Rivada Mercury, LLC v. United States , 2017 U.S. Claims LEXIS 264 ( 2017 )

In the United States Court of Federal Claims
No. 16-1559C
(Filed Under Seal: March 17, 2017 | Reissued March 31, 2017)*
) Keywords: Pre-Award Bid Protest;
RIVADA MERCURY, LLC, ) Competitive Range Determination;
) FAR 15.306; Discussions; Unstated
Plaintiff, ) Evaluation Criteria; Unequal
) Evaluation.
v. )
)
THE UNITED STATES OF AMERICA, )
)
Defendant, )
)
and )
)
AT&T CORP., )
)
Defendant- )
Intervenor. )
)
Daniel E. Chudd, Morrison & Foerster LLP, McLean, VA, for Plaintiff. David A.
Churchill, Ethan E. Marsh, and Sandeep N. Nandivada, Morrison & Foerster LLP, and
David B. Dempsey, Jeffry R. Cook and L. James D’Agostino, Dempsey Fontana, PLLC,
Tysons Corner, VA, Of Counsel.
Jessica R. Toplin, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Washington, DC, with whom were L. Misha Preheim, Assistant
Director, Robert E. Kirschman, Jr., Director, and Chad A. Readler, Acting Assistant
Attorney General, for Defendant.
Daniel R. Forman, Crowell & Moring LLP, Washington, DC, with whom were John E.
McCarthy, Jr., James J. Regan, Jonathan M. Baker, Mark A. Reis, Olivia L. Lynch,
Robert J. Sneckenberg, Hart W. Wood, and Nkechi A. Kanu, for Defendant-Intervenor.
*
This Opinion was originally issued under seal, and the parties were given the
opportunity to request the redaction of competitively sensitive information. The Opinion
is now reissued with redactions indicated by brackets containing ellipses. The Court has
accepted the majority of the parties’ proposed redactions. It rejected the parties’
proposals where it concluded that the information sought to be redacted was not
proprietary or competition sensitive or where it determined that redaction of the
information would preclude the reader from fully understanding the Court's reasoning.
OPINION AND ORDER
KAPLAN, Judge.
This pre-award bid protest involves a unique and complex procurement which
implements a critical public safety recommendation made by the 9/11 Commission. In it,
the government seeks a contractor to build-out, deploy, and operate a nationwide public
safety broadband network (NPSBN). Once deployed, the NPSBN will transform the
nation’s emergency response system by consolidating public safety use of the radio
spectrum, which will permit emergency responders across the country to use devices that
are compatible with one another. The NPSBN will thus enable the public safety
community to transition away from a patchwork of antiquated, analog systems and into a
modern, digital communication environment.
The plaintiff in this protest, Rivada Mercury, LLC (Rivada), is a
telecommunications company formed specifically to pursue the NPSBN contract. It
brought this action when, after receiving and evaluating proposals, the procuring agency,
the First Responder Network Authority (FirstNet or “the agency”), established a
competitive range that excluded Rivada and included only Defendant-Intervenor AT&T
Corp. (AT&T). Rivada contends that the agency erred when it allegedly entered into
discussions before it established the competitive range and then failed to ensure that those
discussions were meaningful and not misleading. Further, it claims that FirstNet’s
evaluation of its proposal and its decision to eliminate Rivada from consideration were
flawed in myriad ways.
The parties have filed cross-motions for judgment on the administrative record.
For the reasons discussed below, Rivada’s claims lack merit. Accordingly, Rivada’s
motion for judgment on the administrative record is DENIED, and the government’s and
the intervenor’s cross-motions for judgment on the administrative record are
GRANTED.
BACKGROUND
I. Statutory Background
A. Overview and Purpose of the FirstNet Program
In the wake of its in-depth examination of the September 11, 2001 terrorist
attacks, the 9/11 Commission determined that communication problems plagued the
public safety response to the emergency. Specifically, radio traffic had overwhelmed
existing communications channels, and emergency responders had difficulty coordinating
because their radios operated on different bands of the radio spectrum.1 The 9/11
1
The radio spectrum consists of those electromagnetic waves with wavelengths from
approximately 500 KHz to 300 GHz. Harry Newton, Newton’s Telecom Dictionary 947–
48 (26th ed. 2011). These frequencies are useful for transmitting data because waves in
these frequencies induce electric currents in appropriate conductors. See Chambers
Commission Report 319–23 (2004). The Commission thus identified a pressing need for
“the expedited and increased assignment of radio spectrum for public safety purposes.”
Id. at 397.
In February 2012, acting on the Commission’s recommendation, Congress created
FirstNet, which is an independent authority within the National Telecommunications and
Information Administration (NTIA).2 See Middle Class Tax Relief and Job Creation Act
of 2012 (FirstNet Act or “the Act”) § 6204, 47 U.S.C. § 1424 (2012). In the Act,
Congress directed FirstNet to “ensure the establishment of a nationwide, interoperable
public safety broadband network.”3 See 47 U.S.C. § 1422(a).
Congress specified that the NPSBN “shall be based on a single, national network
architecture” with two primary components: a “core network” and a “radio access
network.” Id. § 1422(b). The core network would “consist[] of national and regional data
Dictionary of Science and Technology 954 (Peter M.B. Walker, ed. 1999). Congress
asserted federal control over the radio spectrum in 1927. See Radio Act of 1927, Pub. L.
No. 69-632, 44 Stat. 1162 (imposing “the control of the United States over all the
channels of interstate and foreign radio transmission” and providing for “the use of such
channels, but not the ownership thereof, by individuals, firms, or corporations, for limited
periods of time, under licenses granted by Federal authority”).
2
NTIA is an executive branch agency located within the Department of Commerce. See
About NTIA, National Telecommunications & Information Administration,
https://www.ntia.doc.gov/about (last visited March 17, 2017). NTIA “is principally
responsible . . . .for advising the President on telecommunications and information policy
issues,” with a focus on “expanding broadband Internet access and adoption in America,
expanding the use of spectrum by all users, and ensuring that the Internet remains an
engine for continued innovation and economic growth.” Id.
3
In this context, “interoperability” has been defined as:
[T]he ability of all authorized local, state[,] and federal public
safety entities and users to operate on the NPSBN and commercial
partner networks, to access rapid, reliable[,] and secure
communication services, in order to communicate and share
information via voice and data. These communications services
must support existing and future applications and operate across
functional, geographic[,] and jurisdictional boundaries.
Admin. R. (AR) Tab 1 at 23 (report of the Technical Advisory Board for First Responder
Interoperability, which was convened to lay the technical groundwork for the NPSBN).
To achieve interoperability, first responders must use technically interoperable devices—
that is, devices with “the ability . . . to successfully exchange data and use information”
irrespective of any differences between the devices’ manufacturers or the users’ service
providers. See id.
3
centers” that would “provide[] the connectivity between the radio access network[] and
the public Internet or the public switched [telephone] network, or both.” Id.
§ 1422(b)(1)(A)–(B) (internal subsections omitted). The radio access network would
“consist[] of all cell site equipment, antennas, and backhaul equipment . . . that are
required to enable wireless communications with devices using the public safety
broadband spectrum.” Id. § 1422(b)(2)(A).
The Act also instructed the Federal Communications Commission (FCC) to
reallocate a substantial portion of the 700 megahertz band of the spectrum for public
safety use.4 See id. § 1411. This portion is known as “Band 14.” See AR Tab 1 at 17.
Congress further directed the FCC to grant FirstNet an exclusive, ten-year license for the
use of Band 14. See 47 U.S.C. § 1421.
B. FirstNet’s Responsibilities and Funding Mechanism
Congress set forth an elaborate set of requirements for FirstNet to carry out in
establishing the NPSBN. See id. § 1426(b). As most relevant here, with respect to
building and deploying the network, FirstNet was to, among other things, “speed
deployment of the network” by “leverag[ing], to the maximum extent economically
desirable, existing commercial wireless infrastructure.” Id. § 1426(b)(1)(C).
Congress allocated $7 billion to FirstNet to fund the network build-out process.
See id. §§ 1426(e), 1457(b)(3). Congress intended, however, that FirstNet would
ultimately become “permanent[ly] self-funding.” See id. §§ 1428(b), (d). Thus, to meet
its continuing financial needs, Congress authorized FirstNet to collect payments for the
use of its network capacity and any network infrastructure that it “constructed, owned, or
operated.” Id. § 1426(b)(4)(C). Such fees could include user fees collected from any
“entity, including any public safety entity or secondary user, that seeks access to or use of
the [NPSBN],” as well as lease fees for the use of its excess spectrum capacity. Id.
§ 1428(a)(1)–(2).
II. Preliminary Procurement Activities and Acquisition Plan
Following its creation, FirstNet spent three years gathering information to lay the
groundwork to procure the extensive services it would need to build and operate the
NPSBN. Based on the information it collected, FirstNet drafted a fifty-page acquisition
plan. AR Tab 28. Noting that the NPSBN undertaking was “an unprecedented
Government project,” id. at 685, the plan specified that FirstNet’s objective was to
4
The FCC has divided the spectrum into bands of frequencies and assigned many of
those bands to particular uses; entities wishing to operate within those bands must obtain
a license from the FCC (or contract with a license holder). See 47 U.S.C. § 309
(governing the license application process); see also Licensing, fcc.gov,
https://www.fcc.gov/licensing-databases/licensing; R.H. Coase, The Federal
Communications Commission, 2 J. of Law & Econ. 1, 1–7 (1959) (describing the
development of the licensing system).
4
“maximize the network’s value to public safety while meeting its financial sustainability
obligations under the Act,” id. at 668.
To meet its financial sustainability obligations, the agency planned to have
offerors “propose a level of fixed payments to FirstNet over time” based on the offerors’
estimations of “the value of FirstNet[’s] assets”—i.e., the funds appropriated by Congress
and FirstNet’s exclusive license to use the bandwidth in Band 14. See id. at 673 (noting
that “in addition to the available FirstNet funding, potential offerors may utilize Band 14
excess network capacity and revenues derived from public safety entities, as well as
revenue from their commercial users on Band 14, to support the operations of the
NPSBN”).
Further, FirstNet discussed three types of risks that the project faced: performance
and technical risk, cost risk, and schedule risk. Id. at 679–83. It rated each of these risks
as “high.” See id. For performance and technical risk, FirstNet observed that “[c]oncerns
associated with interoperability with opt-out states, reliability/availability, and coverage”
could “cause first responder lack of access to NPSBN services at a critical event and lead
to loss of life, serious injury, and/or failure to meet mission objectives and
requirements.”5 Id. at 679. With respect to cost risk, it noted that “Congressionally
allocated funding for the NPSBN” might be “inadequate to execute deployment and
operations” if the winning contractor “undervalued” FirstNet’s excess spectrum capacity.
Id. at 681. Finally, FirstNet assessed the schedule risk as “high” because (among other
things) “[t]he current anticipated schedule is aggressive” and “there is a potential that
FirstNet may not have enough Government allocated funding . . . to pay for full
nationwide coverage . . . resulting in a slower rollout.” Id. at 682–83.
III. The Solicitation and Source Selection Plan
On January 12, 2016, on behalf of NTIA and FirstNet, the Department of the
Interior issued Solicitation D15PS00295 (RFP or “the solicitation”), requesting proposals
to build and deploy the NPSBN. Id. Tab 30 at 714, 716. The solicitation explained that
“[t]he anticipated contract . . . will be a single award Indefinite-Delivery-Indefinite-
Quantity (IDIQ) with fixed price payments to [FirstNet] by the Contractor.” Id. at 1373.
Offerors were to submit their proposals in three volumes: business management,
technical, and price. Id. at 1382. Each volume would be divided into numerous sections
and subsections addressing different aspects of the offeror’s proposal. See id. at 1382–
433.
The RFP informed offerors that, pursuant to FAR 15.202, “a multi-phased
approach w[ould] be used to determine the overall best value to the Government for [the]
5
The Act established a mechanism by which states may “opt-out” of the nationwide radio
access network and instead “submit an alternative plan for the construction, maintenance,
operation, and improvements of the radio access network” in that state. See 47 U.S.C.
§§ 1442(e)(3)(A), (C)(i). Any opt-outs will not occur until the “completion of the
[NPSBN] request for proposal process.” Id. § 1442(e)(1).
5
acquisition.” Id. at 1435. “In light of [FirstNet’s] objective-based acquisition approach
and the unique nature of the FirstNet program,” the RFP explained, “the Government
w[ould] consider unique, innovative approaches to achieving an overall best value
solution.” Id. Further, “[a]s part of the multi-phased approach,” the government
“reserve[d] the right to request Offerors to conduct oral presentations and/or technical
demonstrations.” Id.
The evaluation would have four phases: (1) Capability Statements, (2) Solicitation
Conformance, (3) Pass/Fail, and (4) Detailed Evaluation. Id. at 1435–37. In the first three
phases, the agency would winnow out unqualified offerors and proposals with obvious
flaws. See id. If a proposal made it to the fourth phase, the government would conduct a
“detailed evaluation of all information and documentation received from the Offeror[].”
Id. at 1437. Through this detailed evaluation, the government would “determin[e] and
analy[ze] [the] strengths, weaknesses, and risks of [the] proposed solution” based on a
multiplicity of evaluation factors and subfactors, which are discussed in part below. Id. at
1438; see also id. at 1438–56.
The primary evaluation factors were (1) Business Management; (2) Coverage and
Capacity; (3) Products and Architecture; (4) Past Performance; and (5) Value Proposition
Assessment. Id. at 1438. As shown below, each of the first three factors included several
sub-factors:
Factor Sub-Factors
Business Management General
Leadership and Program Management
Public Safety Customer Acquisition
Customer Care and Life-Cycle Sustainment
Financial Standing
Delivery Mechanism for State Plans
Quality Assurance Surveillance Plan
Deliverables Table
Coverage and Capacity Coverage and Capacity Maps and Statistics
Radio Access Network (RAN) Strategy and Solutions
IOC Milestones for Coverage and Capacity
Products and Architecture Services
Applications
Device Ecosystem
Architecture and Infrastructure
Operations
Security
Test Strategy
6
See id. at 1438–54.
The fifth factor, Value Proposition Assessment, also had two components. Id. at
1455–56. First, the agency would assess the net present value (NPV) of the offeror’s
proposed payments to FirstNet. Id. at 1455. Next, it would “evaluate the overall value
proposition of the Offeror’s pricing volume to determine if an unbalanced or
unreasonable valuation exists.” Id. An unbalanced or unreasonable valuation would exist
“where the price of one or more nationwide or state elements is significantly overstated
or understated despite an acceptable total overall value proposition.” Id. To determine if
prices were understated or overstated, the agency would “assess the degree to which
proposed payments to the Contractor accurately reflect the effort described in the
technical volume as it correlates to the IOC/FOC milestones.”6 Id. at 1456. Further, the
agency would “assess the proposed approach pertaining to the drawdown of the aggregate
total of $6.5 billion of budget authority and the proposed payments to the Contractor for
each IOC and FOC milestone.” Id.
Rather than evaluating risk as a separate factor, the agency would include an
evaluation of risk within its evaluation of each factor and/or sub-factor. Id. The
solicitation defined “risk” as “any aspect of an Offeror’s proposal that could have
significant negative consequences for the Government.” Id.
Upon completing its evaluation, the government would award the contract to “the
responsible Offeror whose offer . . . provide[d] the overall best value to the Government,
when all evaluation factors [we]re considered.” Id. at 1437. The first factor, Business
Management, would be considered the most important. Id. at 1438. The second and third
factors, Coverage and Capacity and Products and Architecture, would be given equal
importance. Id. Together, the first three factors would be more important than the fifth
factor, Value Proposition Assessment. Id. Finally, Value Proposition Assessment would
be more important than Past Performance. Id.
Further, “[d]ue to the unique nature of FirstNet and the NPSBN,” the government
planned to conduct a trade-off analysis that “utilize[d] the results of [the] value
proposition assessment . . . and non-price factors to determine the overall best value
solution,” rather than a “traditional trade-off analysis where the Government [would]
consider[] price and non-price factors.” Id. at 1437 (emphasis omitted). The government
also “reserve[d] the right to remove an Offeror’s proposed solution from further
consideration” if the government determined that the proposal was “unacceptable in any
of the evaluation factors and/or sub-factors.” Id. at 1438. The solicitation did not include
a statement that the agency intended to make an award without discussions. As addressed
6
“IOC” stands for “Initial Operational Capability,” defined as “the state achieved when a
capability is available in its minimum usefully deployable form.” AR Tab 30 at 934.
“FOC” stands for “Final Operational Capability,” meaning that “the activity has reached
full maturity with all users able to exercise all intended capabilities.” Id. at 932. The
agency’s target milestones put FOC for the network at sixty months (i.e., five years) from
the date of award. See id. at 1335–38.
7
in more detail below, however, it did state that individual offerors might be eliminated
without discussions under certain conditions. See id. at 1435.
IV. Proposal Evaluation
After issuing the solicitation, the government received capability statements from
[ . . . ] potential offerors. See id. Tab 70 at 10391. On April 11, 2016, the agency
determined that [ . . . ] of the potential offerors, including Rivada and AT&T, were viable
competitors for the award. See id. The agency then provided written feedback and held
face-to-face feedback sessions with each viable offeror. See id. Following those sessions,
Rivada and AT&T submitted their complete proposals on May 31, 2016. See id.; see also
id. Tab 52 (Rivada’s proposal); id. Tab 53 (AT&T’s proposal).
Soon after Rivada submitted its proposal, the agency began to send it written
questions requesting clarifications. See id. Tabs 58, 63. Rivada’s and AT&T’s proposals
passed phases two and three of the evaluation, and the government began the detailed
evaluation. See id. Tab 70 at 10391. To that end, it convened a Source Selection
Evaluation Board (SSEB) to evaluate the proposals’ technical merits. See id. Tabs 65–68.
It also elected to conduct oral presentations with the remaining offerors. Id. Tab 74 at
10441; see also id. Tabs 55–57.
Rivada’s oral presentation took place on July 11, 2016. See id. Tab 74 at 10441.
The presentation included a question and answer (Q&A) session. See id.; see also id. Tab
56. Before the presentation, the government explained that the presentation would “not be
evaluated separately” from Rivada’s proposal. Id. Tab 74 at 10441 (emphasis omitted).
Rather, “the information obtained during the session [would] be used as part of the
overall evaluation.” Id. According to Rivada, its presentation and Q&A session lasted
approximately seven hours. Pl.’s Mem. in Supp. of Pl.’s Mot. for J. on the Admin. R.
(Pl.’s Mem.) at 13, ECF No. 46-2.
The government sought additional written clarifications in the wake of Rivada’s
oral presentation. See AR Tab 58. It similarly requested clarifications from AT&T, both
before and after its oral presentation.7 See id. Tabs 62, 64.
The SSEB ultimately produced several reports documenting its conclusions,
including a Past Performance report; a Small Business Subcontracting Plan report; and,
for each individual offeror, a Business Management Evaluation, a Technical Evaluation,
a Pricing Evaluation, and a Preliminary Responsibility Assessment. See id. Tabs 65–68.
7
To the extent the contents of these questions are relevant to the Court’s decision, they
are discussed in more detail below.
8
V. The Agency’s Competitive Range Determination
On October 17, 2016, the agency’s Source Selection Authority (SSA) eliminated
Rivada from consideration and “enter[ed] into a competitive range of one” with AT&T.8
Id. Tab 70 at 10389–90. The SSA’s reasoning is discussed below.
A. Rivada’s Proposal
The SSA first discussed the SSEB’s conclusions regarding the “strengths,
weaknesses, significant weaknesses[,] and deficiencies” of Rivada’s proposal. Id. at
10393. As strengths, the SSA noted that Rivada’s “proposed ‘members’ are industry
leaders with substantial experience in their respective areas, including wireless
infrastructure and public safety.” Id. at 10394. Further, Rivada proposed a “purpose-built,
public safety focused network which offers a low market-entry price-point,” which
“could encourage adoption and use of the NPSBN.” Id.
On the other hand, the SSA identified numerous deficiencies and weaknesses in
Rivada’s proposal. Id. at 10394–96. The first set of deficiencies related to “Rivada’s lack
of financial stability, capacity, and required funding.” Id. at 10394. The SSA noted that
Rivada’s proposal depended on “substantial third-party funding” to augment the funding
provided by the government. Id. He determined, however, that Rivada “did not provide
acceptable evidence demonstrating that it could obtain” such funding. Id. Further, the
SSA explained that “Rivada’s proposed strategy [wa]s risky” because it “utilized
aggressive business assumptions” to account for “the [ . . . ] [it would need] to fulfill its
business plan.” Id.
A related deficiency concerned Rivada’s “proposed wholesale marketplace for
excess spectrum capacity.” Id. The SSA noted that Rivada’s plan “require[d] a robust[]
wholesale market in which customers w[ould] purchase FirstNet’s Band 14 excess
spectrum capacity.” Id. According to the SSA, the wholesale marketplace was one of two
components in Rivada’s plan to sell excess spectrum capacity. Id. The other involved
[ . . . ]. Id. Assessing both components, the SSA determined that Rivada “did not
adequately demonstrate that its proposed wholesale marketplace or [ . . . ] would be
adopted by potential customers,” creating “a significant risk of unsuccessful
performance.” Id.
Further, the SSA observed that “[b]efore wholesale customers are able to
purchase excess spectrum capacity, Rivada must ensure [that] there are a sufficient
number of end-user devices that can operate on Band 14.” Id. at 10395. But because
[ . . . ]. Id. In the SSA’s view, this shortcoming “w[ould] negatively impact user
8
The memorandum setting forth the basis for this decision was apparently drafted by the
Chair of the SSEB and adopted by the SSA. See AR Tab 70 at 10388, 10408. For clarity,
the Court discusses this memorandum as if written by the SSA.
9
adoption,” creating a risk because without “[ . . . ], [Rivada] w[ould] not be able to sell
sufficient spectrum capacity . . . to . . . meet its obligations to the Government.” Id.
Relatedly, the SSA determined that Rivada had also “overstate[d] [its] device
connection targets by [ . . . ].” Id. Rivada’s proposal “count[ed] anyone accessing the
FirstNet applications store as a device connection, even if that user is not a subscriber to
the NPSBN.” Id. According to the SSA, though, such [ . . . ] did not meet the
solicitation’s definition of a “device connection.” See id. Thus, Rivada’s “proposed
solution may over-count the actual number of device connections,” creating a further risk
of insufficient revenue. See id.
Beyond these financial concerns, the SSA also identified additional significant
weaknesses stemming from Rivada’s “lack of executed agreements with the proposed
members of the Rivada team for their respective scopes of work in the construction and
operation of the NPSBN.” Id. Absent executed agreements, the SSA noted that “formal
commitments by Rivada’s partners must be established post-award, and FirstNet would
have to take on faith that Rivada [would be] able to reach final agreement[s] with its
partners in a timely manner and without impacting the NPSBN program or timeline.” Id.
The SSA expressed particular concern with Rivada’s lack of an executed agreement with
[ . . . ]. Id. Under Rivada’s proposal, [ . . . ].9 Id.; see also id. Tab 67 at 10054–55.
Without this agreement in place, the SSEB could not assess Rivada’s plans to provide
network capacity during that period. See id. Tab 67 at 10054–55.
The SSA also found that Rivada’s proposed pricing structure for payments from
FirstNet to Rivada was “risky.” Id. Tab 70 at 10394. He noted that Rivada had proposed
immediate payments from FirstNet of [ . . . ] for the first two Day 1 Task Orders
(Delivery Mechanisms for State Plans and State Plan Development Task Orders). Id.
According to the SSA, these payments were “materially overstated compared to
FirstNet’s Independent Government Cost Estimate (IGCE).” Id.
Based on the evaluation, Rivada’s proposal merited the following adjectival
ratings:
Factor/Subfactor Rating
Business Management Unacceptable
General Unacceptable
Leadership and Program Management Unacceptable
Public Safety Customer Acquisition Unacceptable
Customer Care and Life-Cycle Sustainment Acceptable
Offeror’s Financial Sustainability Unacceptable
Delivery Mechanism for State Plans Acceptable
9
[ . . . ].
10
Quality Assurance Surveillance Plan Unacceptable
Deliverables Table Acceptable
Coverage and Capacity Acceptable
Coverage and Capacity Maps and Statistics Exceptional
RAN Strategy and Solutions Acceptable
IOC Milestones for Coverage and Capacity Acceptable
Products and Architecture Unacceptable
Services Acceptable
Applications Acceptable
Device Ecosystem Unacceptable
Architecture and Infrastructure Unacceptable
Operations Unacceptable
Security Unacceptable
Test Strategy Unacceptable
Past Performance Acceptable
Id. at 10396, 10404. The SSA noted that “[a]lthough the number of strengths,
weaknesses, and/or deficiencies [was] not controlling, Rivada’s proposed approach
contain[ed] deficiencies and/or [a] combination of significant weaknesses that, if
accepted, would introduce excessive, increased risk,” making successful performance
“highly unlikely.” Id. at 10396.
Moving to the Value Proposition Assessment, the SSA observed that Rivada’s
proposed payments to FirstNet had “a Net Present Value (NPV) of [ . . . ] ([ . . . ] of
undiscounted cash flows) over the 25-year contract period,” and that it “forecasted [ . . . ]
of total revenues over 25 years”—“ [ . . . ] generated from public safety users and [ . . . ]
from the sale of excess network capacity via a wholesale business model.” Id.
Based on the evaluation detailed above, however, the SSA “concluded that
Rivada’s business model contains inherent risks that could negatively impact its financial
sustainability.” Id. These included Rivada’s “need to secure substantial third-party
financing” and its “dependence on Band 14 device adoption, which it did not demonstrate
it could secure.” Id.
Further, the SSA found that “certain cost elements” in Rivada’s proposal were not
reasonable. Id. at 10397. In particular, the SSA observed that “Rivada’s proposed
‘Payments to Contractor’ amounts . . . [we]re materially overstated for [ . . . ] relative to
expected costs.” Id.
11
B. AT&T’s Proposal
According to the SSA, AT&T’s proposal had “substantial strengths . . . as well as
some weaknesses and deficiencies.” Id. at 10401. Among other strengths, the SSA noted
AT&T’s “significant experience building and operating nationwide wireless systems
and . . . commercializing spectrum capacity.” Id. Further, AT&T’s “existing position as a
commercial wireless service provider” meant that it would “be able to construct, operate,
and maintain the NPSBN [ . . . ], serve public safety users, commercialize the excess
spectrum capacity, and make the required [p]ayments to FirstNet.” Id.
In addition, the SSA found that AT&T’s “solution of [ . . . ].” Id. It could achieve
this “in part . . . by leveraging its extensive relationships with device manufacturers and
its subscriber base of 130 million customers to ensure the manufacture of Band 14
compatible devices.” Id.
On the other hand, weaknesses in AT&T’s proposal included (among other
things) AT&T’s failure to “provide evidence of executed teaming arrangements with core
subcontractors” and the fact that its “overall proposed adoption targets [we]re low, as [it]
propose[d] a penetration rate of [ . . . ] of the addressable market for extended primary
public safety users.” Id. at 10402.
Based on the evaluation, AT&T’s proposal garnered the following adjectival
ratings:
Factor/Subfactor Rating
Business Management Acceptable
General Exceptional
Leadership and Program Management Acceptable
Public Safety Customer Acquisition Highly Acceptable
Customer Care and Life-Cycle Sustainment Exceptional
Offeror’s Financial Sustainability Exceptional
Delivery Mechanism for State Plans Highly Acceptable
Quality Assurance Surveillance Plan Unacceptable
Deliverables Table Acceptable
Coverage and Capacity Acceptable
Coverage and Capacity Maps and Statistics Highly Acceptable
RAN Strategy and Solutions Acceptable
IOC Milestones for Coverage and Capacity Acceptable
12
Products and Architecture Acceptable
Services Acceptable
Applications Acceptable
Device Ecosystem Highly Acceptable
Architecture and Infrastructure Acceptable
Operations Unacceptable
Security Acceptable
Test Strategy Acceptable
Past Performance Highly Acceptable
Id. at 10402, 10404. Overall, the SSA determined that “there [was] a reasonable
probability of success and little risk that AT&T’s proposed solution would fail to meet
the [solicitation’s] quantity, quality, and schedule objectives.” Id. at 10402.
Turning to the Value Proposition Assessment, the SSA noted that, with respect to
cash flow, AT&T proposed payments “with a NPV of[ . . . ] ([ . . . ] of undiscounted cash
flows) over the 25-year contract period”—substantially [ . . . ] than the payments
proposed by Rivada. Id. at 10403. AT&T also “estimated public safety revenue at [ . . . ]”
over the life of the contract. Id. Unlike Rivada, AT&T did not estimate how much
revenue it would generate by selling excess spectrum capacity. See id. The SSA
observed, however, that the government’s pricing evaluation team estimated that
spectrum sales would likely generate between [ . . . ] and [ . . . ], “with a middle case of
[ . . . ].” Id. Further, the pricing team “found AT&T’s cost projections reasonable.” Id.
The SSA also concluded that “AT&T’s business model contain[ed] minimal risks
that could negatively impact or harm FirstNet and the NPSBN’s financial sustainability.”
Id. On the other hand, the SSA identified “several significant areas where AT&T’s
proposal had unbalanced pricing and/or increased risk to FirstNet.” Id. Among these was
the fact that AT&T proposed to extend Band 14 coverage to [ . . . ].10 Id.
C. The SSA’s Conclusion
Based on its evaluation, the SSA established a competitive range containing only
AT&T’s proposal. See id. at 10407. He observed that “[a]lthough each Offeror’s
proposed solution contain[ed] unacceptable ratings[] at the subfactor level, only
AT&T[’s] is considered acceptable (or higher) across all factors.” Id. at 10405. Further,
he noted that “[a]lthough AT&T’s proposed solution contain[ed] a few significant
weakness and deficiencies, none of them would introduce excessive, increased risk that
would result in unsuccessful performance.” Id. at 10406. Those weaknesses “would
10
The manner in which the SSA arrived at this figure is the subject of one of Rivada’s
claims of error, and is discussed in more detail below.
13
potentially only require minor corrections to AT&T’s proposed solution,” which could be
accomplished through discussions. Id.
By contrast, the SSA found that the “substantial number of significant weaknesses
and deficiencies” in Rivada’s proposal “introduce[d] excessive, increased risks” that
might “result[] in [its] inability to perform.” Id. Addressing these weaknesses would, in
the SSA’s view, “essentially require a complete revision of [Rivada’s] business model[].”
Id. For example, Rivada “would have to identify and secure additional debt to proceed,”
and, “[i]n many cases, the Government would require [Rivada’s] teaming agreements,
some completely nascent, to be finalized.” Id. Thus, conducting discussions with Rivada
would be “costly and time consuming, and would place a financial and scheduling burden
on both the Government and all Offerors.” Id. And “[e]ven with substantial changes to
[its] proposal[] . . . Rivada[’s offer] would not be considered among the most highly rated
offers.” Id. Accordingly, the SSA eliminated Rivada’s proposal from the competitive
range. Id. at 10407.
D. Debriefing and Request for Reconsideration
The contracting officer (CO) informed Rivada of the agency’s decision on
October 17, 2016. Id. Tab 71 at 10409. The CO noted that “[a]s stated in the solicitation,
the competitive range [would consist] of the most highly rated proposals and those
Offerors whose proposals have a reasonable chance of being selected for award.” Id.
Rivada’s proposal, however, was “not among the most highly rated proposals.” Id. Thus,
the CO “excluded [Rivada’s] proposal from the competitive range and [would] no longer
consider[] it for award.” Id.
Rivada requested debriefing on October 19, 2016. Id. Tab 73 at 10429. Two days
later, the CO conducted the debriefing by letter. Id. Tab 74. Rivada then requested
reconsideration, which the CO denied. See id. Tab 75 at 10600–02.
VI. This Action
Rivada filed its complaint in this Court on November 21, 2016. ECF No. 1. It
alleged that the government committed a variety of errors in the evaluation and the
competitive range decision. These included (1) improperly holding discussions with the
offerors before establishing the competitive range, and failing to conduct those
discussions in accordance with law, see Compl. ¶¶ 5–8; (2) failing to consider important
aspects of Rivada’s proposal with respect to the Business Management factor, and, as a
consequence, erring in its Value Proposition Assessment, id. ¶¶ 9–10; (3) “applying
unstated evaluation criteria, making unwarranted assumptions, misreading [Rivada’s]
proposal, or arbitrarily increasing the risk associated with a particular concern,” id. ¶ 11;
and (4) “ignor[ing] aspects” of its proposal and otherwise evaluating its proposal in a
manner “inconsistent with the [RFP’s] evaluation scheme,” id. ¶ 12.
Based on these alleged errors, Rivada asked the Court to declare that its exclusion
from the competitive range was arbitrary, capricious, and contrary to law and to issue an
injunction barring the government from awarding the contract without “including
14
Rivada . . . in the competitive range, conducting discussions with Rivada . . . and
evaluating [its proposal] in accordance with the Solicitation.” Id. at 43.
AT&T intervened in the case, ECF Nos. 13, 20, and the government compiled and
submitted an extensive administrative record, see ECF Nos. 29, 37. The parties have filed
lengthy cross-motions for judgment on the administrative record. ECF Nos. 46, 55–56.
The Court heard oral argument on the cross-motions on March 3, 2017. See Order, ECF
No. 71.
DISCUSSION
I. Jurisdiction
The Court of Federal Claims has “jurisdiction to render judgment on an action by
an interested party objecting to . . . a proposed award or the award of a contract or any
alleged violation of statute or regulation in connection with a procurement or a proposed
procurement.” 28 U.S.C. § 1491(b)(1) (2012). A party is an “interested party” with
standing to bring suit under 28 U.S.C. § 1491(b)(1) if the party “is an actual or
prospective bidder whose direct economic interest would be affected by the award of the
contract.” Orion Tech., Inc. v. United States, 704 F.3d 1344, 1348 (Fed. Cir. 2013). A
bidder’s direct economic interest would be affected by the contract award if, as a result of
the alleged errors in the procurement, the bidder suffered a competitive injury or
prejudice. Myers Investigative & Sec. Servs., Inc. v. United States, 275 F.3d 1366, 1370
(Fed. Cir. 2002) (holding that “prejudice (or injury) is a necessary element of standing”);
see also Linc Gov’t Servs., LLC v. United States, 96 Fed. Cl. 672, 694–95 (2010) (to
determine standing, the court assesses “the impact that the alleged procurement errors
had on a plaintiff’s prospects for award, taking the allegations as true”).
In a pre-award, post-evaluation protest, the protester meets this standard if, absent
the alleged errors in the procurmenet, it would have a “substantial chance” of receiving
the award; that is, if the protester “could have likely competed for the contract” but for
the alleged errors. Orion Tech., 704 F.3d at 1348–49. Rivada claims that absent the errors
it alleges, its proposal would have been eligible for inclusion in the competitive range and
thus that it could likely have competed for the contract. Neither the government nor
AT&T appears to challenge Rivada’s standing, and the Court agrees that Rivada’s
allegations are sufficient to confer such standing upon it.
II. Standard of Review
A. General Standard in Bid Protest Cases
The Court reviews challenges to procurement decisions under the same standards
used to evaluate agency actions under the Administrative Procedure Act, 5 U.S.C. § 706.
See 28 U.S.C. § 1491(b)(4) (stating that “[i]n any action under this subsection, the courts
shall review the agency’s decision pursuant to the standards set forth in section 706 of
title 5”). Thus, to successfully challenge a procurement decision, a plaintiff must show
that the agency’s decision was “arbitrary, capricious, an abuse of discretion, or otherwise
15
not in accordance with law.” 5 U.S.C. § 706(2)(A); see also Bannum, Inc. v. United
States, 404 F.3d 1346, 1351 (Fed. Cir. 2005).
This “highly deferential” standard of review “requires a reviewing court to sustain
an agency action evincing rational reasoning and consideration of relevant factors.”
Advanced Data Concepts, Inc. v. United States, 216 F.3d 1054, 1058 (Fed. Cir. 2000)
(citing Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285
(1974)). Thus, the Court cannot substitute its judgment for that of the agency. See
Honeywell, Inc. v. United States, 870 F.2d 644, 648 (Fed. Cir. 1989) (holding that as
long as there is “a reasonable basis for the agency’s action, the court should stay its hand
even though it might, as an original proposition, have reached a different conclusion”
(quoting M. Steinthal & Co. v. Seamans, 455 F.2d 1289, 1301 (D.C. Cir. 1971))); see
also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (court should review agency action to determine if the agency has “examine[d] the
relevant data and articulate[d] a satisfactory explanation for its action”). Although “the
ultimate standard of review is a narrow one,” the court’s “inquiry into the facts is to be
searching and careful.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
416 (1971).
B. Standard Applicable to a Contracting Officer’s Decision to Establish
a Competitive Range of One
Under the FAR, an agency must establish a competitive range “if discussions are
to be conducted” during a procurement, and the competitive range must be “comprised of
all of the most highly rated proposals.” FAR 15.306(c)(1). It is well established that the
contracting officer has “broad discretion in evaluating proposals and determining which,
if any, fall into the competitive range.” W & D Ships Deck Works, Inc. v. United States,
39 Fed. Cl. 638, 642–43 (1997) (citing Birch & Davis Int’l, Inc. v. Christopher, 4 F.3d
970, 973 (Fed. Cir. 1993)); see also Red River Comput. Co. v. United States, 120 Fed. Cl.
227, 239 (2015); Impresa Construzioni Geom. Domenico Garufi v. United States, 44 Fed.
Cl. 540, 554–55 (1999), aff’d in relevant part, 238 F.3d 1324, 1340 (Fed. Cir. 2001);
Rockwell Int’l Corp. v. United States, 4 Cl. Ct. 1, 3 (1983).
In Birch & Davis International, however, under the then-applicable regulations
governing competitive range determinations, the Federal Circuit affirmed the use of a
“close scrutiny” standard to review an agency’s decision to establish a competitive range
of one. See 4 F.3d at 973–74 (discussing the former regulation, FAR 15.609(a), which
provided that “[t]he competitive range . . . shall include all proposals that have a
reasonable chance of being selected for award” and that “[w]hen there is doubt as to
whether a proposal is in the competitive range, the proposal should be included”
(omission in original)). The competitive range regulation, however, has since been
revised. It now gives the agency more flexibility to exclude offerors from the competitive
range. See FAR 15.306(c) (“[T]he contracting officer shall establish a competitive range
comprised of all of the most highly rated proposals . . . .”). Further, it does not contain
any language that gives the benefit of the doubt to an offeror as to whether its proposal
should be in the competitive range. See Federal Acquisition Regulation; Part 15 Rewrite;
Contracting by Negotiation and Competitive Range Determination, 62 Fed. Reg. 51,224,
16
51,226 (Sept. 30, 1997) (explaining that following the revision, the government would no
longer have to “[r]etain[] marginal offers in the range,” as doing so “impose[d]
additional, and largely futile, effort and cost on both the Government and industry”).
Nevertheless, courts have occasionally applied the “close scrutiny” standard in
cases arising after the FAR revision. See, e.g., L-3 Commc’ns EOTech, Inc. v. United
States, 83 Fed. Cl. 643, 650–51 (2008); Chapman Law Firm Co. v. United States, 71 Fed.
Cl. 124, 132 (2006), aff’d in relevant part sub nom Chapman Law Firm. Co. v. Greenleaf
Constr. Co., 490 F.3d 934 (Fed. Cir. 2007). These courts, however, have not addressed
the significance of the change in the regulatory language. See L-3 Commc’ns EOTech,
83 Fed. Cl. at 650–51; Chapman Law Firm, 71 Fed. Cl. at 132; but see Sys. Dynamics
Int’l, Inc. v. United States, No. 16-710C, 2017 WL 495553, at *12–13 (Fed. Cl. Feb. 7,
2017) (declining to apply close scrutiny in light of the regulatory change).
The government argues that because the court in Birch & Davis International
relied on the “reasonable chance of being selected” language found in the former
regulation, the FAR rewrite effectively abrogated the close scrutiny standard. Def.’s
Resp. in Opp’n to Pl.’s Mot. for J. Upon the Admin. R. & Cross-Mot. for J. on the
Admin. R. (Def.’s Resp.) at 16–17, ECF No. 55. The Court agrees that the change in the
regulatory language undermines the regulatory rationale for applying “close scrutiny” to
an agency decision establishing a competitive range of one. The Court notes, however,
that the revision did not affect the other underlying rationale that the Federal Circuit
articulated for applying heightened scrutiny—i.e., “[t]o promote the . . . policy favoring
competition while allowing contracting officers the full range of their discretion.” See
Birch & Davis Int’l, 4 F.3d at 974.
The Court nevertheless has concluded that it need not address the continuing
vitality of the “close scrutiny” standard in this case. For the reasons discussed below, the
agency’s decision to exclude Rivada from the competitive range was clearly a reasonable
one. Accordingly, whether a close scrutiny standard or a less rigorous standard of review
is applied, Rivada’s protest fails.
III. Merits
Rivada claims that the agency erred in two ways in its evaluation of the proposals.
First, it contends that despite the agency’s attempt to limit the scope of its early
exchanges with the offerors, it in fact permitted them to revise their offers during the
evaluation and thus entered into discussions before it formally established the
competitive range. See Pl.’s Mem. at 19. Further, in its view, those discussions were
misleading and not meaningful. See id. Second, it argues that the agency unreasonably
assigned numerous deficiencies and weaknesses to its proposal while often overlooking
equivalent flaws in AT&T’s proposal. See id. at 31–32.
The common thread stringing these arguments together is that the agency had an
unstated preference for awarding the contract to a large, established wireless carrier. See
Pl.’s Reply & Resp. to Def. & Def.-Intervenor’s Cross-Mots. for J. on the Admin. R.
(Pl.’s Reply) at 21, ECF No. 60. Thus, Rivada posits that the agency permitted AT&T to
17
revise its proposal during the pre-competitive range exchanges and assumed AT&T could
correct other deficiencies through discussions, while denying Rivada the same
opportunity. See Pl.’s Mem. at 22–24; Pl.’s Reply at 14–18. And it complains that the
agency applied various unstated evaluation criteria to its proposal; that those criteria
would have knocked out any proposal other than one submitted by a nationwide wireless
carrier; and that, based on its unstated preference, the agency unjustifiably treated
AT&T’s proposal more favorably than Rivada’s even when the proposals shared
substantially equivalent weaknesses. See Pl.’s Mem. at 36, 38–40, 42–47, 51–53; Pl.’s
Reply at 23–24, 26–28, 33–37, 41–42.
For the reasons discussed below, the Court concludes that Rivada’s arguments
lack merit. The pre-competitive range exchanges were not “discussions” because the
exchanges were reasonably limited in scope given the complexity of the procurement,
and because the agency neither intended to allow proposal revisions nor effectively
accepted revised proposals. Further, the agency assessed the proposals thoroughly and
evenhandedly against criteria set forth in the solicitation. Those criteria made clear that
minimizing the risk of non-performance was of tantamount importance to the agency—a
position that is fully justified by the crucial role the NPSBN will play in responding to
emergencies of national importance. Accordingly, the fact that the agency included only
AT&T’s proposal in the competitive range does not demonstrate that the government
applied an unstated preference for a large carrier; it merely reflects the agency’s
reasonable determination that Rivada’s proposal carried too much risk.
A. Whether the Agency Entered Into Discussions With the Offerors
Rivada’s first argument is that the government entered into discussions with the
offerors based on the exchanges and oral presentations it held with them before
establishing the competitive range. It further contends that those discussions did not
comport with the FAR because they were misleading and not meaningful. See Pl.’s Mem.
at 19–31. For the reasons set forth below, the Court finds Rivada’s contentions meritless.
1. Relevant FAR Provisions
FAR 15.306(d) defines discussions as negotiations that “take place after
establishment of the competitive range” and that “are undertaken with the intent of
allowing the offeror to revise its proposal.” Id. In conducting discussions, the CO
“must . . . indicate to, or discuss with, each offeror still being considered for award,
deficiencies, significant weaknesses, and adverse past performance information to which
the offeror has not yet had an opportunity to respond.” Id. § 15.306(d)(3). COs are also
“encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion
of the contracting officer, be altered or explained to enhance materially the proposal’s
potential for award.” Id.
By contrast, exchanges that occur before establishing the competitive range are
considered either “clarifications” under FAR 15.306(a) or “communications” under FAR
15.306(b). “Clarifications” are “limited exchanges” that the agency may engage in when
“award without discussions is contemplated.” Id. § 15.306(a)(1). They give an offeror
18
“the opportunity to clarify certain aspects of [its] proposal[] . . . or to resolve minor or
clerical errors.” Id. § 15.306(a)(2).
“Communications” are more elaborate exchanges that an agency may initiate with
“those offerors . . . whose exclusion from, or inclusion in, the competitive range is
uncertain.”11 Id. § 15.306(b)(1)(ii). Communications “[m]ay be conducted to enhance
[the] Government[’s] understanding of proposals; allow reasonable interpretation of the
proposal[s]; or facilitate the Government’s evaluation process.” Id. § 15.306(b)(2). They
may also “be considered in rating proposals for the purpose of establishing the
competitive range.” Id. They may not, however, “be used to cure proposal deficiencies or
material omissions, materially alter the technical or cost elements of the proposal, and/or
otherwise revise the proposal.” Id.
2. Application of FAR Definitions
In applying the definitions set forth in the FAR, “the ‘acid test for deciding
whether discussions have been held is whether it can be said that an offeror was provided
the opportunity to revise or modify its proposal.’” Davis Boat Works, Inc. v. United
States, 111 Fed. Cl. 342, 353 (2013) (quoting Linc Gov’t Servs., 96 Fed. Cl. at 717); see
also Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312, 1322 (Fed. Cir.
2003) (“[W]hen discussions are opened, bidders have the opportunity to revise their
proposals.”). Rivada contends that the exchanges that took place before the competitive
range was established in this case, including the oral presentations, amounted to
discussions because the exchanges were “extensive” and because, according to Rivada,
the agency “allowed the offerors to offer changes to their proposals.” See Pl.’s Mem. at
22. The Court finds Rivada’s arguments unpersuasive.
First, the extensive nature of the exchanges does not, in the Court’s view,
transform them into discussions. The procurement itself was complex and involved
technical matters. Indeed, the government’s acquisition plan described the procurement
as “unique” and “unprecedented.” AR Tab 28 at 678, 685. Further, the multi-phased
evaluation process clearly contemplated that the evaluation would include a series of
exchanges before the agency established a competitive range. Thus, the government
informed offerors that it would provide them with “feedback” when it evaluated their
capability statements in the procurement’s first phase, and that the feedback would
“identif[y] [the] strengths and/or weaknesses” noted in those statements. Id. Tab 30 at
1436. Further, as part of its detailed evaluation of the proposals, the government stated
that it might consider “oral presentations and/or technical demonstrations or other
11
Agencies also must engage in communications with “offerors whose past performance
information is the determining factor preventing them from being placed within the
competitive range,” in which case the communications must “address adverse past
performance information to which an offeror has not had a prior opportunity to respond.”
FAR 15.306(b)(1)(i).
19
discussions.”12 Id. at 1437. Therefore, given the unusual nature of the procurement, the
large volume of exchanges does not indicate that the agency engaged in discussions.13
Second, the exchanges were not intended to, and in fact did not provide the
offerors an opportunity to revise their proposals. Indeed, the record shows that the
agency’s intent—to which the Court grants weight in determining how the oral
presentations should be characterized—was to not accept revisions until after it
established a competitive range. Thus, when it requested information from the parties, the
government consistently disclaimed any intent to accept revised proposals. See, e.g., id.
Tab 63 at 9010, 9022, 9056, 9077, 9232, 9298, 9423; id. Tab 64 at 9671, 9734, 9797,
9920. The government’s internal communications also show that it sought to ensure that
the oral presentations would not stray beyond the bounds of communications under FAR
15.306(b) and into discussions. See id. Tab 63 at 9220–23 (email stating that the agency
“need[ed] to ensure that any documentation that [Rivada] submit[s]” in the course of the
12
Rivada argues that this reference to “other discussions” shows that the solicitation
“clearly contemplated that [the] oral presentations would be part of discussions.” See
Pl.’s Mem. at 21–22. The Court does not agree. Rivada’s argument depends upon the
Court finding that the agency used the phrase “other discussions” in this section of the
RFP in a technical, legal sense. But, as noted, the reference appears in a portion of the
solicitation describing the “detailed evaluation” phase of the procurement. See AR Tab
30 at 1437. In keeping with FAR 15.306(c), the solicitation then noted that “after
evaluating all proposals,” the government might establish a competitive range. Id. at
1457. Given the context in which it appears, the Court thus declines to read the reference
to “other discussions” as signifying that the agency intended that discussions within the
meaning of FAR 15.306(d) would occur in the context of any oral presentations or
technical demonstrations the agency might conduct during the evaluation process.
13
The cases Rivada cites on this point are readily distinguished. See Pl.’s Mem. at 21
(citing Info. Tech., 316 F.3d at 1316; DynCorp Int’l, LLC v. United States, 76 Fed. Cl.
528, 535 (2007), and Linc Gov’t Servs., 96 Fed. Cl. at 706). To begin with, those cases
all apparently involved clarifications under FAR 15.306(a), with the government
contemplating award without discussions, and not exchanges leading to the establishment
of a competitive range under FAR 15.306(b). See Info. Tech., 316 F.3d at 1316; Linc
Gov’t Servs., 96 Fed. Cl. at 715; DynCorp Int’l, 76 Fed. Cl. at 531–32. Relatedly, the
procurements at issue were in the mine run of ordinary procurement cases, and thus did
not present complex or unique issues. See Info. Tech., 316 F.3d at 1315 (Air Force
sought “professional services in support of its Space Warfare Center” for a one-year
period); Linc Gov’t Servs., 96 Fed. Cl. at 681–82 (U.S. Army sought civilian personnel to
gather human intelligence in Iraq); DynCorp Int’l, 76 Fed. Cl. at 531 (Air Force sought
maintenance service for T-38 aircraft at three bases).
20
oral presentation “does not amend, update, or revise their original proposal submission,”
and quoting FAR 15.306(b)).14
Further, as AT&T points out, language in the agency’s instructions regarding the
oral presentations closely tracked the language of FAR 15.306(b). See id. at 9216; id. Tab
64 at 9717 (informing the parties that “communications [would] be necessary in order to
enhance FirstNet’s understanding of the proposal[s], allow reasonable interpretation of
the proposed solution[s], and facilitate the evaluation process”; and that the
communications “may be considered in rating the proposal[s] for the purpose of
establishing the competitive range,” but would not “be used to cure proposal deficiencies
or material omissions, materially alter the technical or cost elements, impact the overall
value proposition of the proposal, and/or revise the proposal”). Thus, the agency clearly
did not intend to allow the offerors to revise their proposals through the exchanges and
oral communications that occurred during the detailed evaluation phase.
The content of the exchanges also shows that the agency used the exchanges only
in service of performing a baseline assessment of the proposals as received, against which
future, targeted revisions might occur. As the government points out, the vast majority of
the agency’s questions were straightforward requests for technical information about
ambiguities or gaps in the offerors’ proposals. See Def.’s Resp. at 31. Rivada, however,
points to isolated questions that asked the offerors to “talk about” certain aspects of their
proposals. See Pl.’s Mem. at 22 (citing AR Tab 58 at 8685, 8700, and AR Tab 62 at
8965, 8968). Despite this locution, the questions Rivada identifies all sought information
about the parties’ proposals as they existed. That is, the agency did not ask the offerors to
supply new information from outside the four corners of their proposals. See AR Tab 58
at 8685 (“[T]alk about the proposed sequence and timing . . . pursuant to Rivada’s
proposed Integrated Master Schedule[.]”); id. at 8700 (“Based on your proposed solution,
talk about . . . . :”); id. Tab 62 at 8965 (“Please talk about your current rationale . . . .”);
id. at 8968 (“[T]alk about AT&T’s proposed resource strategy . . . .”) (all emphasis
added).
Rivada also charges the agency with allowing AT&T to revise its proposal in
response to two questions related to its proposed Band 14 coverage. See Pl.’s Mem. at
22–23. It is apparent to the Court, however, that the agency asked these questions to
permit it to resolve an ambiguity in AT&T’s proposal about the geographic extent of
AT&T’s proposed network. See AR Tab 62 at 8936–37 (requesting a clarification
regarding how AT&T calculated the land area that would be covered by Band 14); id. at
8956 (noting a discrepancy between AT&T’s Band 14 map and its description of the
extent of its Band 14 coverage). Specifically, the ESRI and MapInfo files AT&T
submitted with its proposal showed that AT&T’s Band 14 coverage would extend to
14
The Court notes that due to an apparent continuity error in the administrative record,
the text of this email is found on pages 9220 and 9223 of Tab 63, while pages 9221 and
9222 appear to contain the text of an attachment.
21
[ . . . ]. See id. at 8936–38. In its technical response, however, AT&T stated that figure at
[ . . . ]. See id.
AT&T responses to the agency’s questions explained that the discrepancy resulted
from its inadvertent failure to account in its technical response for [ . . . ] that were
included in its maps. See id.; see also id. at 8956. Rivada contends that AT&T’s
responses “reflect[ed] changes to its proposal to add information it failed to include in its
proposal originally.” Pl.’s Mem. at 23 (emphasis omitted). But as the Federal Circuit has
observed, “[a]ny meaningful clarification . . . . require[s] the provision of information,”
and there is “no requirement” that the information provided “not be essential for
evaluation of the proposal.” Info. Tech., 316 F.3d at 1323; see also Office Depot, Inc. v.
United States, 95 Fed. Cl. 517, 543–44 (2010). Here, AT&T’s responses simply made
clear that the omission of the [ . . . ] from one part of its proposal caused the internal
inconsistency identified by the agency. The agency thus did not seek a proposal revision;
nor did AT&T provide one.15
Finally, Rivada claims that the agency also permitted it to revise its own proposal
before establishing the competitive range. Pl.’s Mem. at 24–25. Specifically, it contends
that the agency’s evaluators changed their initial determinations about two aspects of
Rivada’s proposal following its oral presentation: its proposed Local Control solution and
its proposed Public Safety Entity Home Page. See id. The record shows, however, that
the information Rivada provided clarified the intent of its original proposal, rather than
revising it. See AR Tab 56 at 2:10:13–2:11:25 (Rivada explaining during its oral
presentation that [ . . . ]); id. Tab 67 at 10113 (noting that Rivada’s oral presentation
clarified that it had proposed [ . . . ]).
Because the agency neither intended to accept proposal revisions nor permitted
the offerors to revise their proposals, its exchanges with the offerors did not amount to
15
Indeed, after receiving AT&T’s explanation, the SSEB evaluated AT&T under the
“Coverage and Capacity Maps and Statistics” subfactor using [ . . . ]. See AR Tab 68 at
10233 (noting that AT&T’s highly acceptable rating in that subfactor was “based on the
original [i.e., lower] data supplied in AT&T’s proposal submission”). Thus, the SSEB
found AT&T’s proposal “highly acceptable” under that subfactor even using a figure that
was less favorable to AT&T. See id. at 10226, 10233. In the competitive range
determination, on the other hand, the SSA mentioned the clarified figure, which included
[ . . . ], when discussing the risk presented by the total area covered by AT&T’s network.
See AR Tab 70 at 10403 (stating that AT&T “proposed to provide Band 14 coverage
[ . . . ]”). But because AT&T’s response merely clarified a discrepancy in its proposal, the
SSA’s reasoning did not rest on a change to AT&T’s proposal, but on information that
was in AT&T’s proposal from the start.
22
discussions. Accordingly, the Court concludes that the agency engaged only in
communications with the offerors, not discussions.16
B. Whether the Government Erred in Eliminating Rivada from the
Competitive Range
Rivada also argues that the agency erred in several ways when it eliminated
Rivada from the competitive range. As discussed below, each of Rivada’s arguments
lacks merit.
1. The Agency’s Evaluation of Rivada’s Plan to Monetize Excess
Capacity
Rivada first claims that the competitive range determination was flawed because
the government “unreasonably focused” on just one aspect of its plan to sell excess
spectrum capacity—namely, its [ . . . ]. Pl.’s Mem. at 34. As noted above, the SSA
concluded that Rivada’s plan to sell excess capacity “create[d] a significant risk of
unsuccessful performance under the contract.” AR Tab 70 at 10394. The SSA observed
that “[u]nder the Rivada model, Rivada requires a robust, wholesale market in which
customers will purchase FirstNet’s Band 14 excess spectrum capacity.” Id. Thus, if the
“wholesale marketplace, coupled with Rivada’s [ . . . ], fail[ed] to gain traction with
wholesale customers,” then “Rivada’s proposed business plan for the contract will fail.”
Id. In the SSA’s view, however, “Rivada’s proposal did not adequately demonstrate that
its proposed wholesale marketplace or [ . . . ] would be adopted by potential customers.”
Id. Thus, Rivada’s approach “create[d] a significant risk of unsuccessful performance
under the contract.” Id.
In reaching this conclusion, the SSA relied on the SSEB’s assessment of Rivada’s
proposal, in which the SSEB concluded that there was a significant risk that Rivada’s
wholesale revenue projections were too rosy, even leaving aside Rivada’s proposed
[ . . . ]. See id. Tab 67 at 10178–79 (observing that Rivada’s proposal relied on
questionable projections of [ . . . ] and [ . . . ]). Rivada does not challenge the
reasonableness of the SSEB’s assessment of risk with respect to its wholesale market
projections. Nor could it. In fact, the Price Evaluation Team determined that “Rivada
would need to capture approximately [ . . . ] of the wholesale market by [ . . . ] in order to
achieve its projected revenue from excess network capacity if the MVNO market (with
expected growth) served as Rivada’s only purchasers of excess network capacity.” Id. at
10181.
The record thus plainly contradicts Rivada’s argument that the SSA “ignored
Rivada’s proposed traditional wholesale approach entirely.” Pl.’s Reply at 21; see also
Pl.’s Mem. at 34–35. Rather, the SSA concluded that Rivada’s proposal was risky based
16
Because the Court has determined that the agency did not conduct discussions with the
offerors, it does not reach Rivada’s arguments that the discussions were misleading and
not meaningful.
23
on an express finding that its proposal “did not adequately demonstrate that its proposed
wholesale marketplace or [ . . . ] would be adopted by potential customers.”17 AR Tab 70
at 10394 (emphasis added).
Similarly, Rivada’s argument that the agency “interjected an unstated evaluation
criterion that no offeror could rely on the sale of excess capacity on the wholesale
market” mischaracterizes the SSA’s reasoning. The SSA merely found that the degree to
which Rivada’s proposal depended on projected (but questionable) wholesale market
sales presented a significant risk of unsuccessful performance. Nothing about that
reasoning suggests that the agency would have rejected out-of-hand a proposal that relied
on a more reasonable set of wholesale market projections, or a different mix of wholesale
market sales and other sources of revenue.
In sum, Rivada’s objections to the SSA’s risk determination with respect to its
plans to sell excess capacity are without merit.
2. The Agency’s Evaluation of Rivada’s Debt Financing Plan
Rivada also complains that the agency erred in identifying Rivada’s reliance on
substantial, unconfirmed debt financing as a deficiency in its proposal. As noted, the SSA
determined that, to successfully perform the contract, Rivada would need to “obtain
substantial third-party funding.” Id. He concluded, however, that Rivada “did not provide
acceptable evidence demonstrating that it could obtain” such financing. Id.
The SSA’s determination rested on the SSEB’s analysis of the financial
sustainability of Rivada’s proposed solution. See id. Tab 67 at 10070–76. In particular,
the SSEB assessed the “[d]etails of source funding or financing to support the NPSBN.”
Id. at 10072. Among other sources, Rivada “propose[d] to secure approximately [ . . . ].”
Id. To demonstrate its ability to secure that debt, Rivada “provided ‘highly confident’
letters from nine financial institutions.” Id.
According to the SSEB, these letters “represent[ed] the banks’ confidence in
[their] ability” to secure financing for Rivada. Id. But they also included numerous
conditions and caveats. In particular, the letters specified that the banks’ willingness to
provide the financing [ . . . ]. Id. Further, the SSEB observed that the letters stated that
[ . . . ]; noted that the banks [ . . . ]; and did not [ . . . ]. Id. In light of these conditions and
caveats, the SSEB determined that the letters, on their faces, did not constitute “an
acceptable commitment to provide financing for Rivada” under FAR 9.104-3(a), which
states that “[a]cceptable evidence normally consists of a commitment or explicit
arrangement[] that will be in existence at the time of contract award.” Id. at 10073.
17
Rivada’s argument that the SSEB report “provides no reason to question Rivada’s
proposal to utilize the traditional wholesale model” is similarly off base. See Pl.’s Reply
at 21. The SSEB expressly found that Rivada’s proposal relied on two assumptions that it
found questionable: that [ . . . ], and that [ . . . ]. See AR Tab 67 at 10178–79.
24
Further, the existence of the conditions concerned the SSEB because it found
reason to doubt that the banks would, in fact, be willing to lend money to Rivada once
they had completed their due diligence. Thus, the SSEB expected that “[p]otential lenders
m[ight] require [ . . . ] in order to reduce the risk associated with debt financing.” Id.
Rivada’s proposal, however, included [ . . . ]. Id.
Moreover, the SSEB believed that Rivada would “likely face significant
challenges in collateralizing the assets related to the NPSBN contract to obtain the
necessary financing” because the solicitation expressly “state[d] that NPSBN assets are
not to become subject to any mechanic’s or vendor’s lien” and required that FirstNet, not
the contractor, “remain the spectrum licensee post-award.” Id. These provisions would
“limit Rivada’s ability to offer the FirstNet contract as collateral, or otherwise offer to
transfer control of the network in order to support its ability to acquire acceptable
financial funding.” Id.
Rivada does not engage with the substance of these concerns. Rather, it posits
broadly that the agency “wrongly rejected Rivada’s ‘highly confident’ letters because
they were not ‘firm commitments’ to provide financing.” Pl.’s Mem. at 37. This misstates
the essential basis for the SSA’s conclusion, which was not that the presence of
conditions in the letters, standing alone, made Rivada’s proposal too risky. Rather, the
SSA was reasonably concerned that, based on Rivada’s financial situation and the
restrictions in the solicitation, there was an unacceptably high likelihood that the banks
might invoke those conditions, leaving Rivada without the financial capacity to even
begin performance on the contract. Had the highly confident letters been paired with
[ . . . ], for example, or if Rivada’s strategy for monetizing excess capacity were sound,
the agency may well have reached a different conclusion.
The Court is likewise unpersuaded by Rivada’s claim that the agency’s decision
amounted to the application of an unstated criterion effectively prohibiting any reliance
on debt financing. See id. at 38–39. As described, the agency’s conclusion rested on two
grounds: that Rivada would be unable to perform unless it obtained “substantial” debt
financing, and that it failed to provide acceptable evidence that it could obtain that
financing. AR Tab 70 at 10394. Had Rivada relied on debt financing to a lesser extent, or
had it demonstrated a higher likelihood of obtaining that financing, the agency might
have rated it differently. Rivada’s argument thus lacks merit.
3. The Agency’s Evaluation of Rivada’s Proposed Teaming and
Subcontracting Relationships
Rivada next contends that the agency erred by assigning it a significant weakness
based on its “lack of executed agreements with the proposed members of [its] team.” Pl.’s
Mem. at 40 (quoting AR Tab 70 at 10395). Specifically, the SSA observed that Rivada
“lack[ed] . . . executed agreements with the proposed members of the Rivada team for
their respective scopes of work in the construction and operation of the NPSBN.”
AR Tab 70 at 10395. Of particular importance, the SSA noted that “[a]lthough Rivada’s
solution identifie[d] the use of [ . . . ], it d[id] not have an executed agreement in place to
support this strategy.” Id. According to the SSA, because “the formal commitments by
25
Rivada’s partners” would not be in place until after the award, the agency “would have to
take on faith that Rivada [would be] able to reach final agreement with its partners in a
timely manner and without impacting the NPSBN program or timeline.” Id.
Rivada’s primary argument on this point—that the SSA wrongly imposed a
“requirement” that Rivada have in place “executed subcontracts” pre-award—
oversimplifies the agency’s basis for assigning it this significant weakness. The SSEB
report (on which the SSA relied) shows that the agency viewed Rivada’s lack of executed
subcontracts as but one symptom of an underlying problem: that Rivada’s “proposed
teaming agreements . . . fail[ed] to demonstrate any incentives or negative consequences
in order to ensure the operation of the company to successfully build, deploy, and
maintain the NPSBN.” Id. Tab 67 at 10053–54.
Thus, of the five members of Rivada Mercury, LLC, [ . . . ]. Id. at 10054. Based
on this lack of accountability, the SSEB concluded that [ . . . ]. Id. These concerns relate
not to subcontracts that Rivada might eventually execute with the teaming members, but
to the nature of the teaming agreements themselves. Had the teaming agreements bound
the partners to one another and to the project in a more meaningful fashion, the agency
might have had more confidence in the contributions each teaming member would make
to the NPSBN’s success.
The SSEB expressed similar qualms about Rivada’s arrangement with [ . . . ]. See
id. at 10055. Thus, it found that Rivada’s “proposal indicated a stronger and more
pervasive relationship [ . . . ] than appear[ed] to be actually provided in the [ . . . ]
teaming agreement or Rivada’s response to clarification questions regarding th[e]
relationship.” Id. For example, while Rivada represented in its proposal that it was
“[w]orking with [ . . . ],” Rivada’s teaming agreement with [ . . . ] was [ . . . ]. Id. (internal
quotation omitted). Further, although the proposal stated that “[ . . . ] . . . will facilitate the
seamless adoption of the NPSBN by [ . . . ]’s customers,” the SSEB determined that there
was, in fact, [ . . . ]. Id. Given the crucial role [ . . . ] would play during the build-out
phase, the SSA’s decision to assign Rivada a significant weakness based on [ . . . ]’s lack
of an obligation was clearly justified.18
18
Relatedly, Rivada contends that the agency erred by assigning it a weakness for failing
to ensure that public safety users would [ . . . ] while overlooking a similar failure in
AT&T’s proposal. Pl.’s Mem. at 51–53. This argument also lacks merit. Under Rivada’s
proposal, the government could not be assured that [ . . . ]. See AR Tab 67 at 10068.
Under AT&T’s proposal, by contrast, most users would [ . . . ]. See id. Tab 68 at 10234
(noting that FirstNet users would [ . . . ]); id. Tab 59 at 8895 (noting that [ . . . ]”).
Further, [ . . . ], which would [ . . . ]. See id. Tab 68 at 10227. Finally, the agency in fact
assigned AT&T a significant weakness based on its failure to [ . . . ] for areas [ . . . ],
which AT&T did not propose to [ . . . ]. See id. at 10238 (observing that [ . . . ] and that
[ . . . ]). Rivada’s objection thus glosses over the agency’s nuanced assessment of the
strengths and weaknesses in AT&T’s proposal when it came to [ . . . ].
26
Further, Rivada’s contention that it received unequal treatment with respect to
teaming agreements and subcontracts is entirely without merit. The government and
AT&T both acknowledge that AT&T’s proposal did not include [ . . . ], and that the SSA
viewed this as a weakness. See Def.’s Resp. at 48; Mem. of Points & Authorities in Supp.
of Def.-Intervenor AT&T Corp.’s Cross-Mot. for J. on the Admin R. at 45, ECF No. 56-
1; see also AR Tab 70 at 10402. Thus, the agency’s treatment of this aspect of the
proposals did not differ in kind, but only in the degree of the weakness assigned. See Sci.
Applications Int’l Corp. v. United States, 108 Fed. Cl. 235, 273 (2012) (“Whether a
concern is considered a Significant Weakness or a Weakness is well within the
[agency’s] discretion.”).
Perhaps more importantly, the agency determined that AT&T “ha[d] the past
performance to support its ability to partner with and successfully complete its awarded
projects.” AR Tab 70 at 10402. Rivada, on the other hand, “possesse[d] few capabilities,
staff, or financial resources”; “d[id] not itself have material experience in . . . building
and operating a nationwide wireless network”; and lacked any experience in “supervising
a project of the size and scope of the NPSBN.” Id. Tab 74 at 10446. It was therefore
heavily reliant upon subcontractors “for virtually every material aspect of meeting its
obligations under the contract.” Id. Tab 52 at 5982.
Thus, to successfully complete performance, Rivada would need to enter into
hundreds of subcontracts to complete the work it could not perform itself; but it lacked
relevant experience managing subcontractors in ordinary settings, let alone in completing
projects of this size and complexity. By contrast, because of its own capabilities, AT&T
would need to enter fewer subcontracts; at the same time, it already had deep experience
managing subcontractors in large-scale projects. Given this disparity, it was reasonable
for the government to conclude that AT&T’s lack of executed subcontracts posed less of
a risk to the NPSBN’s success than Rivada’s facially similar deficiency.
4. The Agency’s Evaluation of Rivada’s Band 14 Device Portfolio and its
Effect on Rivada’s Financial Model
Rivada also contends that the agency erred in determining that Rivada “did not
sufficiently demonstrate a plan to ensure [the] availability of Band 14 devices.” Id. Tab
70 at 10395; see also Pl.’s Mem. at 45–47. According to the SSA, Rivada [ . . . ]. AR Tab
70 at 10395. As a result, “public safety users [and] wholesale customers would [ . . . ],
which would “negatively impact user adoption.” Id. Further, the SSA determined that
“convincing device manufacturers to build devices that will operate on Band 14[] will
require significant time, expense, and effort.” Id. And because the availability of Band 14
devices was “critical to the success of [Rivada’s] proposed solution,” the SSA concluded
that Rivada “w[ould] not be able to sell sufficient spectrum capacity in order to fulfill the
requirements of its business plan” if it proved “unable to obtain the necessary Band 14
devices.” Id.
The SSA’s conclusions reflected shortcomings identified by the SSEB. Thus, the
SSEB noted that Rivada’s proposal specified only [ . . . ]; that the proposed devices
[ . . . ]; and that the devices [ . . . ]. Id. Tab 67 at 10051. Based on these facts, the SSEB
27
concluded that Rivada “failed to demonstrate its ability to drive substantial subscribership
and user adoption,” and that it had not shown an “ability to meet the objective pertaining
to speed to market.” Id.
According to Rivada, the agency “ignored the demand side of the equation” in
reaching these conclusions. Pl.’s Mem. at 46. In its view, “[t]he primary determinant of
whether a device manufacturer will include the capability for a particular spectrum on its
consumer devices is whether there is demand in the consumer marketplace for devices
with that capability.” Id. But the agency did not ignore demand; it concluded that
Rivada’s device portfolio would suppress demand. The Court finds no reason to disturb
this conclusion.
As with its other arguments, Rivada also claims that the agency improperly
evaluated AT&T’s device portfolio more favorably than its own. Id. at 46–47. But the
differences between the proposals are readily apparent. First, because AT&T planned to
initially support FirstNet services [ . . . ], FirstNet would immediately “have access to
AT&T’s [ . . . ].” AR Tab 68 at 10210. The SSEB believed this head start would “help[]
to drive early adoption” of the NPSBN. Id. Further, AT&T represented that it was [ . . . ].
Id. This would give customers reason to purchase devices with Band 14 capability before
the actual rollout of the Band 14 network. See id.
AT&T also pledged that, after deployment of the Band 14 network began, it
would “certify [ . . . ] new Band 14 public safety devices per [ . . . ],” and would ensure
that at [ . . . ] Band 14 device was [ . . . ]. Id. at 10209–10. Finally, AT&T stated that it
would [ . . . ]. Id. at 10210. The SSEB concluded that AT&T’s “existing relationships”
with the OEMs “mitigate[d] the risk that Band 14 w[ould] not be available in consumer
mass-market devices in a timely fashion.” Id.
Rivada criticizes the agency for “simply assum[ing]” that AT&T could use its
existing relationships to “force device manufacturers to include Band 14 capability in
new devices.” Pl.’s Reply at 36; see also Pl.’s Mem. at 46–47. That was not the agency’s
conclusion. Rather, the agency judged that AT&T would successfully “drive early
adoption” and thus stoke demand for Band 14 devices, which would in turn incentivize
manufacturers to produce them. AR Tab 68 at 10210. Using its existing relationships to
“mitigate[] the risk” that Band 14 devices would not be available “in a timely fashion”
was one portion of AT&T’s larger plan. Id. Rivada, on the other hand, “failed to
demonstrate its ability to drive substantial subscribership and user adoption” and did not
show an “ability to meet the objective pertaining to speed to market.” Id. Tab 67 at
10051. The agency thus did not treat the proposals unequally. See A-T Sols., Inc. v.
United States, 122 Fed. Cl. 170, 183 (2015) (“[O]fferors who are not similarly situated
may be treated differently.” (citation omitted)); Sci. Applications Int’l, 108 Fed. Cl. at
272 (observing that only “[s]ubstantively indistinguishable deficiencies must be
evaluated evenly” (quotation omitted)).
28
5. The Agency’s Treatment of Rivada’s Proposed Device Connection
Targets
Rivada also claims that the agency erred in determining that Rivada’s device
connection targets were overstated. The solicitation defined a device connection as “a
device on a post-paid contract with an eligible NPSBN user that has been generating
billable revenue for three consecutive months.” AR Tab 30 at 1303. In its proposal,
Rivada counted as device connections [ . . . ]. See id. Tab 58 at 8733 (describing such
connections as “over-the-top” connections).
The SSA determined that [ . . . ] was “inconsistent with FirstNet[’s]
interpretation[]” of the term “device connection.” Id. Tab 70 at 10395. He based this
conclusion on the SSEB’s interpretation of the term “device connection,” under which “a
public safety entity whose data traffic from an end user device does not traverse both the
Band 14 core and RAN is not considered to be a connection on the NPSBN.” Id. Tab 67
at 10062.
The Court finds the agency’s interpretation reasonable. When interpreting a
solicitation provision, the court assesses the “plain and ordinary meaning” of the
provision’s terms considered in the context of “the solicitation as a whole.” Banknote
Corp. of Am., Inc. v. United States, 365 F.3d 1345, 1353 (Fed. Cir. 2004) (citing Coast
Fed. Bank, FSB v. United States, 323 F.3d 1035, 1038 (Fed. Cir. 2003)). The court
“interpret[s] [the provision] in a manner that harmonizes and gives reasonable meaning to
all of [the solicitation’s] provisions.” Id. (citation omitted); see also Contract Servs. Inc.
v. United States, 104 Fed. Cl. 261, 274–75 (2012) Linc Gov’t Servs., 96 Fed. Cl. at 708;
Masai Techs. Corp. v. United States, 79 Fed. Cl. 433, 443 (2007).
As noted, the solicitation defined a “device connection” as a connection made by
“an eligible NPSBN user that has been generating billable revenue for three consecutive
months.” AR Tab 30 at 1303. The critical term in this definition is “eligible NPSBN
user,” which the solicitation did not define. Under the plain meaning of the terms, an
“NPSBN user” is someone who uses the network itself—i.e., its physical architecture.
Further, the solicitation as a whole supports this reading of the term, as the
government’s financial and public safety objectives both depend on widespread use of the
network itself. Thus, as noted, Congress authorized FirstNet to collect user fees from
“each entity . . . that seeks access to or use of the [NPSBN].” See 47 U.S.C. § 1428(a)(1).
Rivada, however, does not argue that it proposed to charge a fee to [ . . . ]; even it if did,
or even if it charged a fee for [ . . . ], such intermittent income would not create the type
of sustained revenue stream contemplated by Congress and the agency.
Moreover, the agency’s public safety objectives depend upon the actual use of the
Band 14 network infrastructure. Concentrating public safety communications in Band 14
is a crucial step toward remedying the lack of interoperability that presently hampers
communications between different public safety entities. Counting users of [ . . . ] as
“device connections” does nothing to further this goal.
29
In short, the plain meaning and the context of the solicitation as a whole both
support the agency’s exclusion of “entit[ies] whose data traffic from an end user device
does not traverse both the Band 14 core and RAN” from the definition of a “device
connection” under the solicitation. Accordingly, the agency did not err in assigning
Rivada a weakness with respect to its device connection targets.
6. The Agency’s Evaluation of Rivada’s Value Proposition
Rivada also claims that the agency erred in its assessment of the value proposition
presented by Rivada’s proposal. Pl.’s Mem. at 48–51. The SSA concluded (among other
things) that “certain cost elements” within Rivada’s proposal were unreasonable. AR Tab
70 at 10397. In particular, he observed that “Rivada’s proposed ‘Payments to Contractor’
amounts . . . [were] materially overstated for [ . . . ] relative to expected costs compared
to FirstNet’s IGCE.” Id.
The SSA based this determination on the SSEB’s analysis of Rivada’s proposed
pricing. See id. Tab 67 at 10169–71. The SSEB found that “Rivada’s strategy for pricing
of [ . . . ] [was] unbalanced” and thus “potentially pose[d] an unacceptable risk to the
project.” Id. at 10171. First, the SSEB determined that Rivada’s proposed payments of
[ . . . ] for [ . . . ] and [ . . . ] for [ . . . ] were “a significant departure from the costs
expected for such activities associated with the task order[s], as estimated in the IGCE.”
Id. at 10170. Further, the agency was concerned that if it paid out “[ . . . ] of the funds
available for development of the nationwide elements . . . prior to implementation of the
Core network,” Rivada “would not have strong incentives and/or sufficient funding to
perform on the other contractual elements, including the core network and eventually
performance required by the state RAN task orders.” Id. at 10171.
Regarding [ . . . ], the SSEB found that Rivada’s proposal “to allocate [ . . . ] for
[ . . . ] . . . through FOC” constituted “unbalanced pricing” because Rivada “would incur
costs higher than payments” through the first five years of the contract. Id. at 10170. This
“present[ed] a risk” because Rivada might lack “sufficient funding to support the critical
task build-out and operation of the core network.” Id.
These determinations were not erroneous or unreasonable. The solicitation
informed offerors that the agency would “assess the degree to which proposed payments
to the Contractor accurately reflect the effort described in the technical volume as it
correlates to the IOC/FOC milestones.” Id. Tab 30 at 1456. It also warned offerors that
proposals might be rejected if the proposed pricing was “determined to be unbalanced”
and “the lack of balance pose[d] an unacceptable risk to the Government.” Id. at 1455. In
addition, it noted that “[u]nbalanced or unreasonable pricing exists where the price of one
or more nationwide or state elements is significantly overstated or understated.” Id.
Applying this framework, the agency found that the amount of effort required to
complete [ . . . ] did not justify the [ . . . ] in payments allotted for those Task Orders; and,
conversely, that [ . . . ] would likely require more than [ . . . ] to complete. Notably,
Rivada does not attempt to explain why it would require [ . . . ] to [ . . . ] or [ . . . ] to
[ . . . ], or why it would require [ . . . ] to complete[ . . . ]. Rather, it contends generally
30
that its proposal as a whole “required a substantial capital commitment up front to cover
the costs of placing substantial orders for telecommunications equipment,” as well as for
“network design and site acquisition.” Pl.’s Mem. at 49–50. These vague assertions
provide no basis for disturbing the agency’s conclusions regarding the risks presented by
Rivada’s cost allocations.19 And even if the high up-front costs it proposed were justified
by Rivada’s aggressive build-out plans, the agency would have ample reason to consider
the plans themselves a risk to successful completion of the project. Accordingly, the SSA
did not err in arriving at his conclusions with respect to the value proposition assessment.
7. Whether the Agency Erroneously Double-Counted Certain
Weaknesses
Rivada’s final argument is that the agency improperly assigned it multiple
weaknesses within certain subfactors based on a single perceived issue, which “had the
effect of double-counting Rivada’s evaluated . . . weaknesses.” Id. at 54. This argument,
too, lacks merit. To begin with, Rivada points to no source of law that stands for the
principle it asks the Court to apply—i.e., that an agency may not assign multiple
weaknesses within a subfactor based on a single factual predicate. Nor is such a rule
compatible with the evaluation criteria the SSEB applied. The SSEB noted that a
“weakness” was a “flaw in the proposal that increases the risk of unsuccessful contract
performance”; that a “significant weakness” was “a flaw that appreciably increases the
risk of unsuccessful contract performance”; and that a deficiency was “a material failure
of a proposal to meet a Government requirement or a combination of significant
weaknesses in a proposal that increases the risk of unsuccessful contract performance to
an unacceptable level.” AR Tab 67 at 10045. The agency’s explanations show that it
assessed multiple weaknesses within subfactors because the shortcomings in Rivada’s
proposal created multiple distinct risks. For example, under subfactor 2 (Leadership and
Program Management), the agency found that Rivada’s lack of an executed [ . . . ] would
“have a negative impact on its speed to market for PSE users,” id. at 10057, and also left
19
Rivada attempts to undermine the agency’s conclusions by arguing that the
government’s independent cost estimate did not account for the aspects of Rivada’s
proposal that increased its [ . . . ] costs. See Pl.’s Mem. at 50–51. Citing Alabama Aircraft
Industries, Inc.-Birmingham v. United States, 83 Fed. Cl. 666, 696 (2008), rev’d, 586
F.3d 1372 (Fed. Cir. 2009), it contends that “an agency may not rely on its IGCE without
first considering whether the offeror has proposed a technical approach that would result
in costs different from [those found] in the IGCE.” Pl.’s Mem. at 50. Assuming the
relevant portion of Alabama Aircraft remains good law, the case does not support
Rivada’s position. In fact, Alabama Aircraft does not involve an independent cost
estimate at all. Rather, the court in that case found that the government erred in a price
realism analysis of a proposal because it relied on a flawed assumption about its own
needs. See 83 Fed. Cl. at 699–700. Here, the government used the IGCE as a benchmark
and found that the individual characteristics of Rivada’s proposal did not justify its
departures from the government’s estimated prices. See AR Tab 67 at 10170. This
approach was not erroneous.
31
the agency unsure whether Rivada could “achieve user adoption targets [or] meet the
financial sustainability objective,” id. at 10060.
Similarly, under subfactor 3 (Public Safety Customer Acquisition), the lack of an
executed [ . . . ] created two distinct risks. First, absent an executed agreement, there was
a risk that Rivada would “not have the ability to provide [ . . . ] service upon award.” Id.
at 10067. Second, even if Rivada could provide service upon award, the agency was
unable to assess whether “monthly invoice[s] . . . loaded with incremental and other
costs” would discourage public safety users from adopting the service because Rivada’s
proposal had no information about “pricing for [ . . . ], volume discounts, unlimited data
plans, or roaming or LMR interoperability costs.” Id. at 10067–68. In short, it was not
irrational for the SSEB to identify multiple types of risks within a single subfactor that
flowed from critical flaws in Rivada’s proposal.
Further, the SSA did not make the competitive range determination by
mechanically compiling the weaknesses identified by the SSEB and then eliminating
those proposals that in his view had too many. Indeed, he specifically noted that “the
number of strengths, weaknesses, and/or deficiencies is not controlling.” Id. Tab 70 at
10396. Instead, he digested the SSEB’s report and weighed the aspects of Rivada’s
proposal that were considered strengths against those that led to weaknesses and/or
created risk. In conducting this sort of assessment, it is unsurprising that a single issue
might result in more than one type of risk to successful contract completion. For example,
Rivada’s lack of executed teaming and subcontracting agreements presented two different
types of risk: first, that Rivada might not have the financial resources to complete the
project; and second, that even if Rivada had enough funding, it might lack the technical
capacity to build the nationwide network it proposed. See id. at 10395; id. Tab 67 at
10058–59. The SSA thus did not err in considering the different ways in which individual
facets of Rivada’s proposal might affect its ability to perform the contract.
* * * * * * * * * * * * * * * * * * * * * * * *
In sum, Rivada’s claims of error in the agency’s evaluation all lack merit.
Accordingly, the Court lacks any basis for disturbing the conclusions reached by the
SSA. Whether subject to “close scrutiny” or some more deferential standard, Rivada’s
exclusion from the competitive range was not arbitrary, capricious, or contrary to law.
CONCLUSION
For the reasons discussed above, Rivada’s motion for judgment on the
administrative record is DENIED, and the government’s and the intervenor’s cross-
motions for judgment on the administrative record are GRANTED. The Clerk is directed
to enter judgment accordingly. Each side shall bear its own costs.
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IT IS SO ORDERED.
s/ Elaine D. Kaplan
ELAINE D. KAPLAN
Judge
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