from NET+. Rest assured that we do not have enough excess personnel capacity system wide to devote that amount of time to obtaining a waiver each time that any one of our 26 campuses wishes to purchase anything from NET+

This is NOT just a "Wisconsin" issue (or not just "my personal" issue) -- trust me.

NET+ does not conduct its business in ways that conform with the State of Wisconsin's (and, according to my understanding, other States' as well) procurement requirements. There are ways that we can request waivers for individual purchases on individual occasions. Those are tedious, difficult, and time consuming processes for purchasing personnel -- a fact which perhaps some who see our only role as that of "getting in the way of progress" or "cutting Purchase Orders" may not particularly appreciate.

Not to mention that those waiver processes require that purchasing personnel repeatedly carry forth arguments which we ourselves may have trouble believing (such as an argument that Box.com via NET+ is a sole source). Some of us may have trouble believing that there are no possible other providers of cloud storage, and therefore competition does not exist in that market space.

If NET+ would simply COMPETE the contracts that it awards rather than selecting its vendors via some mysterious process of handshakes in smoke filled rooms, it would be a lot easier for public institutions to collaborate with them in the ways that they envision.

Ruth Ginzberg, CISSP, CTPS

Sr. I.T. Procurement Specialist
University of Wisconsin System

rginzberg@uwsa.edu
608-890-3961

 

 

From: "Marg Knox" <mknox@AUSTIN.UTEXAS.EDU>
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Sent: Wednesday, October 30, 2013 8:42:07 PM
Subject: [LICENSING] Fwd: [LICENSING] An example Net+ contract


FYI, from Andrew at I2... Confirms what we heard.

 

Andrew is willing to set up a time to discuss amd get feedback, if there is interest. 

 

I learned that I2 will not respond to an RFP...

 

 

 

 

 

 

 

 

 

Marg, 

 

Apologies for the delay replying. I’ve been traveling back from meetings in Beijing so am a bit behind on my emails. 

 

We have found that once procurement and purchasing folks learn more about the NET+ approach that we undertake during the service validation the concerns about competitive bidding tend to fade. It is important to note that Internet2 does not respond to RFPs since all of the information about NET+ services are published, public, and consistent (each institution will get the same price and terms). 

 

In particular we have had some very positive feedback from many procurement officers, including some from public institutions and from within the University of Wisconsin system. We are working on some upcoming webinars and discussions specifically focused on purchasing / procurement as part of the Cloud Proud. We will definitely let you and the licensing group know when the next one is scheduled.

 

Also copying in Khalil and Jerry for their thoughts. We’d be glad to discuss further and perhaps set up a presentation for the CIC group and/or others

 

-Andrew

 

 

 

 


Begin forwarded message:

From: "Knox, Marg" <mknox@AUSTIN.UTEXAS.EDU>
Date: October 29, 2013 4:55:33 PM CDT
To: <LICENSING@LISTSERV.EDUCAUSE.EDU>
Subject: Re: [LICENSING] An example Net+ contract
Reply-To: The EDUCAUSE Software Licensing Issues Constituent Group Listserv <LICENSING@LISTSERV.EDUCAUSE.EDU>

Thanks Ruth, I was thinking about just using the clauses as an example template discussion but you bring up an interesting point. It does make it hard to fall under various states's group purchasing provisions. Let me see what I2 has to,say

Sent from my iPad

Margaret (Marg) H. Knox

The University of Texas System


No, the mention of UW-Madison in this document is for something different.



Ruth Ginzberg, CISSP, CTPS
Sr. I.T. Procurement Specialist
University of Wisconsin System

rginzberg@uwsa.edu
608-890-3961


From: "Marg Knox" <mknox@AUSTIN.UTEXAS.EDU>
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Sent: Thursday, October 31, 2013 12:21:22 PM
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

All

I just got this from I2, see attached.

 

Ruth, is this part of the 9 month effort at UW for buying Box that you mentioned? UW is mentioned.

 

I still wish they would do a competitive bid…

____________________________________________________

Margaret H. Knox                  mknox@utsystem.edu

 

Chief Information Officer (CIO)     (512)322-3774   

The University of Texas System

CTJ 2.218 78701

      

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Knox, Marg
Sent: Thursday, October 31, 2013 11:40 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

Loren and Ruth, I agree with many of your worries!

 

And I certainly agree we don’t want to force I2 to respond to RFPs (too expensive). However, I do believe they can do a competitive bidding process themselves without choking to death or mucking up their plan and that criteria could be included on best value including sponsorship and success at member campuses.

 

I don’t think companies can limit us to consortiums per se though due to Fair trade law (let me note I am not an attorney and Loren is!!) but they can effectively do it by providing the better pricing there somewhat in exchange for more on their terms. After all, as I understand Fair Trade law wrt non profit higher education , a company is not bound to treat us the same as they do commercial or state agency customers, thank heavens, but we all know that differences do come into play within our segment (volume, prestige of customer, other work with the customer such as testing etc, on and on).

 

I too, at the scale of UT, assume that push comes to shove, I will get modified terms if it is a big enough deal. I realize this does cost the vendor money (and hence, us more money). But for so long vendor contracts have been ridiculously one sided to start out with.  I don’t know what the balance is. It is costlier to have to negotiate but when faced with ridiculously one sided… sigh, none of us would be literate if it had been this hard to buy a book.

 

I have asked I2 to hold two calls for us to discuss these issues…

 

____________________________________________________

Margaret H. Knox                  mknox@utsystem.edu

 

Chief Information Officer (CIO)     (512)322-3774   

The University of Texas System

CTJ 2.218 78701

      

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Malm, Loren
Sent: Thursday, October 31, 2013 9:58 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

For related but somewhat different reasons, I am concerned about the trend towards “pre-negotiated agreements” through groups like the Internt2 NET+ where we unfortunately run into this very quickly:

 

Please note that given the very extensive contract negotiations over the past six months, we will not be able to make any changes in the attached contract except to add state-mandated requirements that may affect public institutions in certain states (there is a specific appendix for this). The university counsels from our early adopter schools, as well as Internet2’s counsel, will be available to talk with your counsel, if needed, to explain how we arrived at this custom agreement specifically created for higher education institutions.

 

Frankly I don’t really need to hear about how Box and Internet2 decided what terms were important to me and what I could live with. I am interested in what the agreement says, which under NET+ has become a “take-it-or-leave-it” adhesion contract. If I were sitting down to compare RFP responses today and had to choose between an Internet2 contract and one that I freely negotiated with the vendor, I’ll take the latter option in almost every case. I know what I need to see in the contracts I work on and I’m usually successful at getting it or something very close to it.

 

Vendors on the other hand *love* the direction of consortium agreements, and my worry is that over time more vendors may seek to limit the terms of their deals to those made via a consortium. I believe if the NET+ model begins to take larger hold, the power of any institution to negotiate favorable terms may diminish significantly. Instead of a consortium achieving better terms through combined bargaining power, we seem to be headed towards a situation where vendors are able to use a mediocre agreement as a tool to prevent institutions from getting better terms through fair competition.

 

Contrast the above statement from Internet2 with one of the terms from the Box Internet2 “Enterprise Customer Agreement” (ECA) to which you will agree if you sign up:

 

10.10 No Drafting Presumption. The Parties agree that the terms of this Agreement were mutually negotiated and shall not be construed either in favor or against either of them or Box by virtue of the extent of the Parties’ or Box’s involvement in preparing or reviewing this Agreement.

 

So the idea is even though Box/Internet2 wrote the entire agreement and won’t change anything in the contract save for certain state mandated clauses, they will require a provision (which again, they will not change) which says the terms of the contract were freely negotiated by the parties signing it (this means you) with the expectation a reviewing court will treat the language of the contract just as if all the terms were mutually drafted with equal bargaining power by all the signing parties, even though the only power you actually have is to fill in the blanks and sign your name.

 

This isn’t my kind of negotiation.

 

Regarding the bid issue, I can’t envision any situation where a vendor’s stated approach to “service validation” would cause a reasonable Purchasing/Finance office to forget about bid requirements. It might be helpful if NET+ would respond to RFPs so their services could be evaluated openly. If the NET+ process and resulting product are really fantastic, then they should be the clear and obvious choice amongst a field of fairly and equally considered competitors.

 

Loren

 

_____________________________________________________

Loren Malm, J.D., CISSP

AVP, Information Technology

Ball State University, Muncie, IN 47306-0015

phone: 765-285-2001 fax: 765-285-4260 email: lmalm@bsu.edu

 

 

 

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Ruth Ginzberg
Sent: Thursday, October 31, 2013 7:31 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

ARGH. This is the same misunderstanding NET+ exhibited during its recent videoconference with CIC (Big 10) purchasers.

NOBODY WANTS NET+ TO RESPOND TO RFPs. (How much more clearly can that be said?)  

Or I don't know, maybe some institutions might want them to respond to RFPs, but that is not the issue at hand right now.

The issue is: NET+ does not competitively bid the contracts that NET+ enters into with entities like Box, HP, etc., etc. (which NET+ then offers to Higher Ed institutions). I don't care how many lawyers and CIOs reviewed them.  From a procurement standpoint, the contracts they are trying to sell us are no different from agreements entered into with a back slap and a handshake in a secret smoke-filled room because THEY WERE NOT COMPETITIVELY BID.

That is what makes it difficult for those of us at public institutions in states with LAWS that require transparency and competitive bidding to use those contracts.

Yes, there were some people at the University of Wisconsin-Madison who spent NINE MONTHS getting a state government waiver from the competitive bidding requirement in order to purchase Box.com from NET+. Rest assured that we do not have enough excess personnel capacity system wide to devote that amount of time to obtaining a waiver each time that any one of our 26 campuses wishes to purchase anything from NET+

This is NOT just a "Wisconsin" issue (or not just "my personal" issue) -- trust me.

NET+ does not conduct its business in ways that conform with the State of Wisconsin's (and, according to my understanding, other States' as well) procurement requirements. There are ways that we can request waivers for individual purchases on individual occasions. Those are tedious, difficult, and time consuming processes for purchasing personnel -- a fact which perhaps some who see our only role as that of "getting in the way of progress" or "cutting Purchase Orders" may not particularly appreciate.

Not to mention that those waiver processes require that purchasing personnel repeatedly carry forth arguments which we ourselves may have trouble believing (such as an argument that Box.com via NET+ is a sole source). Some of us may have trouble believing that there are no possible other providers of cloud storage, and therefore competition does not exist in that market space.

If NET+ would simply COMPETE the contracts that it awards rather than selecting its vendors via some mysterious process of handshakes in smoke filled rooms, it would be a lot easier for public institutions to collaborate with them in the ways that they envision.

Ruth Ginzberg, CISSP, CTPS

Sr. I.T. Procurement Specialist
University of Wisconsin System

rginzberg@uwsa.edu
608-890-3961

 

 

From: "Marg Knox" <mknox@AUSTIN.UTEXAS.EDU>
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Sent: Wednesday, October 30, 2013 8:42:07 PM
Subject: [LICENSING] Fwd: [LICENSING] An example Net+ contract


FYI, from Andrew at I2... Confirms what we heard.

 

Andrew is willing to set up a time to discuss amd get feedback, if there is interest. 

 

I learned that I2 will not respond to an RFP...

 

 

 

 

 

 

 

 

 

Marg, 

 

Apologies for the delay replying. I’ve been traveling back from meetings in Beijing so am a bit behind on my emails. 

 

We have found that once procurement and purchasing folks learn more about the NET+ approach that we undertake during the service validation the concerns about competitive bidding tend to fade. It is important to note that Internet2 does not respond to RFPs since all of the information about NET+ services are published, public, and consistent (each institution will get the same price and terms). 

 

In particular we have had some very positive feedback from many procurement officers, including some from public institutions and from within the University of Wisconsin system. We are working on some upcoming webinars and discussions specifically focused on purchasing / procurement as part of the Cloud Proud. We will definitely let you and the licensing group know when the next one is scheduled.

 

Also copying in Khalil and Jerry for their thoughts. We’d be glad to discuss further and perhaps set up a presentation for the CIC group and/or others

 

-Andrew

 

 

 

 


Begin forwarded message:

From: "Knox, Marg" <mknox@AUSTIN.UTEXAS.EDU>
Date: October 29, 2013 4:55:33 PM CDT
To: <LICENSING@LISTSERV.EDUCAUSE.EDU>
Subject: Re: [LICENSING] An example Net+ contract
Reply-To: The EDUCAUSE Software Licensing Issues Constituent Group Listserv <LICENSING@LISTSERV.EDUCAUSE.EDU>

Thanks Ruth, I was thinking about just using the clauses as an example template discussion but you bring up an interesting point. It does make it hard to fall under various states's group purchasing provisions. Let me see what I2 has to,say

Sent from my iPad

Margaret (Marg) H. Knox

The University of Texas System


Thanks Ruth!

 

____________________________________________________

Margaret H. Knox                  mknox@utsystem.edu

 

Chief Information Officer (CIO)     (512)322-3774   

The University of Texas System

CTJ 2.218 78701

      

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Ruth Ginzberg
Sent: Thursday, October 31, 2013 12:29 PM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

No, the mention of UW-Madison in this document is for something different.


Ruth Ginzberg, CISSP, CTPS

Sr. I.T. Procurement Specialist
University of Wisconsin System

rginzberg@uwsa.edu
608-890-3961

 

 

From: "Marg Knox" <mknox@AUSTIN.UTEXAS.EDU>
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Sent: Thursday, October 31, 2013 12:21:22 PM
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract


All

I just got this from I2, see attached.

 

Ruth, is this part of the 9 month effort at UW for buying Box that you mentioned? UW is mentioned.

 

I still wish they would do a competitive bid…

____________________________________________________

Margaret H. Knox                  mknox@utsystem.edu

 

Chief Information Officer (CIO)     (512)322-3774   

The University of Texas System

CTJ 2.218 78701

      

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Knox, Marg
Sent: Thursday, October 31, 2013 11:40 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

Loren and Ruth, I agree with many of your worries!

 

And I certainly agree we don’t want to force I2 to respond to RFPs (too expensive). However, I do believe they can do a competitive bidding process themselves without choking to death or mucking up their plan and that criteria could be included on best value including sponsorship and success at member campuses.

 

I don’t think companies can limit us to consortiums per se though due to Fair trade law (let me note I am not an attorney and Loren is!!) but they can effectively do it by providing the better pricing there somewhat in exchange for more on their terms. After all, as I understand Fair Trade law wrt non profit higher education , a company is not bound to treat us the same as they do commercial or state agency customers, thank heavens, but we all know that differences do come into play within our segment (volume, prestige of customer, other work with the customer such as testing etc, on and on).

 

I too, at the scale of UT, assume that push comes to shove, I will get modified terms if it is a big enough deal. I realize this does cost the vendor money (and hence, us more money). But for so long vendor contracts have been ridiculously one sided to start out with.  I don’t know what the balance is. It is costlier to have to negotiate but when faced with ridiculously one sided… sigh, none of us would be literate if it had been this hard to buy a book.

 

I have asked I2 to hold two calls for us to discuss these issues…

 

____________________________________________________

Margaret H. Knox                  mknox@utsystem.edu

 

Chief Information Officer (CIO)     (512)322-3774   

The University of Texas System

CTJ 2.218 78701

      

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Malm, Loren
Sent: Thursday, October 31, 2013 9:58 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

For related but somewhat different reasons, I am concerned about the trend towards “pre-negotiated agreements” through groups like the Internt2 NET+ where we unfortunately run into this very quickly:

 

Please note that given the very extensive contract negotiations over the past six months, we will not be able to make any changes in the attached contract except to add state-mandated requirements that may affect public institutions in certain states (there is a specific appendix for this). The university counsels from our early adopter schools, as well as Internet2’s counsel, will be available to talk with your counsel, if needed, to explain how we arrived at this custom agreement specifically created for higher education institutions.

 

Frankly I don’t really need to hear about how Box and Internet2 decided what terms were important to me and what I could live with. I am interested in what the agreement says, which under NET+ has become a “take-it-or-leave-it” adhesion contract. If I were sitting down to compare RFP responses today and had to choose between an Internet2 contract and one that I freely negotiated with the vendor, I’ll take the latter option in almost every case. I know what I need to see in the contracts I work on and I’m usually successful at getting it or something very close to it.

 

Vendors on the other hand *love* the direction of consortium agreements, and my worry is that over time more vendors may seek to limit the terms of their deals to those made via a consortium. I believe if the NET+ model begins to take larger hold, the power of any institution to negotiate favorable terms may diminish significantly. Instead of a consortium achieving better terms through combined bargaining power, we seem to be headed towards a situation where vendors are able to use a mediocre agreement as a tool to prevent institutions from getting better terms through fair competition.

 

Contrast the above statement from Internet2 with one of the terms from the Box Internet2 “Enterprise Customer Agreement” (ECA) to which you will agree if you sign up:

 

10.10 No Drafting Presumption. The Parties agree that the terms of this Agreement were mutually negotiated and shall not be construed either in favor or against either of them or Box by virtue of the extent of the Parties’ or Box’s involvement in preparing or reviewing this Agreement.

 

So the idea is even though Box/Internet2 wrote the entire agreement and won’t change anything in the contract save for certain state mandated clauses, they will require a provision (which again, they will not change) which says the terms of the contract were freely negotiated by the parties signing it (this means you) with the expectation a reviewing court will treat the language of the contract just as if all the terms were mutually drafted with equal bargaining power by all the signing parties, even though the only power you actually have is to fill in the blanks and sign your name.

 

This isn’t my kind of negotiation.

 

Regarding the bid issue, I can’t envision any situation where a vendor’s stated approach to “service validation” would cause a reasonable Purchasing/Finance office to forget about bid requirements. It might be helpful if NET+ would respond to RFPs so their services could be evaluated openly. If the NET+ process and resulting product are really fantastic, then they should be the clear and obvious choice amongst a field of fairly and equally considered competitors.

 

Loren

 

_____________________________________________________

Loren Malm, J.D., CISSP

AVP, Information Technology

Ball State University, Muncie, IN 47306-0015

phone: 765-285-2001 fax: 765-285-4260 email: lmalm@bsu.edu

 

 

 

 

From: The EDUCAUSE Software Licensing Issues Constituent Group Listserv [mailto:LICENSING@LISTSERV.EDUCAUSE.EDU] On Behalf Of Ruth Ginzberg
Sent: Thursday, October 31, 2013 7:31 AM
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Subject: Re: [LICENSING] Fwd: [LICENSING] An example Net+ contract

 

ARGH. This is the same misunderstanding NET+ exhibited during its recent videoconference with CIC (Big 10) purchasers.

NOBODY WANTS NET+ TO RESPOND TO RFPs. (How much more clearly can that be said?)  

Or I don't know, maybe some institutions might want them to respond to RFPs, but that is not the issue at hand right now.

The issue is: NET+ does not competitively bid the contracts that NET+ enters into with entities like Box, HP, etc., etc. (which NET+ then offers to Higher Ed institutions). I don't care how many lawyers and CIOs reviewed them.  From a procurement standpoint, the contracts they are trying to sell us are no different from agreements entered into with a back slap and a handshake in a secret smoke-filled room because THEY WERE NOT COMPETITIVELY BID.

That is what makes it difficult for those of us at public institutions in states with LAWS that require transparency and competitive bidding to use those contracts.

Yes, there were some people at the University of Wisconsin-Madison who spent NINE MONTHS getting a state government waiver from the competitive bidding requirement in order to purchase Box.com from NET+. Rest assured that we do not have enough excess personnel capacity system wide to devote that amount of time to obtaining a waiver each time that any one of our 26 campuses wishes to purchase anything from NET+

This is NOT just a "Wisconsin" issue (or not just "my personal" issue) -- trust me.

NET+ does not conduct its business in ways that conform with the State of Wisconsin's (and, according to my understanding, other States' as well) procurement requirements. There are ways that we can request waivers for individual purchases on individual occasions. Those are tedious, difficult, and time consuming processes for purchasing personnel -- a fact which perhaps some who see our only role as that of "getting in the way of progress" or "cutting Purchase Orders" may not particularly appreciate.

Not to mention that those waiver processes require that purchasing personnel repeatedly carry forth arguments which we ourselves may have trouble believing (such as an argument that Box.com via NET+ is a sole source). Some of us may have trouble believing that there are no possible other providers of cloud storage, and therefore competition does not exist in that market space.

If NET+ would simply COMPETE the contracts that it awards rather than selecting its vendors via some mysterious process of handshakes in smoke filled rooms, it would be a lot easier for public institutions to collaborate with them in the ways that they envision.

Ruth Ginzberg, CISSP, CTPS

Sr. I.T. Procurement Specialist
University of Wisconsin System

rginzberg@uwsa.edu
608-890-3961

 

 

From: "Marg Knox" <mknox@AUSTIN.UTEXAS.EDU>
To: LICENSING@LISTSERV.EDUCAUSE.EDU
Sent: Wednesday, October 30, 2013 8:42:07 PM
Subject: [LICENSING] Fwd: [LICENSING] An example Net+ contract


FYI, from Andrew at I2... Confirms what we heard.

 

Andrew is willing to set up a time to discuss amd get feedback, if there is interest. 

 

I learned that I2 will not respond to an RFP...

 

 

 

 

 

 

 

 

 

Marg, 

 

Apologies for the delay replying. I’ve been traveling back from meetings in Beijing so am a bit behind on my emails. 

 

We have found that once procurement and purchasing folks learn more about the NET+ approach that we undertake during the service validation the concerns about competitive bidding tend to fade. It is important to note that Internet2 does not respond to RFPs since all of the information about NET+ services are published, public, and consistent (each institution will get the same price and terms). 

 

In particular we have had some very positive feedback from many procurement officers, including some from public institutions and from within the University of Wisconsin system. We are working on some upcoming webinars and discussions specifically focused on purchasing / procurement as part of the Cloud Proud. We will definitely let you and the licensing group know when the next one is scheduled.

 

Also copying in Khalil and Jerry for their thoughts. We’d be glad to discuss further and perhaps set up a presentation for the CIC group and/or others

 

-Andrew

 

 

 

 


Begin forwarded message:

From: "Knox, Marg" <mknox@AUSTIN.UTEXAS.EDU>
Date: October 29, 2013 4:55:33 PM CDT
To: <LICENSING@LISTSERV.EDUCAUSE.EDU>
Subject: Re: [LICENSING] An example Net+ contract
Reply-To: The EDUCAUSE Software Licensing Issues Constituent Group Listserv <LICENSING@LISTSERV.EDUCAUSE.EDU>

Thanks Ruth, I was thinking about just using the clauses as an example template discussion but you bring up an interesting point. It does make it hard to fall under various states's group purchasing provisions. Let me see what I2 has to,say

Sent from my iPad

Margaret (Marg) H. Knox

The University of Texas System


Colleagues,

 

This is an important discussion, and since the recent CIC Procurement Directors conversation was referenced, it seems prudent to add more information as we were both participants.

 

There is no misunderstanding on the part of Net+ or those institutions who chose to opt in to this approach to achieving institutional goals.  Institutions and firms who do not favor this approach or who have state laws that favor other approaches or preclude them from participating can and should avail themselves of other means.   Participation is voluntary by any institution in these agreements.

 

Traditional procurement practices provide great benefits for some types of purchases, but in and of themselves, for most institutions they are tools to achieve an institutional goal (states/institutions do vary).  Likewise, replicating those procurement processes and RFPs to aggregated buying is already an option among many collections of institutions via state or regional consortia.  In economics terms, these are all forms of economic markets that premise the merits of this approach on (1) near-perfect markets with (2) lots of buyers, lots of sellers, and (3) near-perfect information, (4) low switching costs, and (5) timing.

 

The historical success of those approaches and their possible efficacy for cloud services does not preclude many institutions from also trying other, non-exclusive approaches.   Much hard work has gone into Net+ contracts by many sponsoring universities, extended evaluations, long negotiations by counsel at multiple universities and at Net+, and many institutions have benefited.  The characterization of this work by many university and I2 colleagues as something less than professional is unhelpful and inappropriate.

 

As was clearly stated at the CIC gathering, Net+ is not seeking to produce a single source contract in a category to the exclusion of others -- as university RFP processes ultimately do when they yield a single winner.  In fact, Net+ enables multiple providers in a category, but if, and only if, multiple college/universities (who are the collective owners of Internet2) agree to sponsor a vendor.  The vendor (which may also be a service-providing institutions or consortium of institutions) must pass a very substantial set of validation processes by the sponsoring universities and Net+.  This includes compelling the use of InCommon in services for federated identity, and history proves that individual institutions have only had varied success in achieving that and other highly desired university requirements that may be technical change to a product/service.

 

Markets are not the only form of organizing highly effective, adjacent steps in a supply chain.  Two Nobel Prizes in Economics have been awarded for assessing this area of transaction cost economics, and the most effective role of organizing by what economists call markets or organizing by hierarchies.  Likewise, the initial Electronic Markets Hypothesis was later refined to the Move to the Middle Hypothesis that largely affirmed the very approach that Net+ and many firms are taking.  In an era of unprecedented change to the finance of Higher Education, we ignore these economic insights at our peril.

 

As institutions of higher learning are challenged by these difficult economic times, procurement professionals are clearly looking at those strategies that include strategic sourcing, supplier rationalization and supplier management.  It is possible that the Net+ service offerings can help achieve these goals and support these activities rather than be detrimental to that shift. 

 

It is also fair to observe that the patterns of historical RFP processes over the last 10-15 years have not always yielded outcomes that served institutional interests over the long run. In category after category of software, we see naturally efficient supply-side market aggregation selling to highly fragmented buy-side universities with outcomes that are both theoretically predictable and self-evident all around us.

 

To the second point that some institutions may wish to negotiate their own contract terms and conditions, the Net+ approach fully allows them to do so.  History also shows individual negotiation advantages are far rarer given much hidden (NDA) information than many perceive.   The present approach of rabid heterogeneity in contracting terms only increases costs to both seller and buyer relative to what can be gained in aggregated agreements.  Again, local institutions are free to go and negotiate any agreement of their own choosing directly with any provider. 

 

I2/Net+ service contributions offered as a subset of Higher Education owned entities and activities are infants in the room of elephants relative to many of the corporate based software companies and it behooves us as a community to work together to provide opportunities for success for those institutions who choose to take advantage of this type of collaboration.  While these contracts may not be part of a formal or traditional RFP competitive bid, there is a market review and justification component developed to support contract negotiation.  The more prudent path may be to look at is how to disperse this information more broadly and cohesively so a larger portion of the community who wishes to and can participate has access to the information they may need. 

 

Indiana University is a beneficiary of Net+ contracts in some categories. In others we negotiate what may be favorable contracts due to IU's size, and in other categories we just do things ourselves.  There are merits to each of these paths and efforts to impugn the Net+ path are both unnecessary and unhelpful.  

 

Brad Wheeler, CIO

Jill Schunk, AVP University Procurement

Indiana University

 

 

 

How should education consume cloud?

 

I spent most of the last 10 years as CIO at UC Berkeley working to improve technology for the campus and community there,  and to do so while keeping as much of the resources in the labs, classrooms, and with the students and the faculty as possible.  Yet even with Berkeley’s position, size and buying power, we were not effectively addressing the fast moving changes of how to adopt cloud services.  Last year I moved to Internet2 expressly to focus on the opportunity and challenges of how cloud computing adoption could benefit higher ed .  Watching this thread on licensing, procurement, and the Internet2’s NET+ initiative reminded me exactly why the community’s work on this is so important. 

 

At Internet2, we respect the fact that each campus must comply with its own policies and applicable state laws.  As a result, the NET+ model may not be right for everyone.  Campus participation is purely voluntary.  Those campuses that do participate, however, find enormous value in terms of accessing innovative cloud services, lower pricing, and legal protections that otherwise would be difficult or incredibly expensive to obtain. Let me provide a few points of clarification and context.  

 

-       No one campus  - no matter its size, history, or even football fame, has sufficient influence to shape commercial technology industries engagement with the higher education market.  We have a very challenging culture that makes us extremely expensive to sell to – yet we (with few exceptions) simply don’t have the resources either individually or collectively to afford to pay for the extremely high cost of sale to ourselves.

 

-       Now with cloud services delivering identical solutions at the flip of a virtual switch to a school of 1,000, 10,000, or even 100,000, a single school just isn’t scale anymore.   Now millions of subscribers using the same service is what the design point is for these multitenant systems.  If we are to influence commercial cloud industries, or in fact leverage our own technologies that can be built and delivered as cloud solutions, we really have to think at scale.  Scale is all of us,  not one of us.

 

-       Internet2 isn’t a vendor, supplier, or commercial entity. It was founded by higher education for higher education, is governed by countries largest research campuses with participation from regional networks supporting K-12, community colleges, and small schools, and has expanded its mission to include support far beyond the original 35 research campuses that founded it.  We collectively are Internet2.

 

-       Having five, ten or more campuses working together to design a service (not “buy one” ) is what the Internet2 NET+ program is all about.    The campuses collectively document requirements, work on security assessments, connectivity architectures, accessibility roadmaps, identity integration strategies, and design business models that will work for higher education. 

 

-       The NET+ services are non-exclusive and all materials are available to all participating institutions.   Campuses are welcome to “compete” services, both inside the catalog and outside.  If you issue an RFP for a service,  I would encourage you to think about how within your campus policies and state rules you can also consider NET+ services.  Keep in mind the NET+ version usually includes custom dimensions, in,architecture, delivery over the community R&E network, and in contract which are all signed off on by those institutions that helped create the solution specifically tailored for higher education.

 

-       Every NET+ service contract is written BY the universities, not the provider, Internet2 or some third party. They are OUR contracts.  They incorporate the best thinking of campus counsels from throughout the country and include legal protections that benefit higher education.    They also evolve. Every time on of the community reviews a NET+ contract and makes suggestions, those are included in list of modification for consideration in each new version.

 

-       Purchasing from state to state, district to district, even campus to campus, has always been complex process.  Its clear there is no single approach that can solve all of our problems work across industries but continuing the status quo of individually negotiating or trying to “buy in bulk” to get discounts is a thing of the past.

 

Still, these variations are expensive. For each minor adjustment, each change we make, each time a new review is undertaken of a contract in progress, costs are incurred which are borne by both our campuses and our providers.   In days past when agreement negotiations were part of large capital purchases, the time and effort of customizing a solution and an agreement specifically for each institution, to accommodate the local and state laws, unique campus policies, and system requirements were both necessary and important.

 

The shift to a “services world” is changing our institutions technology acquisition. It seems prudent that we all work together to develop improved ways to make services available faster and easier.   The collective benefit from higher quality tailored services and higher education designed agreements is substantial. We have seen it work.  $10’s of millions of dollars have been saved in less then two years since the program was launched.  Just as the original Internet2 Network achieved things collectively for the research universities that started it, the Internet2 NET+ program offers the potential to do the same for customized cloud services. k’t will take time as we collectively work through laws, policies, and practices (most of which were written before the internet, cloud services, and micro  transactions even existed.  Its a work in progress but one we need to continue to speed up to keep pace with the changing landscape.


I look forward to the day when our campuses can use sourced services as easily as downloading an app or launching a computing enviroment from a higher ed app store. To get there CIOs, Procurement leads, legal – all of us need to work together to shape these changes.


Thanks

Shel Waggener

Internet2

http://internet2.edu


Thank you for your response, Brad.

I do think this is an important discussion and would like it to continue, hopefully with others than me weighing in.  I am fairly certain that I do not speak only for myself or my own State.

You say,

Institutions and firms who do not favor this approach or who have state laws that favor other approaches or preclude them from participating can and should avail themselves of other means.   Participation is voluntary by any institution in these agreements.

So noted ... but I think this is a very hard line for you to take, which may come back to bite you.  I don't know the answer to this;  it is an honest question:   Do you know, have you done the research to find out, how many states will be precluded from using your contracts due to state laws that require competitive solicitations?  It could be a lot, which - it seems to me - would be detrimental to the kind of collaborative framework you are attempting to build.  I would be interested in the answer to that, if anyone has it.

Economic arguments notwithstanding, the question becomes: Assuming that we want to come to some agreement, which is it easier for us to try to change?  State statutes?  Or NET+'s contracting practices?  Perhaps the answer will also vary from state to state. 

You are not the first person who has suggested that our State procurement laws may be old fashioned or out of date.  Maybe they are or maybe they aren't ... but (economic arguments about market forces notwithstanding) the fact is that I do not have the power to change my state's laws regarding procurement.  Only the State Legislature can do that.  Until then, I am obligated to follow them, unless I have a heretofore unrealized desire to spend some part of my life in an 8x8 cell wearing a striped jumpsuit and making license plates.  I'm pretty sure I don't want to do that. No, actually, I'm positive I don't want to do that.  It was bad enough when I disagreed with my state laws about the speed limit on a particular highway and discovered that no matter how good my argument that it ought to be something other than it is, the judge still said, "Guilty," and made me pay the fine.

It is not that we do not want to use your contracts.  There are people in Wisconsin who very much want to use your contracts.

From what I know of other state's laws about public procurement, I am pretty sure that Wisconsin is not the only state put in this difficult position by your hard line on this issue.

I believe it is completely possible to conduct a competitive procurement that yields the quality and variety of goods and services and products that you wish to feature.  I'd be glad to assist you in developing a competitive RFP process to do that if you want.... and I am guessing that there are other procurement experts from other states who would be equally willing to help with that project.

Just as it is fair for you to call "foul" if you perceive me to be suggesting that you are less than professional in your contracting process, and I do apologize for that .... I also wish to cry a mild "foul" if you are assuming a caricature of a robust competitive process rather than a real one developed in conjunction with people who have expertise in that area.  You have included CIOs and attorneys in the development of your contracting process -- why are you excluding procurement experts?

I believe there are ways of resolving this issue more productively than just saying, "This is what we're doing. Take it or leave it."

Regards,


Ruth Ginzberg, CISSP, CTPS
Sr. I.T. Procurement Specialist
University of Wisconsin System

rginzberg@uwsa.edu
608-890-3961


Brad, Shelton, Ruth, et al:

 

1.       Is it truly the case that Net+ will not respond to an RFP at all?  I have difficulty understanding why Net+ would be unwilling to respond to an RFP, given that their offerings are well-documented.  At a minimum, I would expect that Net+ would respond to RFP’s with a standard letter and associated documentation that describes their service model and costs.  Of course, schools would be justified in some cases (depending on the wording of the RFP) to then choose to exclude Net+ because Net+ did not respond individually to each question in the RFP, and it would probably be wise for Net+ to make a minimal effort to respond to the RFP template.

 

2.       I understand that Net+ is willing to respond to requests for information.  How is an RFP different than a formal request for information in a specified form such as an RFP?

 

3.       Is this discussion instead around the unwillingness of Net+ to negotiate special “deals” for each customer?  If so, I see this as an entirely separate issue from willingness to respond to an RFP.  In some ways, a fixed pricing model that is the same for all customers is highly sophisticated.  For example, it is my understanding that Gartner follows a similar pricing approach for educational institutions and Gartner clearly has a very strong understanding of procurement processes and negotiations.  How would it be inconsistent with the business model of Net+ to respond to an RFP with a non-negotiable, fixed cost, standard service offering?

 

 

Aaron Leatherwood

Budget and Finance Director

Office of Information Technology

Ohio University

 

Aaron and all 
Internet2 NET+ services isn’t a supplier – is coordination and facilitation across universities that build these models and ultimately end up with all the components that make up the service offering.   Since we do that collectively and all materials are (including on going support, FAQ documentation, escalation etc) are all done collectively,  and available to all members under exactly the same conditions and terms,  RFP response could very well be just a letter from Internet2 asserting it exists and providing documentation. But based on many state laws, that puts Internet2 in a position to be the provider.  Its great we have procurement officers from many states working with us to tune the approach but thus far the response to RFP really doesn’t seem viable.

The “special deals” question is about flexibility to create something for a single campus.  Since the entire program is built around a special program for all of the research and education community and is designed by us, it is in fact our community that has been the one that collectively agreed to hold the line on adding costs back in by doing “special deals” which inevitably simply add costs not lower them from these models.     Since campuses design these (not Gartner or the provider) I don’t think the analogy is accurate but I get the point.    Still takes us back to question of how can campuses most effectively consume this model given the unique nature of this approach and the importance of being in compliance with the intent of the current set of policies and laws.

Shel


Shel and All,

Both sides have good intentions and the objections raised have validity too. 

Thinking 'outside the box' we should consider the option that the vendor- in this case Box.net should take on the task of responding to the RFP and offer two contracts - one their standard template contract and second the I2-Net + template . Let each Institute then decide how they want to deal with their unique situation and state laws and spend the time and resources to add an amendment to it. Most large  vendors have in place a Government and Academic sector setup and resources, to deal with the processes. 

My 2 cents..ultimately the vendor is getting more business and has incentive to promote the I2 Net+ contract offering, as they will be able to help keep costs down for all of us too. This model will evolve with time and input from this esteemed community.

Best regards,

Anna Chhabria
USC_ITS
Contracts and Compliance Manager
213-740-4140.
ansuyac@usc.edu


Message from lhalunko@vcu.edu

Jim,

There was a lot of talk about the Net2 contract today and legal issues, so I'm forwarding it to you.  Do you wish to receive more discussion information about this issue or should I stop sending it your way?

Lucy

Lucy Halunko
Training Coordinator
Technology Services
828.7713


Shel,

 

If we issue a purchase order and pay money to a company, that company is a supplier.  I understand that Internet2 is somewhat unique, but even so, Internet2 is a separate legal entity that is not part of the State of Ohio.  As such, I don’t think Internet2 would be treated differently than any other supplier under Ohio law.   While I do appreciate Internet2’s involvement and partnership with member institutions, I don’t see how this is functionally different from the relationships with our other suppliers that actively partner with us to deliver solutions.  The fact that Interner2 universities are “members” is probably not enough to merit separate treatment unless Internet2 is a purchasing cooperative (such as WSCA) which the State of Ohio recognizes as undertaking competitive procurements on behalf of its members.  If membership in a functional organization that worked cooperatively to deliver solutions was enough to receive exemption from statutory purchasing suppliers, I have no doubt that many of the major suppliers with which we do business would issue us memberships entitling us to pay them money to partner with them to deliver solutions.

I could certainly imagine a scenario where a reseller responded to an RFP and required a contract with their supplier as part of the RFP response. If Box is a reseller or value-added provider of Internet2, then I can imagine something along the lines that Anna has proposed where the purchase order and payments would be issued to the reseller (Box in this example).  If, however, Internet2 is expecting to receive the purchase order and directly receive payments under the contract, then Internet2 is the supplier.   Either way, it is reasonable to expect that the supplier (whoever that is) would respond to the RFP.

 

All of this should be fairly straightforward and, I suspect, common to the purchasing laws in many states.  If my understanding is not correct, I am hopeful to better understand the situation from you and others.  It is not my desire to debate the merits of the State of Ohio’s statutory requirements or even their applicability to the Internet2 service.  However, if Ohio University were to issue an RFP, I am hopeful that we would receive proposals from all suppliers that are capable of providing a competitive and functionally compelling service, including Box and/or Internet2.

 

Aaron Leatherwood

Budget and Finance Director

Office of Information Technology

Ohio University

 

 

Aaron,

I appreciate your points and questions, and most importantly the hope that some of the dialogue on this topic can help all of us gain a better understanding of what differences, if any, the rapid development of cloud services means for our institutions. This is a long post that may need a 3rd cup of coffee before proceeding. 

As we've written elsewhere (links below), the term "cloud" is more of a marketing term than a real technical definition.  At its core, however, we do see that it generally means off premises and highly aggregated/scaled.  As Internet2 continues its rollout of 100GigaBit networks and our institutions choose to connect to these larger "pipes," then we can reasonably foresee a greater shift to potential economic efficiencies of the cloud approach.

At question, then, is how will buy -- or to use Shel's word's "consume" -- cloud services?

I think there exists one proven, universally available, legally compliant, proven way to do so, and that remains to treat cloud procurement just like we did ERP procurement or server procurement of the last decade.  That will work, and for many institutions, it is and will be the path forward.  When IU bought a Dell Server or Ohio Bought a Dell Server we each spec'd it according to our wishes and it was physically delivered to our zip code.  Switching costs to HP Servers were understood, and ERP or other software often ran in our data centers and we could tailor it as we thought best.  It was a zipcode based world.

 The cloud makes services appear in our zipcode as well.  What is different, in my view, is that our ability to influence and shape them likely diminishes greatly as extreme aggregation vastly homogenizes service offerings by cloud providers.  Switching costs will likely rise even more so for some important categories of services than in the past.  By example, many institutions have struggled to get Google [fill in other vendor name here] to make some important changes that matter for campus legal compliance.  Google cares most and rightly about customers that are measured Billions not Millions.  The cost for new entrants and rivals is high and is compounded by a very expensive sales process to higher education (a process that is paid for in the prices we pay).

It is entirely fair when thinking about an unknown future to have varying views, and I wholly respect that others may see all of the above quite differently

What to do?

I think one of the very useful outcomes of this long dialogue has been to surface the existing legal, policy, and process challenges between a buying model that is well understood and has worked and an approach that may be quite different in an era of vast digital aggregation where zip code has little relevance for the fundamental economics of the product -- though that clearly does not negate the laws that apply in any institution's zip code.

Three more points to help share my understanding of why some use of Net+ is valuable and quite different than other approaches.  

  1. For IU, Internet2 is not a supplier.  I cannot speak to the technical nuance of that as a matter of law, but I can say that it makes a world of difference in how we interact and think about each other.  As a matter of law, and to my knowledge, faculty are legal employees of an institution.  It is fair to observe that in many matters how universities interact with faculty and what rights they have may be quite different than all classes of employees.  Thus, there may a very wide range of factors that matter in how an institution frames, acts, and thinks about engagements with our community-owned Network organization that are important yet still within the bounds of the letter of the law.  The driving imperative of organizations that we collectively own is different, and rightly so, than the imperative of for-profit vendors who have a responsibility to their owners as well.

  2. When two parties to any agreement/contract agree on everything that should happen over its term, then things are wonderful.  More likely and naturally, over time, conflicts arise.  They may be as simple as, "We need our ERP Vendor to supply a native Blackberry App" and a vendor who sees no reason to make that investment or "We need to share a few journal publications of our faculty with our regional campus," but we don't want to buy a full 12,000 seat ($75,000?) bundled license from Elsevier for every student on that campus."  At question, then, is how do conflicts get resolved?

    If even greater aggregation becomes the norm for many digital services, then the influence of any institution -- even a large one like IU -- becomes even more diluted over time.  Thus, we see two tools to resolve these conflicts: Influence and Authority.  A link below explains these in greater detail as a 2x2 Marketecture Matrix, but the use of Net+ services is one very important means for IU to adapt itself in whatever ways are feasible to take advantage of the possibilities of amplifying our influence with suppliers in ways that are not otherwise possible.

  3. I note "not otherwise possible" in #2 above.  As Shel frequently notes, Internet2 Net+ is not a buying club.  IU has invested time and energy to work with other universities and Net+ to assert "how we want to buy and what we want to buy" rather than responding to an offer of what someone wants to sell.  IU's long-standing and useful RFP process does describe what we want to buy, and final negotiations may sometime exert all the influence that a single institution can to shape a product.  Net+ scales that in ways that we could never before achieve to strongly and demonstrably influence in a non-exclusive way what a digital service actually is and in ways that higher ed needs.  While that may sound familiar, I believe the scale of what we are describing here is different than in the past as is the market power dominance of some category leaders.

As noted early on, there is a known, path that is working now and has worked for years for many institutions.  We are likely in a period where we will all be trying various forms of evolution to adapt to a changing world.  This is an important community conversation.

--Brad

Two EDUCAUSE Citations that may provide more background on the origins of Net+ and the role of aggregated Influence/Authority for higher ed:


(Resending with changed URL style at the bottom as the first style may have triggered some email filters.  Apologies.)

Aaron,

I appreciate your points and questions, and most importantly the hope that some of the dialogue on this topic can help all of us gain a better understanding of what differences, if any, the rapid development of cloud services means for our institutions. This is a long post that may need a 3rd cup of coffee before proceeding. 

As we've written elsewhere (links below), the term "cloud" is more of a marketing term than a real technical definition.  At its core, however, we do see that it generally means off premises and highly aggregated/scaled.  As Internet2 continues its rollout of 100GigaBit networks and our institutions choose to connect to these larger "pipes," then we can reasonably foresee a greater shift to potential economic efficiencies of the cloud approach.

At question, then, is how will buy -- or to use Shel's word's "consume" -- cloud services?

I think there exists one proven, universally available, legally compliant, proven way to do so, and that remains to treat cloud procurement just like we did ERP procurement or server procurement of the last decade.  That will work, and for many institutions, it is and will be the path forward.  When IU bought a Dell Server or Ohio Bought a Dell Server we each spec'd it according to our wishes and it was physically delivered to our zip code.  Switching costs to HP Servers were understood, and ERP or other software often ran in our data centers and we could tailor it as we thought best.  It was a zipcode based world.

 The cloud makes services appear in our zipcode as well.  What is different, in my view, is that our ability to influence and shape them likely diminishes greatly as extreme aggregation vastly homogenizes service offerings by cloud providers.  Switching costs will likely rise even more so for some important categories of services than in the past.  By example, many institutions have struggled to get Google [fill in other vendor name here] to make some important changes that matter for campus legal compliance.  Google cares most and rightly about customers that are measured Billions not Millions.  The cost for new entrants and rivals is high and is compounded by a very expensive sales process to higher education (a process that is paid for in the prices we pay).

It is entirely fair when thinking about an unknown future to have varying views, and I wholly respect that others may see all of the above quite differently

What to do?

I think one of the very useful outcomes of this long dialogue has been to surface the existing legal, policy, and process challenges between a buying model that is well understood and has worked and an approach that may be quite different in an era of vast digital aggregation where zip code has little relevance for the fundamental economics of the product -- though that clearly does not negate the laws that apply in any institution's zip code.

Three more points to help share my understanding of why some use of Net+ is valuable and quite different than other approaches.  

  1. For IU, Internet2 is not a supplier.  I cannot speak to the technical nuance of that as a matter of law, but I can say that it makes a world of difference in how we interact and think about each other.  As a matter of law, and to my knowledge, faculty are legal employees of an institution.  It is fair to observe that in many matters how universities interact with faculty and what rights they have may be quite different than all classes of employees.  Thus, there may a very wide range of factors that matter in how an institution frames, acts, and thinks about engagements with our community-owned Network organization that are important yet still within the bounds of the letter of the law.  The driving imperative of organizations that we collectively own is different, and rightly so, than the imperative of for-profit vendors who have a responsibility to their owners as well.

  2. When two parties to any agreement/contract agree on everything that should happen over its term, then things are wonderful.  More likely and naturally, over time, conflicts arise.  They may be as simple as, "We need our ERP Vendor to supply a native Blackberry App" and a vendor who sees no reason to make that investment or "We need to share a few journal publications of our faculty with our regional campus," but we don't want to buy a full 12,000 seat ($75,000?) bundled license from Elsevier for every student on that campus."  At question, then, is how do conflicts get resolved?

    If even greater aggregation becomes the norm for many digital services, then the influence of any institution -- even a large one like IU -- becomes even more diluted over time.  Thus, we see two tools to resolve these conflicts: Influence and Authority.  A link below explains these in greater detail as a 2x2 Marketecture Matrix, but the use of Net+ services is one very important means for IU to adapt itself in whatever ways are feasible to take advantage of the possibilities of amplifying our influence with suppliers in ways that are not otherwise possible.

  3. I note "not otherwise possible" in #2 above.  As Shel frequently notes, Internet2 Net+ is not a buying club.  IU has invested time and energy to work with other universities and Net+ to assert "how we want to buy and what we want to buy" rather than responding to an offer of what someone wants to sell.  IU's long-standing and useful RFP process does describe what we want to buy, and final negotiations may sometime exert all the influence that a single institution can to shape a product.  Net+ scales that in ways that we could never before achieve to strongly and demonstrably influence in a non-exclusive way what a digital service actually is and in ways that higher ed needs.  While that may sound familiar, I believe the scale of what we are describing here is different than in the past as is the market power dominance of some category leaders.

As noted early on, there is a known, path that is working now and has worked for years for many institutions.  We are likely in a period where we will all be trying various forms of evolution to adapt to a changing world.  This is an important community conversation.

--Brad

Two EDUCAUSE Citations that may provide more background on the origins of Net+ and the role of aggregated Influence/Authority for higher ed:


Brad and Shel,

 

In re-reading my initial posting on this topic and several of the responses that followed I believe I have stated my concerns poorly. Moreover it was not my intent to characterize the work at I2 or NET+ as unprofessional, and if my posting was taken as disparaging I sincerely apologize. My primary concern has been with vendors using consortium agreements as leverage against institutions which might have reason to contract outside the consortium; a frustrating situation I have encountered first-hand.

 

I appreciate your posts and I had not considered several of the perspectives each of you raised. I certainly agree our collective ability to influence multitenant cloud-based services (and hence the terms under which they are provided) is greater than any one of us could achieve as individual institutions.

 

If there is an opportunity for a somewhat smaller institution such as Ball State University to become involved in the development process, perhaps this is an opportunity to participate in a larger way which furthers our individual objectives as well as the common good. I would be interested in pursuing options for participation off-line with either or both of you if that is a possibility.

 

Thank you both,

 

Loren

 

_____________________________________________________

Loren Malm, J.D., CISSP

AVP, Information Technology

Ball State University, Muncie, IN 47306-0015

phone: 765-285-2001 fax: 765-285-4260 email: lmalm@bsu.edu

 

 

 

 

Thanks for the update Loren.

 In fact the regional networks in many states are planning on extending the NET+ agreements to all of their interested campuses  For all those campuses that historically haven’t had a direct need for the kind of research and education capacity and innovation platform that Internet2 has provided, but now with so many cloud services support the institutions, the interest in participating to use services is far broader.  Right now we have seven regional networks participating, including I-Light in Indiana, who are helping tune the program to accommodate each state issues and reach all the smaller local institutions who want to participate.  Additionally the individual service offerings, like NET+Box, are being modified based on input from schools in those regions to include service for much smaller tiers (for example we will have new small tiers like put to 1500, 2500, etc instead of the first tier being at 10,000).     

Lots more work to do but definitely progress! 

Shel


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