All eyes on court as decision time approaches in FirstNet case

With all scheduled written briefs completed, the court is expected to determine whether oral arguments or other inputs are needed before making a decision. How quickly a decision would be rendered is anybody’s guess, but the fact that written-briefing portion of the deliberations has proceeded smoothly should be an encouraging sign for those who want the legal case finished as quickly as possible.

Of course, there is no way to predict the outcome of the case, but legal and government-procurement sources have identified three primary scenarios:

• If Rivada Mercury wins, the Rivada Mercury bid would be considered in the “competitive range” stage of the FirstNet procurement, assuming the U.S. government does not file an appeal. After the competitive-range evaluation is completed, the bidder that is not selected would have the option of filing a protest at that time. This scenario could take several months.
• If the U.S. government prevails in the case and Rivada Mercury appeals, this also could result in a delay. However, sources indicate that FirstNet could have the right to proceed with the selected contractor quickly, making an award that would be contingent on the outcome of the Rivada Mercury appeal. Making this option more complicated is the fact that various components of the FirstNet initiative—from the delivery of state plans to opt-out scenarios—could be difficult to unravel, if the outcome of the current case were reversed on appeal.
• If the U.S. government prevails in the case and Rivada Mercury does not appeal the decision, then the procurement process can be completed. This would be the simplest and quickest outcome.

It should be noted that that FirstNet board is not obligated legally to make an award. Theoretically, it could review the evaluation team’s selection and decide not build the network at this time, or it could choose to restart a procurement process. However, no one believes that would happen, for a variety of reasons, the most notable being that many doubt that Congress would allow FirstNet to survive such a setback.

A court document indicates that the U.S. government has promised that a FirstNet award would not be made until at least March 1. Will it happen close to that date or months later? There’s no way to tell now, but it appears that the key first step for all scenarios—the court decision on Rivada Mercury’s lawsuit—could be taken relatively soon.