Rivada Lawsuit Pushes Back FirstNet Procurement, State Plans

December 5, 2016–A lawsuit filed recently by Rivada Mercury LLC over what it says is the illegal and “wrongful exclusion” of the consortium from the First Responder Network Authority’s (FirstNet) procurement process (TRDaily, Dec. 2) creates uncertainty about when FirstNet will award its contract and when state plans will be delivered to states. A footnote in the lawsuit said that the company’s counsel and the Department of Justice’s counsel agreed that an award of the FirstNet contract would not be made until March 1, 2017, but that timeline could be delayed by the litigation.

In his weekly e-mailed commentary, Andy Seybold, a wireless industry consultant and public safety advocate, bemoaned the potential impact of Rivada’s legal challenge. He noted that that the final briefs on the litigation are not due to Feb. 16, 2017. The judge in the case says she will schedule an oral argument in a later order. “This means any award to another bidder might not be possible until at least March and probably later, and if Rivada Mercury has its day in court and prevails then the entire process is likely subject to even further delays,” he said. “This could include a do-over for the entire RFP which, if required, might spur the new Congress and administration to review the entire FirstNet arrangement and potentially make some changes to the detriment of the Public Safety community.”

“My own opinion of this situation is that by involving the court Rivada Mercury loses even if it wins,” Mr. Seybold suggested. “There have been so many delays in getting FirstNet off the ground and so many questions in the minds of the Public Safety community if it would ever happen. Then during the past two years or more FirstNet has produced and moved quickly (for a federal entity). The award of the RFP is the end of one era and the beginning of another. Public Safety, once skeptical about FirstNet, is now, for the most part, ready to have it built and up and running. So, no matter what the outcome is for Rivada, it has, in my opinion, created an environment where even if it were somehow to manage to be awarded the contract, the Public Safety community and most states would make it almost impossible for Rivada to meet the timeframes required by the FirstNet RFP.”

Analysts at Raymond James & Associates, Inc., observed in a research note today that the litigation is likely to push back FirstNet’s process by at least four months.

“Given the sealed pre-award protest by Rivada, and current court schedule, we see two timelines developing: 1) the government and AT&T win the case and the FirstNet partner selection is made official ~3/17 (vs. previously 11/16) with state plans due ~9/17 (vs. 5/17) and each governor opting in or out by ~12/17 (vs 8/17), or 2) Rivada wins the case and the bid review process restarts, possibly pushing partner selection to ~9/17,” the note said.

However, the judge in the Rivada case said she would schedule oral argument in the case later, making it uncertain when an eventual court ruling would come. – Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily