AT&T Is Bidder in FirstNet 'Competitive Range,' Rivada Mercury Files Pre-Award Protest
Friday, December 02, 2016 | Comments
AT&T announced in a Securities and Exchange Comission (SEC) filing Dec. 2 that it was informed by the First Responder Network Authority (FirstNet) it is a bidder within the "competitive range" for a contract award under FirstNet's request for proposals (RFP). On Nov. 21, Rivada Mercury filed a pre-award protest of the FirstNet RFP, saying the Department of Interior (DOI) made an “unlawful decision to exclude Rivada Mercury’s proposal from the competitive range for the award.”

In its SEC filing, AT&T said it is not aware of any other bidders who remain within the competitive range of the procurement. "Should AT&T's bid be accepted, we look forward to serving the public-safety community through this contract and making a significant investment in the infrastructure of our country," AT&T said. "The actual reach of the network and necessary investment will be determined by the election to participate by the individual states."

The Rivada protest seeks a permanent injunction against the DOI to prevent it from awarding a contract under the FirstNet RFP without first including Rivada in the competitive range, conducting discussions with Rivada according to Federal Acquisition Regulation (FAR) and evaluating the company according to the solicitation.

“Interior’s wrongful exclusion of Rivada Mercury from the competition eliminated a strong, viable competitor from this important procurement and reduced the field to a single remaining competitor,” the protest said. “In doing so, Interior failed to make any reasoned or explicit determination that Rivada Mercury had no reasonable chance of being selected for award following discussions. In fact Interior failed to conduct proper discussions as it was required to do.”

The protest takes issue with “an extraordinary number of exchanges” between Rivada and the DOI. DOI said the exchanges were clarifications, while Rivada said they fall into the category of discussions under FAR.

Rivada said in the lawsuit that under FAR, a federal agency conducting discussions has to “identify each deficiency and significant weakness that the agency has identified.” The company argues that DOI did not follow FAR because it did not identify or allow the company to respond to the deficiencies and weaknesses “that apparently then formed the basis for Interior’s decision to eliminate Rivada Mercury from the competition.”

In the protest filing, Rivada also alleged that the DOI’s evaluation of its proposal was “arbitrary and capricious” and “did not conform to the solicitation requirements or procurement laws and regulations.”

Rivada filed its protest with the U.S. Court of Federal Claims (UCFC) on Nov. 21. On Nov. 28, AT&T filed a motion to intervene in the protest, and the court approved it the same day.

“Because AT&T is within the competitive range and stands a substantial chance of receiving the award in this procurement, AT&T has a direct interest in the outcome of this case,” AT&T’s filing said. “This court has routinely allowed offerors within a competitive range to intervene as party-defendants in similar protests.”

Rivada’s protest filing also alleges that its elimination leaves one remaining competitor in the field. However, only FirstNet’s core selection team knows for certain who is left in the bidding process.

FAR rules include the following regulations on eliminating proposals and a competitive range: “(2) After evaluating all proposals in accordance with 15.305(a) and paragraph (c)(1) of this section, the contracting officer may determine that the number of most highly rated proposals that might otherwise be included in the competitive range exceeds the number at which an efficient competition can be conducted. Provided the solicitation notifies offerors that the competitive range can be limited for purposes of efficiency (see 52.215-1(f)(4)), the contracting officer may limit the number of proposals in the competitive range to the greatest number that will permit an efficient competition among the most highly rated proposals (10 U.S.C. 2305(b)(4) and 41 U.S.C. 3703).

“… AT&T has direct and substantial economic interests at stake in this case, and its disposition clearly could impact those interests,” the AT&T motion said. “Furthermore, AT&T understands that Rivada’s complaint seeks permanent injunctive relief, which could delay and/or disrupt the procurement and directly harm AT&T’s financial interests.”

AT&T also said that the government could not adequately represent AT&T’s interests because it has different goals and interests when defending against protests. “AT&T has separate financial interests that the government has no incentive to defend,” the AT&T motion said.

The court approved AT&T’s motion, saying that it was in the competitive range and could intervene to “protect its substantial economic interest in the award of the contract at issue.”

"The Department of Justice’s Commercial Litigation Branch, Civil Division has assigned counsel to defend against Rivada’s protest and is the counsel that will represent the interests of FirstNet and the federal government in this case,” said a FirstNet spokesperson. “FirstNet program counsel, along with DOI and DOC counsel, will support DOJ’s efforts. We have no further comment as the matter is pending litigation.” Rivada Mercury and pdvWireless announced that they had submitted bids for the FirstNet contract, following the submission deadline. In October, pdvWireless said in a Securities and Exchange Commission (SEC) filing that it was informed by DOI that it was out of the running for the FirstNet reward.

The government filed its administrative record, which outlines its decision-making process in the matter, with the court Dec. 5. The document was sealed under a protection order placed on the case.

The filing of the administrative record was the first of several deadlines outlined in a scheduling order from Judge Elaine Kaplan. Rivada has until Dec. 23 to file a motion for judgment on the administrative record, and the government and AT&T then have until Jan. 19 to respond to that motion and file a cross-motion. A pair of response deadlines then follow, with the latest set for Feb. 16.

Kaplan said in the scheduling order that the court would schedule any oral arguments on the motions in a future order.

FirstNet originally planned to award the RFP by Nov. 1, but announced in late October the award would be delayed. A FirstNet spokesperson said the entity’s December board meeting is on track for Dec. 13 – 14 as originally scheduled.

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