Court Rules in Favor of Government in Rivada Mercury FirstNet Bid Challenge

March 17, 2017–The U.S. Court of Federal Claims today ruled in favor of the U.S. government in litigation filed against the First Responder Network Authority (FirstNet) over its procurement process, clearing the way for FirstNet to announce an award to construct and maintain a nationwide public safety broadband network. The award is expected to go to AT&T, Inc., the last publicly known remaining bidder still in the running for the contract.

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 was an intervenor in the case.

Rivada Mercury is led by Rivada Networks LLC and includes Black & Veatch, Fujitsu Network Communications, Harris Corp., and Nokia, Inc. In a sealed opinion and order released today in “Rivada Mercury LLC v. United States of America”; no. 16-1559C, Judge Elaine D. Kaplan denied Rivada Mercury’s motion for judgment and granted cross-motions filed by the U.S. government and AT&T. A redacted version of today’s ruling could be released within weeks. Judge Kaplan held an oral argument in the case on March 3 (TRDaily, March 3). The oral argument was closed to the public and press, and substantive filings in the docket are sealed.

In a news release, FirstNet Chief Executive Officer Mike Poth said, “We are pleased with the Court’s decision. This is a positive development for FirstNet and the public safety community. FirstNet intends to move expeditiously to finalize the contract for the nationwide public safety broadband network.” In an e-mail to members of FirstNet’s Public Safety Advisory Committee, Mr. Poth said, “As we said we would, FirstNet has continued to work on the procurement up to the point of an award. We are ready to move forward on the necessary steps to finalize the contract for the nationwide public safety broadband network. Among the next steps will include a special FirstNet Board meeting. We will provide the details for the meeting as they become available.”

At a board meeting this week, FirstNet officials stressed that the organization was ready to move ahead with a contract award or other action directed by the court once it ruled on the bid challenge (TRDaily, March 14).

Rivada Networks spokesman Brian Carney told TRDaily this afternoon that “we regret” today’s court decision. Asked if the company planned to appeal, he replied, “We haven’t seen the opinion yet, so no comment on possible appeal.” In a tweet, Declan Ganley, co-CEO and executive chairman of Rivada, said the company plans to “read [the] judgement, [and] consider [an] appeal …” Mr. Carney also told TRDaily that the court ruling “won’t stop us from offering our superior solution to the states.”

Rivada issued a news release today saying that “it will work directly [with] the states and territories that may want to exercise their right to opt-out of FirstNet’s federal solution. Rivada is already working with … New Hampshire on an alternative plan for that state—should it decide to opt-out—and is bidding on similar work in other states.”

“Rivada was founded on the conviction that first responders need and deserve access to a world-class, purpose-built high-speed wireless network,” Mr. Ganley said in the news release. “We want America’s Governors to know that Rivada’s solution remains available to them even if FirstNet ultimately chooses a different approach. … States and their first responders deserve a real choice.”

Mr. Ganley also tweeted that “Rivada has won [the] New Hampshire RFP & has prepared detailed proposals for Arizona & Alabama RFPs. Michigan issued state RFP this week[.]” He also said that Rivada planned to “ramp up with States that want their opt out right for a Network & not a rate plan.” And he said suggested that AT&T won’t be able to compete with Rivada.

“We are fully prepared to execute our plan to work with the states to build state-of-the art, dedicated networks for Public Safety,” Rivada co-CEO Joe Euteneuer said in the news release. “We applaud New Hampshire’s recognition of Rivada’s experienced management team, technology, and technical expertise and believe many other states will make a similar selection.” Mr. Euteneuer added: “FirstNet has made its choice. Now it is time for states to make theirs. Those that stand by idly will be forced into a federal solution that may or may not suit their needs or budgets. We look forward to working with the states to ensure that they receive a network equal to the promise made to public safety when FirstNet was created.”

“We are pleased by the court’s ruling as it allows FirstNet to select its partner and jump-start the process of delivering America’s first nationwide broadband network dedicated to public safety,” an AT&T spokesman said. “We would be honored to be selected and help fulfill FirstNet’s important public safety mission.”

Public safety advocates applauded today’s court decision.

“APCO is very pleased to learn that the U.S. Court of Federal Claims has ruled in favor of FirstNet in the protest action,” said Derek Poarch, executive director and CEO of the Association of Public-Safety Communications Officials-International. “The public safety community has never been closer to having a dedicated, interoperable nationwide broadband network that keeps pace with advances in technology.  As we eagerly await the announcement of FirstNet’s partner to build the Nationwide Public Safety Broadband Network, APCO extends its best wishes and appreciation to the talented Board members and staff who are working hard to serve public safety.”

“Best, Best & Krieger clients never looked to take sides in the underlying conflict except to say that a decision needed to be made in a timely manner. We all look forward to the day that are public safety personnel have access to a dedicated broadband wireless network,” said Gerry Lederer, an attorney for Best, Best & Krieger LLP, which represented the Bay Area Regional Interoperable Communications Systems (BayRICS) Authority and the city of Boston, which submitted an amicus brief in the case seeking a swift resolution to the litigation (TRDaily, Feb. 22).

“I am hopeful that the resolution of this court case in favor of FirstNet will be the last hurdle which has to be faced before the important work of awarding the contract and getting the network up and running can begin,” said Andy Seybold, a wireless industry consultant and public safety advocate. “It has been a long time coming but this is a major win for FirstNet and for all of the Public Safety community.” – Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily