What the elimination of pdvWireless may indicate about the timing of the overall FirstNet project

Believe it or not, we are just 12 days from Nov. 1, the target date that FirstNet officials established to announce which bidding team will be named as the contractor to build, maintain and upgrade the much-anticipated nationwide public-safety broadband network (NPSBN) for the next 25 years.

What will we learn at the time of the announcement? Aside from the identity of the winning contractor team, no other information has been confirmed.

In addition, the Nov. 1 date is not set in stone—FirstNet officials have always acknowledged the possibility that the announcement timing could be later than Nov. 1, depending on circumstances surrounding the request-for-proposals (RFP) process. More recent public statements by FirstNet officials have indicated that the announcement could happen in the November timeframe.

This week’s news that pdvWireless received written notification that its bidding team is no longer being considered for the nationwide FirstNet is being interpreted very differently by industry sources.

Some are encouraged, noting that the elimination of at least one bidder is a sign of tangible progress, making it more likely that a winner can be identified quickly. Others believe the action could mean a delay long beyond the Nov. 1 target date, pointing to language included in the Federal Acquisition Regulations (FAR)—the procurement regulations being used in the FirstNet bid.

Section 15.306 of the FAR describes the communications that are allowed between the contracting officer and bidders. The rules state that a contracting officer is allowed to determine a “competitive range” of the most viable bidders and can eliminate an offeror’s proposal, if it is not deemed to be in this competitive range. Notification of such elimination is to be done in writing, as appears to be the case with pdvWireless.

It is only after this narrowing of the field is done that negotiations with the bidders in the competitive range can begin, according to the FAR.

“When negotiations are conducted in a competitive acquisition, they take place after establishment of the competitive range and are called discussions,” according to the FAR regulations. The FAR also stipulates that no discussions with bidders that submit proposals that are clearly are in the “competitive range” prior to the competitive range being established, although clarification communications can be exchanged prior to that time.

In other words, it is very likely that these negotiations would mark the first time the most viable bidding teams will have the opportunity to engage in give-and-take discussions with the contracting officer’s representatives regarding key aspects of their proposals. And it appears that the first chance to conduct those negotiations may have been on Tuesday, if I read the FAR language correctly (Disclaimer: I am not a lawyer or someone who is an expert in the FAR).

If that’s the case, it is hard to imagine a FirstNet winner being announced by Nov. 1, unless the decision is made without discussion—a legal option under the FAR, but one that would seem unusual for a project of this magnitude with myriad implications. In fact, if hard-core negotiations with the top bidding teams are just starting—much less the exercise of comparing and contrasting their proposals—it would seem possible that it could be quite some time before a winner is announced.