Court releases redacted decision in FirstNet case; Rivada Mercury disagrees with criticisms of its proposal

Evaluators determined that Rivada Mercury’s proposal to build and maintain FirstNet’s nationwide public-safety broadband network (NPSBN) was “risky” because of uncertainty surrounding third-party funding, teaming agreements and its wholesale-broadband-market business plan, according to a court ruling released last Friday.

U.S. Court of Federal Claims Judge Elaine Kaplan on March 17 upheld the SSA’s determination, dismissing all of Rivada Mercury’s claims that its consortium should have been considered within the final “competitive range” stage of bidders vying for the 25-year NPSBN contract. The ruling cleared the path for FirstNet to award the 25-year nationwide contract to AT&T, which emerged as the only bidding team that reached the “competitive range” stage.

Rivada Mercury’s proposal “contain[ed] ‘deficiencies and/or [a] combination of significant weaknesses that, if accepted, would introduce excessive, increased risk,’ making successful performance ‘highly unlikely,’” according to the U.S. Court of Federal Claims decision, quoting the findings of the source selection authority (SSA) overseeing the FirstNet procurement.

“The SSA ‘concluded that Rivada’s business model contains inherent risks that could negatively impact its financial sustainability.’ These included Rivada’s ‘need to secure substantial third-party financing’ and its ‘dependence on Band 14 device adoption, which it did not demonstrate it could secure.’”

In addition, Rivada Mercury lacked formal agreements with many companies included in its announced bidding team, so FirstNet would have to wait for such deals to be finalized before it could proceed with the buildout of the nationwide network, according to the court decision—again quoting the SSA.

“Thus, conducting discussions with Rivada would be ‘costly and time consuming, and would place a financial and scheduling burden on both the Government and all Offerors,’” according to the ruling, quoting the SSA’s findings. “And ‘[e]ven with substantial changes to [its] proposal[] . . . Rivada[’s offer] would not be considered among the most highly rated offers.’ Accordingly, the SSA eliminated Rivada’s proposal from the competitive range.”

In contrast, the SSA cited AT&T’s considerable experience building and operating nationwide wireless systems, noting that the carrier’s position “meant that it would ‘be able to construct, operate, and maintain the NPSBN [ . . . ], serve public safety users, commercialize the excess spectrum capacity, and make the required [p]ayments to FirstNet,’” according to the court ruling.

AT&T also could leverage its subscriber base of 130 million customers to ensure that devices that can operate on 700 MHz Band 14 airwaves—the spectrum licensed to FirstNet—would be manufactured in meaningful quantities, according to evaluators.

As with the Rivada Mercury bid, evaluators also cited AT&T failure to provide executed teaming agreements as a weakness in its proposal. Another key weakness in the AT&T bid was “the fact fact that its ‘overall proposed adoption targets [we]re low, as [it] propose[d] a penetration rate of [redacted] of the addressable market for extended primary public-safety users,” according to the court decision, quoting the SSA.

Although the results of court ruling were announced on March 17, the text of the decision was not released, in an effort to protect sensitive and proprietary information associated with parties to the lawsuit. A redacted version of the decision was released on Friday.

“FirstNet is pleased the court was able to quickly release the reasoning of its decision,” FirstNet CEO Mike Poth said in a prepared statement. “It clearly validates our thorough and quality acquisition process, which was designed and implemented to provide FirstNet and public safety with the best-value, most-sustainable and lowest-risk approach to deploying the nationwide public-safety broadband network.

Rivada Mercury has not yet determined whether it will file an appeal, Rivada Mercury spokesman Brian Carney said yesterday during an interview with IWCE’s Urgent Communications. Rivada Mercury officials disagree with many of the criticisms that were cited by the SSA and the source-selection evaluation board (SSEB) but understood the judge’s ruling, he said.

“Obviously, the judge’s determination was based on a standard of reasonability; she found that the source-selection authority’s determination was reasonable,” Carney said during an interview with IWCE’s Urgent Communications. “That’s a pretty high bar for any protester to clear; the burden of proof was on us, and obviously we didn’t meet that burden.

“But I would also say that the redacted decision—which is, of course, all I have access to—would appear to suggest that we had a better monetization plan, better value for public safety and better coverage than the plan that FirstNet selected.”