Rivada Mercury, LLC v. United States
131 Fed. Cl. 663
| Fed. Cl. | 2017Background
- FirstNet (created by Congress) issued a complex RFP to select a contractor to build, deploy, and operate a nationwide public safety broadband network (NPSBN) using Band 14 spectrum; award would be a single IDIQ with fixed payments to FirstNet from the contractor.
- Rivada Mercury, LLC and AT&T submitted proposals; FirstNet conducted multi-phased evaluations including written exchanges and oral presentations before establishing a competitive range.
- The Source Selection Evaluation Board (SSEB) and Source Selection Authority (SSA) concluded Rivada’s proposal had numerous significant weaknesses and deficiencies (financial sustainability, reliance on unproven wholesale market, lack of executed teaming agreements, questionable device adoption projections, and unbalanced pricing), while AT&T’s proposal presented substantially lower risk.
- On October 17, 2016 the SSA placed only AT&T in the competitive range and excluded Rivada; Rivada sought debriefing, requested reconsideration, then filed this pre-award bid protest in the Court of Federal Claims.
- Rivada argued FirstNet improperly conducted discussions before establishing the competitive range, conducted misleading/uneven discussions, applied unstated evaluation criteria, and unreasonably evaluated and double-counted weaknesses in its proposal.
- The court reviewed cross-motions for judgment on the administrative record and upheld FirstNet’s competitive range decision, denying Rivada’s motion and granting the government’s and AT&T’s motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pre-competitive exchanges / oral presentations were "discussions" under FAR 15.306(d) | Rivada: exchanges were extensive and allowed proposal revisions, so they were discussions and unlawful before competitive range was set | Gov: exchanges were communications/clarifications under FAR 15.306(a)/(b), limited to clarifying ambiguities; agency did not intend nor accept proposal revisions | Court: Exchanges were communications, not discussions; agency consistently disclaimed intent to accept revisions and only sought clarifications |
| Whether discussions (if any) were misleading or not meaningful | Rivada: any discussions were misleading and uneven, favoring AT&T and denying Rivada opportunity to cure deficiencies | Gov: no discussions occurred; communications were evenhanded and consistent with the RFP | Court: did not reach meaningfulness claim because no discussions occurred; record shows communications were limited and consistent with FAR |
| Whether FirstNet applied unstated evaluation criteria or treated AT&T more favorably | Rivada: agency had unstated preference for a large carrier and applied extra favorable assumptions to AT&T | Gov: evaluation followed RFP criteria; differences reflect substantive proposal differences and risk assessments | Court: SSA applied stated criteria; differences in treatment were reasonable given Rivada’s greater financial and performance risk |
| Whether SSA’s substantive ratings (financial sustainability, teaming, device adoption, pricing balance, double-counting) were arbitrary or capricious | Rivada: SSA unreasonably emphasized certain risks, misinterpreted device connections, improperly penalized reliance on debt, and double-counted issues | Gov: SSEB/SSA reasonably found multiple, distinct risks supported by the record and the RFP; interpretations (e.g., device connection) are reasonable | Court: SSA judgments were reasonable and supported by the administrative record; no basis to disturb competitive range exclusion |
Key Cases Cited
- Birch & Davis Int’l, Inc. v. Christopher, 4 F.3d 970 (Fed. Cir. 1993) (discusses heightened scrutiny for competitive range-of-one decisions under earlier FAR language)
- Info. Tech. & Applications Corp. v. United States, 316 F.3d 1312 (Fed. Cir. 2003) (clarifies when exchanges constitute discussions and that clarifications may supply essential information)
- Orion Tech., Inc. v. United States, 704 F.3d 1344 (Fed. Cir. 2013) (standing in bid protest requires a competitive injury; guiderails for "substantial chance" standard)
- Bannum, Inc. v. United States, 404 F.3d 1346 (Fed. Cir. 2005) (standard for bid-protest review: arbitrary and capricious under the APA)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (administrative actions must be rational, consider relevant factors, and explain decisions)