§2370.33. Failure to perform

            A. A grant recipient forfeits the amount of a grant received if the grant recipient fails to perform, in material respect, the obligations established in law or in the grant agreement. A grant agreement shall last, at a minimum, for the duration of broadband project construction and, or longer, in accordance with the grant agreement, but not to exceed five years after construction completion. A grant recipient that fails to provide the minimum advertised connection speed and cost at the advertised rate shall forfeit any grant funds, up to the entire amount received through the GUMBO 2.0 program. The office shall use its discretion to determine the amount forfeited. A grant recipient that forfeits amounts disbursed in accordance with this Subpart is liable for up to the amount disbursed plus interest. The number of subscribers that subscribe to broadband services offered by the broadband service provider in the project area shall not be a measure of performance under the grant agreement for the purposes of this Subsection.

            B. A grant recipient is not required to forfeit the amount of a grant received if the grant recipient fails to perform due to a natural disaster, an act of God, a force majeure, a catastrophe, a pandemic, the failure to obtain access to private or public property or any government permits under reasonable terms, or such other occurrence over which the grant recipient has no control.

            C. Except as provided for in Subsection B of this Section, if a grant recipient fails to perform and fails to return the full forfeited amount required pursuant to this Section, the ownership and use of the broadband infrastructure funded by the GUMBO 2.0 program shall revert to the division of administration.

            D. Notwithstanding the provisions of this Section to the contrary, if a grant recipient fails to complete a project in a material respect, the grant recipient, at the discretion of the office, may be required to reimburse the state the actual cost to finish the project. The actual cost to finish the project shall be determined by the office in consultation with the grant recipient. The office shall not require a grant recipient that it determines has made a good faith effort to complete a project to reimburse the state an amount greater than the remaining GUMBO 2.0 cost per broadband-serviceable location as set forth in the grant recipient's application.

            E.(1) Any GUMBO 2.0 subgrantee also subject to deployment obligations elsewhere in this state, including from programs such as the Rural Digital Opportunity Fund, the Enhanced Alternative Connect America Model, the Rural Development Broadband ReConnect Program, or any other similar program included in the BEAD deduplication process, shall make an enforceable commitment as part of its GUMBO 2.0 subgrant agreement not to default or otherwise fail to fulfill any such deployment obligation in this state. The penalty for breach of this commitment shall be, as reimbursement for funding that could have been awarded but for other federal program funding, payment to the state in the amount equal to the total investment cost of all defaulted locations, as measured by the Eligible Entity tool provided to the state by NTIA.

            (2)(a) For the purposes of Paragraph (1) of this Subsection, the office shall determine if a broadband provider has defaulted or otherwise failed to fulfill a deployment obligation.

            (b) The office shall not approve any default that covers more than five percent of the unserved or underserved locations subject to the deployment obligation.

            Acts 2023, No. 383, §1; Acts 2024, No. 632, §1.