A federal judge today ruled against Rivada Mercury’s protest against the FirstNet procurement protest, a move that is expected to set the stage for AT&T to be awarded the 25-year contract to build and maintain the much-anticipated nationwide public-safety broadband network (NPSBN).

U.S. Court of Federal Claims Judge Elaine Kaplan issued rulings denying Rivada Mercury’s motion to have the proposal from its bidding consortium considered in the “competitive range” stage of the procurement process for the FirstNet contract. AT&T’s bidding team is the lone entity left in the “competitive range” stage of the procurement, according to documents filed by Rivada Mercury and AT&T. Given this, industry and procurement sources believe AT&T will be awarded the nationwide FirstNet contract, unless subsequent legal action prevents it from happening.  

Kaplan also granted motions from the U.S. Department of Justice (DOJ)—representing FirstNet—and AT&T, which intervened in the case on behalf of FirstNet.  Details of the decisions were not made public, as the court has sealed most substantive documents filed in the litigation to protect proprietary and sensitive information.

“We are pleased with the Court’s decision,” FirstNet CEO Mike Poth said in a prepared statement. “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 shared with the single points of contact (SPOCs), Poth said that one of the next steps for FirstNet will be to conduct a special board meeting, the details of which will be shared “as they become available.”

AT&T also applauded the Kaplan’s decisions.

“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,” according to the AT&T statement. “We would be honored to be selected and help fulfill FirstNet’s important public-safety mission.”

This sentiment was in stark contrast to the reaction of the Rivada Mercury bidding team, which is led by Rivada Networks. Rivada Networks co-CEO Declan Ganley said his company plans to compete for contracts to build and maintain the radio access network (RAN) within states that pursue the “opt-out” alternative.

“We regret the decision, but it won't stop us from offering our superior solution to the states,” Ganley said in a statement provided to IWCE’s Urgent Communications.

Last year, Rivada Networks won the procurement to build the RAN in New Hampshire, if that state’s governor chooses to pursue the “opt-out” alternative. Under the “opt-out” provision, a state can assume responsibility for building and maintaining the radio access network (RAN) within its boundaries, but this RAN must interoperate with the nationwide FirstNet system.

Rivada Networks co-CEO Joe Euteneuer also emphasized Rivada Networks’ opt-out strategy.

“We are fully prepared to execute our plan to work with the states to build state-of-the art, dedicated networks for Public Safety,” Euteneuer said in a prepared statement. “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.

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.”

In addition to addressing Rivada Networks’ opportunities, Ganley stated that “we are considering our options for appeal.”

Procurement sources indicate that awarding the contract to AT&T in the near term—some sources have speculated that it could be done within a week or two—is legal, even if there is an appeal. But one consideration for the FirstNet board is that all of the post-award activities would be extremely difficult to “undo” and replicate, if Rivada Mercury were to win an appeal of today’s court decisions and eventually emerge as FirstNet’s nationwide contractor, according to multiple sources. 

Of course, that scenario could become reality only if Rivada Mercury were to win an appeal and be selected as the superior bid to AT&T by an evaluators that already determined that Rivada Mercury offering is not in the same “competitive range” as the AT&T proposal. If the FirstNet board is confident that today’s court rulings will be upheld or that AT&T would emerge as the procurement winner, then proceeding with the nationwide award would be appropriate, according to legal and procurement sources.

For public safety, an award would mark a significant milestone in the effort to provide a nationwide interoperable communications network for public safety—the lone recommendation from the 9/11 Commission that has not been implemented to date. Congress approved the legislation establishing FirstNet five years ago, in February 2012.

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