PSA Advocate Special Edition 12 4 2016

Sun Dec 4 16:35:12 201

FirstNet RFP Award: Yet more Delays?

Last week Urgent Communications, TR Daily, Communications Daily, and others ran stories citing reports that Rivada Mercury had been notified on October 17, 2016, by the U.S. Department of the Interior (DOI), the lead federal procurement organization for the FirstNet RFP, that it had been excluded from the final phase of the FAR RFP award process.

This information came to light not because Rivada Mercury made it public but because it has filed a protest in the form of a request for an injunction and the final written motions in the litigation are not due until February 16, 2017. 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. 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.

In the meantime, the Department of the Interior could, in fact, issue a contract award to the remaining bidder (assuming there is only one bidder left standing). While I am not an attorney, the attorneys I have discussed this with indicate they believe an award won’t be forthcoming until the court issues have been resolved. As has been pointed out to me by others, it appears that since there has been no award the most that could be expected to happen if the court sided with Rivada would be to instruct the DOI to add Rivada to the final stage of the process, but that would not necessarily result in an award for Rivada. Again, since I am not an attorney, I am not making this statement based on my own knowledge but on what I have been advised will most likely happen by people who do practice law.

If this was not an RFP being administered by the federal folks, with so many attorneys on staff that none will be willing to stick their necks out, the award would be made and work could start on this much-needed project and the court would weigh in with its decision when it is made. However, in the world of federal attorneys, especially as we approach the changing of the guard, I doubt whether any agency would be willing to move forward with an award. This is, of course, 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. Let me explain. 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.

I am speaking from experience having in the past worked for the lowest and fully complaint bidder for a number of large systems, and having been part of lawsuits and filings of requests for re-consideration, and then having been awarded the contract to the dismay of the organization that really did not want us, no matter what we did nothing was good enough and in some cases we ended up withdrawing in disgrace after spending much more than the contract was worth. I have to believe this would be the case for any company that held up the FirstNet project beyond the delays the Public Safety community has already suffered.

The difference here, of course, is that an award has not yet been made and the court action is about being cut from the final FAR process rather than an award made to another vendor. I suspect the federal attorneys are more than prepared to support their actions and even with the political clout Rivada has accumulated, and the administration is changing, all of this will take place in the courts while the new administration and Congress are up to their ears and eyeballs in what they will consider to be much more important matters than a $30 billion contract with FirstNet.

I hope the loser here is not the Public Safety community since I view this as just another unfortunate delay. The loser will ultimately be Rivada Mercury regardless of whether it wins or loses in the court of law. I believe Rivada has already lost in the courts that matter most, the Public Safety community it has said it wants to serve and FirstNet.

Andrew M. Seybold

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