Commonweath of Kentucky Finance and Adminisration Cabinet OFFICE-OF GENERAL COUNSEL Holly M.Johuson Room 392, Capitol Annex Secretary “702 Capital Avene rake, KY 40601-3462 Brian C. Thomas (502) 564-6560 (General Counsel Fax (502) 564-9875, January 8, 2020 John $ Gillom illum and Gillum Atomeys LIT N Main Street, PO Box 1147 ‘Somerset, KY 42502 Re: Commonwealth of Kentucky Solicitation Next Generation Keatucky Information Highway (NG-KIH) RFP 758 1500000003, Closed September 16, 2014 USDA Rural Development Funds Certification Dear Me. Gillum: ‘Thank you for speaking with me regarding the Next Generation Kentucky Information Highway (CNG-KIH” a/v/a “KYWired”) project. As you know, the Commonwealth of Kentucky and the Center for Rural Development ("CRD") have partnered to build the middle-mile infrastructure necessary to bring the benefits and opportunities inherent in acess to high-speed internet to all citizens of Kentucky. {A portion of CRD's role in the KY Wired partnership is to secure USDA Rural Development funds (RD Funds") needed to complete the infrastructure. It is my understanding that one element necessary to secure the RD Funds i a requirement for CRD’s counsel to certify thatthe KY Wired “Project Contractor was properly procured in accordance with KRS" (*CRD Certification”). In February 2019, CRD sought and received permission from USDA to qualify its certification based ‘upon the same or similar assertions from the Commonwealth through the Finance and ‘Administration Cabinet (“FAC”), Although CRD began secking the FAC certification in carly 2019, and receive assurances that eertfication was forthcoming, CRD was unable to secure the FAC certification prior to the inauguration of Governor Andy Beshear. Nov, you have again requested thatthe FAC review this matter and, if appropriate, provide assurances to CRD, which support the subsequent CRD Certification to USDA. ‘As you are aware, pursuant to KRS Chapter 45A a Request for Proposals (*RFP") for the NG-KIH. initiative was initially issued by the FAC on behalf ofthe FAC and CRD on July 11, 2014. This REP process resulted in a Master Agreement and ultimately a Project Agreement for KY Wired executed in September 2015,‘This Project Agreement, entered on September 3, 2015 ("Project Agreement”), and the Amended and Resiated Project Agreement, entered on March 13, 2019 (“Amended Project Agreement’ represent the principal KY Wired projet contractor agreements, and thus are most relevant to the CRD Certification. Both of these agreements were entered between the Commonwealth of Kentucky (“Authority”) and the KentuckyWired Infrastructure Company, Incorporated (“Project Co"), As noted in CRD's request to the USDA to qualify its certification, CRD was nota party to either the September 3, 2015 or the March 13, 2019 agreements. Although the FAC was a party to both agreements, a combination of the passage ofa significant portion of time as well as substantial FAC staff turnover places the FAC in the same or similar position as the CRD. ‘Accordingly, the FAC and the CRD must rely upon the four corners of the documents to answer ‘any questions or, in this ease, find support for the CRD Certification. Specifically, Project ‘Agreement section 3.5, entitled Authorities Representations and Warranties, states in relevant part that, () the procurement pursuant to which Project Co was selected to enter into this Project ‘Agreement was conducted in accordance with the RFP and all applicable Laws, including KRS Chapter 45A of the Kentucky Model Procurement Code, Similarly, section 3.5 (e) ofthe Amended Project Agreement contains the same representation and warranty ‘The September 3, 2015 Project Agreement was executed by the FAC Secretary at the time, Lori H. Flanery. More importantly, the representations and warranties contained therein were made ‘contemporaneously with the KRS Chapter 45A procurement processes and negotiations that ‘eventually resulted in the procurement of the Project Contractor. Likewise, the Amended Project Agreement was executed on March 13, 2019 by FAC Secretary, William M, Landrum Il, ‘contemporancously with the negotiations regarding modifications to the Project Agreement ‘engaging the Project Contractor FFor the reasons set forth above, the CRD must look to and rely upon the representations and ‘warranties of the FAC Scerctaries made contemporaneously with the procurement processes, ‘negotiations and agreement entered at the time to support the CRD Certification. Based upon those agreements, the FAC at the time the procurement processes, negotiations and contracting, has represented and warrantied that, ‘The procurement pursuant to which Project Co was selected to enter into this Project Agreement was conducted in aceardance with the RFP and all applicable Laws, including KRS Chapter 454 of the Kentucky Model Procurement Code. Accordingly, the information set forth above provides CRD the information necessary to certify that the KY Wired “Project Contractor was properly procured in aecordance with KRS” and thus complete its obligations to secure the RD FundsPlease let_ me know if you have any questions or concems regarding the contents of this correspondence. 2 ‘Brian C. Thomas Exec. Director, Office of General Counsel Finance and Administration Cabinet Ce: Holly M, Johnson, Secretary Finance and Administration Cabinet