Final written briefs submitted in FirstNet protest case, court to determine next step

Officials for the U.S. Department of Justice and AT&T today submitted the final scheduled written briefs in the Rivada Mercury lawsuit protesting its elimination from the FirstNet nationwide procurement in the U.S. Court of Federal Claims, which will decide whether further input is needed before making a decision in the case.

Judge Elaine Kaplan is expected to review all of the written briefs in the case before determining whether oral arguments or other additional input may be needed prior to rendering a decision in the case, according to multiple sources.

Rivada Mercury—a bidding team led by Rivada Networks—filed the lawsuit on Nov. 21, contending that its proposal to build and maintain FirstNet’s nationwide public-safety broadband network should not have been excluded from the “competitive range” stage of the procurement process. The “competitive range” is the final stage of the federal-procurement process, where only the “most highly rated” proposals are considered.

On Oct. 17, The contracting officer for the U.S. Department of the Interior—the entity that will execute the FirstNet contract—informed officials for both pdvWireless and Rivada Mercury that their bids were not being considered in the “competitive range” stage of the procurement. While pdvWireless acknowledged this in an SEC filing later that week, Rivada Mercury’s status was not known until early December, when a heavily redacted version of its Nov. 23 complaint was publicized.

AT&T’s bidding team is believed to be the only entity remaining in the “competitive range,” which is why the carrier giant was allowed to intervene in the case alongside the U.S. Department of Justice, which is representing FirstNet.

Rivada Mercury argued in its original complaint that the circumstances in the case deserve extra scrutiny from the court, because AT&T is the only bidder remaining in the “competitive range” of the FirstNet procurement. Rivada Mercury also argued its belief that it could address the evaluation team’s concerns in an oral discussion of its proposal—something that only would happen within the “competitive range” stage of the procurement.

Details of the Rivada Mercury complaint are known only to court participants, because the publicly available version of the complaint—filed on Nov. 30—is redacted to protect proprietary information about the bid. Since then, all substantive written briefs in the case have been sealed to the public.

Both Rivada Mercury and U.S. Department of Justice declined to comment for this story. A call by IWCE’s Urgent Communications to AT&T was not returned in time to be included in this article.

One legal document in the case noted that U.S. government officials have agreed that the nationwide FirstNet contract would not be awarded before March 1, but that commitment would have any impact on the court’s decision-making timetable, according to legal sources.

U.S. state and public-safety officials are keenly interested in the outcome of the case. The FirstNet procurement award is the action that would establish the timetable for myriad processes, including the nationwide FirstNet buildout and states’ decisions whether to pursue the “opt-out” alternative.