Court Holds Oral Argument on Rivada FirstNet Challenge

March 3, 2017–The U.S. Court of Federal Claims today held an oral argument in litigation against the First Responder Network Authority (FirstNet) over its procurement. Filings in the case were sealed, so the oral argument was closed to the public and news media. FirstNet had hoped to announce an award by Nov. 1, 2016, but Rivada Mercury LLC filed a lawsuit over what it said was the illegal and “wrongful exclusion” of the consortium from the FirstNet procurement process (TRDaily, Dec. 2, 2016). AT&T, Inc., is the only other publicly known remaining bidder.  The carrier is an intervenor in the case.

Judge Elaine D. Kaplan presided at today’s oral argument. Asked to comment on the session, Rivada Mercury spokesman Brian Carney noted that it was conducted under protective order. Justice Department spokeswoman Nicole Navas declined to comment.

Meanwhile, Judge Kaplan yesterday denied a motion by “Communications Daily” for access to transcripts of oral proceedings, copies of pleadings, a transcript of the oral argument, and permission for a reporter to attend the oral argument. The order said that Jonathan Make, the publication’s executive editor, “represents that he understands that proprietary information would be redacted from any written materials he receives. Further, he contends that the court could close to the public only those portions of the oral argument during which proprietary information will be discussed.

“Due to the nature of the case, the court does not believe that it will be practicable to segregate those portions of the argument containing proprietary information from the rest of the argument,” the judge said. “Further, Mr. Make may obtain access to redacted versions of the filings in this case as they are made available to the public in accordance with the protective order entered in the case.”

Separately, Judge Kaplan denied a motion by Kenneth Chrosniak and Eric Holdeman to file an amicus brief. She said the brief was untimely. “Further, the proposed amicus brief is not pertinent to the Court’s decision in the case: it focuses on the solicitation’s terms, not the agency’s evaluation of the proposals it received,” she said in an order.  – Paul Kirby, paul.kirby@wolterskluwer.com