RESPONSE TO AGENCY REPORT B-411936 DEFENSE LOGISTICS AGENCY

Latvian Connection LLC Al Shareefa Complex – 5

th FL

Kuwait City, Kuwait

Tel: 707 385 9344

September 24, 2015

BY REGISTERED EMAIL

Matthew T. Crosby

Government Accounting Office

441 G Street, NW

Washington DC 20548

Email: Protests@gao.gov

Attn: Procurement Law Control Group, Room 1139

RE: AGENCY REPORT RESPONSE TO B-411936 DLA SOLICITATION No SPE8ED15Q0573

FAILING TO SET ASIDE SOLICITATION WITH VALUE OF $ 3,000 - $ 150,000

FAILING TO PROVIDE SOLE BRAND JUSTIFICATION AND APPROVAL

Dear Mr. Crosby: Latvian Connection LLC, (“ LC LLC”) A U.S. SMALL BUSINESS SAM REGISTERED with

DUNS 534749622 and CAGE SGM59, submits this Agency Report response to the Defense Logistics Agency report regarding DLA not setting aside solicitation for U.S. Small Businesses exclusively and violating the Small Business Act.

State argues that the GAO decision of Latvian Connection General Trading and Construction LLC, B-408633,

Sept. 18, 2013 CPD ¶ 224, applies here. In that case, GAO ruled that FAR 19.000(b) limits the application of FAR

part 19 (dealing with SBA’s small business programs) to acquisitions conducted in the United States (and its

outlying areas). We believe the basis for the GAO’s ruling was that SBA’s regulation were silent on this issue and

therefore, the more specific far regulations controlled.

Heeding this advice, the SBA recently promulgated regulations to address this issue. Specifically, SBA made

wholesale changes to 13 CFR § 125.2 on October 2, 2013. As a result, SBA issued a final rule stating that: “Small

business concerns must receive any award ( including orders, and orders placed against Multiple Award Contracts)

or contract, part of any such award or contract, and any contract for the sale of Government property, regardless of

the place of performance, which the SBA and the procuring or disposal agency determine to be in the interest of:”

13 C.F.R. § 125.2(a)(emphasis added). Likewise, the rule also states that: “Small Business Act requires each

Federal agency to foster the participation of small business concerns as prime contractors and subcontractors in the

contracting opportunities of the Government regardless of the place of performance of the contract.” Id. 125.2

(c)(emphasis added).

Therefore, SBA’s policy and legal interpretation of the Small Business has been incorporated into the regulations. In sum,

according to statute and regulations, small business set asides, regardless of place of performance, are mandatory for

acquisitions valued from $ 3,000 to $ 150,000 We request you invite the SBA to comment please.

Additionally, there is no Justification and Approval for a Sole Brand or Sole Source

DLA has failed to utilize the DD Form 2579 in accordance with the Federal Acquisition Regulations requirement that:

(A) Reviewing and making recommendations for all acquisitions (including orders placed against Federal Supply Schedule

contracts) over $10,000, except those under the simplified acquisition threshold that are totally set aside for small business

concerns in accordance with FAR 19.502-2. Follow the procedures at PGI 219.201(c)(10) (DFARS/PGI view) regarding such

reviews.

2 | P a g e

RESPONSE TO AGENCY REPORT B-411936 DEFENSE LOGISTICS AGENCY

DLA has attempted to utilize an outdated DD Form 2579 that never could have been a Blanket Exemption from complying with

the Competition in Contracting Act or the Small Business Act.

The FAR doesn’t give the option to issue a Blanket DD Form 2579, so this TAB 3 DD Form is illegal, demonstrates that the

Blanket is illegal and doesn’t comply with the purpose of the Form to look at each acquisition.

A new DD Form 2579 (ATTCH 10 ) replaced TAB 3 on August 1, 2015 and it renders DLA’s attempt to circumvent the

Competition in Contracting Act and Small Business Act as incomplete.

FAR 219.201 was violated as there was not an individual DD Form 2579 completed and this solicitation was not set aside for

Small Businesses.

DLA did not post on the Government Point of Entry ( ATTCH 3 ) the specifications for the solicitation. FEDERAL

LOGISTICS INFORMATION SYSTEM and HAYSTACK Database does not comply with the requirement to post the

specifications for a solicitation with a value of greater than $ 25,000 on the GPE. DLA appear to have a DD Form 2579

partially filled out that claims to be a Blanket ( ATTCH 9 ) pre-signed on October 9, 2014 for a solicitation that didn’t

appear until August 13, 2015. This violates the General Policy regarding the Small Business Coordination Record.

219.201 General policy.

(c) For the defense agencies, the director of the Office of Small Business Programs must be appointed by, be responsible to,

and report directly to the director or deputy director of the defense agency.

(8) The responsibility for assigning small business technical advisors is delegated to the head of the contracting activity.

(10) Contracting activity small business specialists perform this function by—

(A) Reviewing and making recommendations for all acquisitions (including orders placed against Federal Supply

Schedule contracts) over $10,000, except those under the simplified acquisition threshold that are totally set aside for small

business concerns in accordance with FAR 19.502-2. Follow the procedures at PGI 219.201(c)(10) (DFARS/PGI

view) regarding such reviews.

(B) Making the review before issuance of the solicitation or contract modification and documenting it on DD Form

2579, Small Business Coordination Record (seePGI 253.219-70 for instructions on completing the form); and

(C) Referring recommendations that have been rejected by the contracting officer to the Small Business

Administration (SBA) procurement center representative. If an SBA procurement center representative is not assigned, see FAR

19.402(a).

(11) Also conduct annual reviews to assess—

(A) The extent of consolidation of contract requirements that has occurred (see 207.170); and

(B) The impact of those consolidations on the availability of small business concerns to participate in procurements

as both contractors and subcontractors.

(d) For information on the appointment and functions of small business specialists, see PGI 219.201(d) (DFARS/PGI view).

3 | P a g e

RESPONSE TO AGENCY REPORT B-411936 DEFENSE LOGISTICS AGENCY

DLA state:

ATTCH 3 B-411489

As stated above, the Army failed to meet its obligation to publicize the issuance of RFP

For the record, we also disagree with the Army’s argument that the protester had constructive knowledge of

amendment No. 4 as of April 28, the date the agency posted amendment No. 4 on the AFSI website. The AFSI

website is not a government-wide point of entry (GPE) designated for the publication of solicitations. Instead,

FedBizOpps has been designated as the GPE--that is, the single point where government business opportunities

greater than $25,000 (such as the solicitation here), including synopses of proposed contract actions, solicitations,

and associated information, can be accessed electronically by the public. FAR §§ 5.101, 5.101(a)(1), 5.102.4 While

offerors are charged with constructive notice of procurement actions published on the GPE, Latvian Connection did

not have constructive notice in this instance because AFSI is not the GPE.

DIBBS is not the GPE for a solicitation with a value of greater than $ 25,000

The fraudulent DLA DD Form 2579 was not issued by the SBA for this solicitation No SPE8ED15Q0573.

DLA has fabricated a DD Form 2579 not based on the solicitation, but based on a blanket effort to disenfranchise U.S.

Small Businesses and Veteran Owned Small Business, Latvian Connection LLC.

DLA state:

4 | P a g e

RESPONSE TO AGENCY REPORT B-411936 DEFENSE LOGISTICS AGENCY

In preparing a solicitation, a contracting agency is generally required to specify its needs and solicit offers in a manner

designed to achieve full and open competition, so that all responsible sources are permitted to compete. 41 U.S.C. §

3306(a)(1)(A) (2012). A solicitation may include restrictive provisions or conditions only to the extent necessary to satisfy

the agency’s needs or as authorized by law. Id. § 3306(a)(2)(B). To the extent a protester challenges a specification as

unduly restrictive, that is, challenges both the restrictive nature of the requirement as well as the agency’s need for the

restriction, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to

meet its needs. The adequacy of the agency’s justification is ascertained through examining whether the agency’s

explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Trident World Sys., Inc., B-

400901, Feb. 23, 2009, 2009 CPD ¶ 43 at 3.

DLA failed to provide specifications or promote full and open competition among U.S. Small Businesses. DLA instead

fabricated a SBA blanket document that does not meet the purpose of a DD Form 2579 according to the Federal

Acquisition Regulations or Policy.

DLA failed to utilize the newly issued DD Form 2579 and did not present this solicitation to the Small Business

Administration. They instead try to pass off that the SBA did review this acquisition when clearly the SBA did not look at

this and DLA has tried to pencil-whip an approval of the SBA when they have no such approval at all.

DLA state

This is inconsistent with the requirements of posting salient characteristics and specifications.

DLA should be issuing a solicitation as Brand Name or Equal or issue a Justification and Approval for Sole Source and

Sole Brand.

DLA violated the Competition in Contracting Act.

The Competition In Contracting Act (CICA) makes full and open procurement as the standard for most contracting

opportunities. Before CICA many Federal contracts were not competed but awarded based more on who you knew

within the government.

General The Competition In Contracting Act (CICA) was passed into law in 1984 to foster competition and thus reduce

costs. The theory was that more competition for procurements would reduce costs and allow more small businesses

to win contracts. CICA requires almost all procurements to be competed as full and open so any qualified company

can submit a proposal.

Provisions CICA requires all procurements with an estimated value over $25,000 be advertised for at least 15 days on FBO.

The solicitation on FBO also requires use of a standard format making it easier for companies to review. The

solicitation is to be posted for at least 30 days before proposal are due.

If the contracting officer decides not to make the procurement full and open (also known as unrestricted) then they

have to document the reasons for the decision. Procurements can still be set-aside for small businesses,

disadvantaged, 8(a), HUBZone and veteran owned businesses but market research is needed to document that at

least two responsible sources are available within the set-aside market.

A responsible source is defined in CICA as a company that meets the following:

Financial resources required to complete the contract if awarded

Has the ability to meet the delivery schedule

Has a satisfactory performance record

Has a satisfactory record of business ethics (no government contracting

5 | P a g e

RESPONSE TO AGENCY REPORT B-411936 DEFENSE LOGISTICS AGENCY

Has or can obtain the technical, accounting and management skills needed to complete the contract

Has the equipment or production capability needed or can obtain it

Qualified to obtain the contract under applicable laws and regulations

CICA also establishes procedures for filing protests when errors in procurement are suspected. The protest has to be

documented and filed with the GAO before the contract is awarded. GAO then has 90 days to investigate and issue

a ruling.

A variety of procurement methods can be used to meet CICA requirements. These methods include:

Justification For Not Using Full and Open Contracting officers must document any procurement that will not be by full and open competition. Knowing what

the contracting officer needs to document can help you understand the process. The justification has to include:

Description of the procuring agencies needs

What statute or regulation is being used for the other than full and open competition and why has this regulation

been selected

What is the anticipated cost of the procurement

Market survey showing the targeted set-aside group has at least two responsible bidders

What companies have expressed interest in the procurement in writing. This is normally from a sources sought

release.

A statement as to any actions to be taken in the future to remove barriers to unrestricted competition.

Knowing the rules regarding procurements allows you to not only understand the procurement process but also see

when the rules are not followed. If you lose a procurement and are determining whether to file a protest then you

must know the provisions of CICA.

DLA failed to set aside a solicitation that they acknowledge has a value of $ 44,000

State argues that the GAO decision of Latvian Connection General Trading and Construction LLC, B-408633, Sept.

18, 2013 CPD ¶ 224, applies here. In that case, GAO ruled that FAR 19.000(b) limits the application of FAR part 19

(dealing with SBA’s small business programs) to acquisitions conducted in the United States (and its outlying areas). We

believe the basis for the GAO’s ruling was that SBA’s regulation were silent on this issue and therefore, the more specific

far regulations controlled.

Heeding this advice, the SBA recently promulgated regulations to address this issue. Specifically, SBA made wholesale

changes to 13 CFR § 125.2 on October 2, 2013. As a result, SBA issued a final rule stating that: “Small business concerns

must receive any award ( including orders, and orders placed against Multiple Award Contracts) or contract, part of any

such award or contract, and any contract for the sale of Government property, regardless of the place of performance,

which the SBA and the procuring or disposal agency determine to be in the interest of:” 13 C.F.R. § 125.2(a)(emphasis

added). Likewise, the rule also states that: “Small Business Act requires each Federal agency to foster the participation of

small business concerns as prime contractors and subcontractors in the contracting opportunities of the Government

regardless of the place of performance of the contract.” Id. 125.2 (c)(emphasis added).

Therefore, SBA’s policy and legal interpretation of the Small Business has been incorporated into the regulations. In sum,

according to statute and regulations, small business set asides, regardless of place of performance, are mandatory for

acquisitions valued from $ 3,000 to $ 150,000 ( ATTCH 2 )

DLA VIOLATED CICA

Of course SESOLINC was the only company to submit a bid. DLA has bid-rigged this so that only this company could

respond.

Latvian has put forward a teaming partner and DLA should have looked at the on Federal Government approved database

for NAICS and that is SAM.gov ATTCH 7 to see the NAICS associated with Marafie Kuwaitia. We also have another

6 | P a g e

RESPONSE TO AGENCY REPORT B-411936 DEFENSE LOGISTICS AGENCY

company that we bid with that has experience and that is Al Zoba. The Non Manufacturer rule doesn’t apply because IF

we had the specifications and salient characteristics being withheld by DLA, we would have constructed this in Kuwait.

DLA MADE A NEGATIVE DETERMINATION AND VIOLATED SBA CERTIFICATE OF COMPETENCY PROCESS

DLA violated the SBA’s Authority to review

7 | P a g e

RESPONSE TO AGENCY REPORT B-411936 DEFENSE LOGISTICS AGENCY

B-410947

Under the Small Business Act, agencies may not find a small business nonresponsible without referring the matter to

the SBA, which has the ultimate authority to determine the responsibility of small businesses under its COC

B-410263, Nov. 26, 2014, 2014 CPD ¶ 344 at 6-7. In this regard, the Small Business Act provides that it is the SBA’s duty:

To certify to Government procurement officers . . . with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract.

15 U.S.C. § 637(b)(7)(A) (emphasis added). Importantly, this section of the Act also provides that a “Government procurement officer . . . may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration.” Id. B-410981

Protest is sustained where FedBid, acting as the agent for the contracting agency, excluded the protester, a small business, from the competition based on a perceived lack of business integrity, in effect making a negative responsibility determination, without referring the matter to the Small Business Administration under the Certificate of Competency procedures.

The solicitation, issued on December 11, 2014, and set aside for small businesses, sought a contractor to provide fabrication and installation of a high-density mobile shelving system to replace the current steel cantilever shelving at the U.S. Geological Survey’s library in Denver, Colorado. Agency Report (AR), Tab 5, RFQ, at 1; see Contracting Officer’s Statement (COS) at 1. The estimated value of the procurement was $95,159. COS at 1. Under our Bid Protest Regulations, we will only consider protests filed by an “interested party,” that is, an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. 4 C.F.R. §21.0(a). Determining whether a party is interested involves consideration of a variety of factors, including the nature of the issues raised, the benefit or relief sought by the protester, and the party’s status in relation to the procurement. Advanced Concept Enterprises, Inc., B-410069.3, B-410069.4 Jan. 22, 2015, 2015 CPD ¶ 53 at 2. Here, we find that Latvian Connection has sufficiently established its status as an interested party. As we noted in our prior decision, under the Small Business Act, agencies may not find a small business nonresponsible without referring the matter to the SBA, which has the ultimate authority to determine the responsibility of small businesses under its COC procedures. 15 U.S.C. § 637(b)(7); FAR subpart 19.6; Latvian Connection, LLC, supra; FitNet Purchasing Alliance, B-410263, Nov, 26, 2014, 2014 CPD ¶ 344 at 6-7. In this regard, the Small Business Act provides that it is the SBA’s duty: To certify to Government procurement officers . . . with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. 15 U.S.C. § 637(b)(7)(A) (emphasis added). Importantly, this section of the Act also provides that a “Government procurement officer . . . may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration.” Id.

8 | P a g e

RESPONSE TO AGENCY REPORT B-411936 DEFENSE LOGISTICS AGENCY

DLA stated:

LATVIAN CONNECTION LLC WOULD HAVE CONSTRUCTED THE CONTAINER IN KUWAIT with teaming

partners as afforded by FAR 9.6. ( ATTCH 7 AND 8 )

DLA made a negative determination that we could not bid in its agency report and this would be a matter that would have

to be referred to the Small Business Administration for a Certificate of Competency.

DLA judge out teaming partner without consulting the SAM database for their experience.

DLA violated the SBA rules that they must set aside all solicitations with a value of between $ 3,000 and $ 150,000.

State argues that the GAO decision of Latvian Connection General Trading and Construction LLC, B-408633, Sept.

18, 2013 CPD ¶ 224, applies here. In that case, GAO ruled that FAR 19.000(b) limits the application of FAR part 19

(dealing with SBA’s small business programs) to acquisitions conducted in the United States (and its outlying areas). We

believe the basis for the GAO’s ruling was that SBA’s regulation were silent on this issue and therefore, the more specific

far regulations controlled.

Heeding this advice, the SBA recently promulgated regulations to address this issue. Specifically, SBA made wholesale

changes to 13 CFR § 125.2 on October 2, 2013. As a result, SBA issued a final rule stating that: “Small business concerns

must receive any award ( including orders, and orders placed against Multiple Award Contracts) or contract, part of any

such award or contract, and any contract for the sale of Government property, regardless of the place of performance,

which the SBA and the procuring or disposal agency determine to be in the interest of:” 13 C.F.R. § 125.2(a)(emphasis

added). Likewise, the rule also states that: “Small Business Act requires each Federal agency to foster the participation of

small business concerns as prime contractors and subcontractors in the contracting opportunities of the Government

regardless of the place of performance of the contract.” Id. 125.2 (c)(emphasis added).

Therefore, SBA’s policy and legal interpretation of the Small Business has been incorporated into the regulations. In sum,

according to statute and regulations, small business set asides, regardless of place of performance, are mandatory for

acquisitions valued from $ 3,000 to $ 150,000 ( ATTCH 2 )

9 | P a g e

RESPONSE TO AGENCY REPORT B-411936 DEFENSE LOGISTICS AGENCY

Request of a ruling by the Comptroller General of the United States

LATVIAN CONNECTION LLC specifically requests that the GAO recommend that the solicitation

SPE8ED15Q0573 be conducted as a Lowest Priced, Technically Acceptable solicitation on www.fbo.gov and be

reserved for U.S. Small Businesses exclusively. We also request that drawings, technical specifications, and salient

characteristics are posted. This should be brand name or equal or DLA should post a J & A as to why this one company

should be awarded this contract without competition. This solicitation is defective and violates the Competition in

Contracting Act, the Small Business Act and the Federal Acquisition Regulations regarding elements of a solicitation and

the salient characteristics and this solicitation lacks specifications.

REQUEST FOR HEARING OR CONFERENCE AND PROTECTIVE ORDER

If the issues in this case cannot be resolved on the basis of the documents requested, then LATVIAN

CONNECTION LLC requests a hearing on all of the matters set forth above. 4 C.F.R. § 21.1 (d)(2008). Latvian

Connection LLC does not request a protective order. GAO - WE EXPRESSLY REQUEST THAT THIS PROTEST NOT

BE EXPIDITED.

REQUEST FOR RELIEF AND CONCLUSION

LATVIAN CONNECTION LLC requests that the Agency take corrective action and issue an Amendment, that

is posted on www.fbo.gov and that this solicitation as a Lowest Priced, Technically Acceptable solicitation that is

reserved for U.S. Small Business concerns exclusively.

We also request that Latvian Connection LLC be reimbursed the costs of filing and pursuing its protest,

including reasonable protest preparation fees. Bid Protest Regulations 4 C.F.R. § 21.8(d)(1) (2010).

Under the Competition in Contracting Act of 1984, the GAO may recommend that protest costs be reimbursed where

they find that an agency’s action violated a procurement statute or regulation. 31 U.S.C. § 3554(c)(1) (2010). The

GAO’s Bid Protest Regulations provide that, where the contracting agency decides to take corrective action in response to

a protest, the GAO may recommend that the protester be reimbursed the costs of filing and pursuing its protest, including

reasonable attorneys’ fees. 4 C.F.R. § 21.8(e) (2010). The GAO has stated that it “does not mean that costs should be

reimbursed in every case in which an agency decides to take corrective action; rather, a protester should be reimbursed its

costs where an agency unduly delayed its decision to take corrective action in the face of a clearly meritorious protest.

Griner’s-A-One Pipeline Servs., Inc.--Costs, B-255078.3, July 22, 1994, 94-2 CPD ¶ 41 at 5.

The Equal Access to Justice Act (EAJA)[i] provides for the award of attorney fees and other expenses to eligible

individuals and small entities who are parties to certain adversary adjudications in administrative proceedings. An eligible

party may receive an award when the party prevails over the government, unless the government’s position was

substantially justified or special circumstances make an award unjust. Fee provided under the EAJA is limited to $125

per hour. The EAJA applies to adversary adjudications pending or commenced on or after August 5, 1985.

10 | P a g e

RESPONSE TO AGENCY REPORT B-411936 DEFENSE LOGISTICS AGENCY

To recover fee under the EAJA, a claimant must show that s/he is a prevailing party. Prevailing party is one who achieves

the benefits s/he sought. To obtain fee under the EAJA a party must also show that:

the lawsuit was a material factor in bringing about the desired result;

the outcome was required by law; and

decision was not a gratuitous act by the government.

If, in adversary adjudication arising from an agency action the demand by the agency is found substantially in excess of

the decision of the adjudicative officer and is unreasonable when compared with the decision, the adjudicative officer

shall award to the party the fees and other expenses against the excessive demand. To claim award under the EAJA party

need not have committed a willful violation of law or otherwise acted in bad faith. Award granted should not be unjust in

any circumstances. Fees and expenses awarded shall be paid only as a consequence of appropriations provided in

advance.[ii]

Fees and other expenses under the EAJA include:

the reasonable expenses of expert witnesses:

the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be

necessary for the preparation of the party’s case; and

reasonable attorney’s or agent fees.[iii]

Every party other than an agency who participated in adversary adjudication can recover attorney’s fee and agent

fee. Party represented by a non attorney is also permitted under the EAJA to recover fee. Award provided under the

EAJA is mandatory and the agency has no discretion to deny attorney fee provided s/he complies all the requirements

under the EAJA.

However certain state laws also authorizes the recovery of reasonable attorney fees. N.D. Cent. Code § 28-32-50(1)

requires an award of reasonable attorney fees and costs to a prevailing claimant if an administrative agency has acted

without substantial justification. N.D. Cent. Code § 28-32-50(1) sets forth a two-part test which must be met in order to

properly award attorney fees: first, the non administrative party must prevail, and second, the agency must have acted

without substantial justification.[iv]

[i] 5 U.S.C. § 504; 28 U.S.C. § 2412; [ii] 5 U.S.C.A. § 504(a)(4) ; [iii] 5 U.S.C.A. § 504(b)(1)(A); [iv] 5 U.S.C.A. §

504(b)(1)(A), Tedford v. Workforce Safety & Ins., 2007 ND 142 (N.D. 2007).

Respectfully submitted,

__________________________

KEVEN L. BARNES

CEO

LATVIAN CONNECTION LLC

United States Government Accountability Office Washington, DC 20548

Comptroller General of the United States

Decision Matter of: Latvian Connection, LLC File: B-411489 Date: August 11, 2015 Keven L. Barnes, Latvian Connection, LLC, for the protester. CPT Ahsan M. Nasar, and Scott N. Flesch, Esq., Department of the Army, for the agency. Katherine I. Riback, Esq., and Jonathan L. Kang, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protester’s contention that it did not have a reasonable amount of time to respond to a solicitation amendment is sustained where the record shows that the protester did not have constructive notice of the issuance of the amendment, and did not learn of the amendment until less than 2 business days prior to the revised closing date. DECISION Latvian Connection, LLC, of Healdsburg, California, a small business, challenges the terms of request for proposals (RFP) No. W912D1-15-R-0014, issued by the Department of the Army to provide and install sunshade canopies at various sites in Kuwait. Specifically, the protester argues that the agency did not provide it adequate time to respond to an amendment to the RFP. We sustain the protest. BACKGROUND The Army issued the solicitation on March 20, 2015, to procure sunshade canopies of various dimensions. The RFP anticipates the award of a fixed-price contract with a cost-reimbursement contract line item number (CLIN) for Defense Base Act

Page 2 B-411489

insurance.1

RFP at 6. The anticipated value of the contract exceeds $25,000. Email from Agency to GAO (Aug. 4, 2015).

As relevant here, the RFP provides that “all offerors must submit an electronic proposal to the Contracting Officer and Contract Specialist.” RFP at 57. The initial solicitation listed an email address for the contract specialist in three places in the solicitation, including “Contracting Office Points of Contact.” Id. at 40, 54, 56. The initial solicitation also included an incorrect version of the contract specialist’s email in a section regarding the site visit.2

Id. at 40. Before proposals were due, the protester sent the agency a question via email about a Defense Federal Acquisition Regulations Supplement (DFARS) § 252.236-7001 contract drawing. AR, Tab 8, Email from Latvian Connection to the Army (Apr. 15, 2015). This email was correctly addressed to the contracting officer and the contract specialist. Id.

Latvian Connection submitted its initial proposal on April 20. This proposal was sent to the email address listed for the original contracting officer, and was also sent to the incorrect address for the contract specialist. AR, Tab 10, Email from Latvian Connection of Initial Proposal to Army (April 20, 2015). As the agency explains, the original contracting officer was away on temporary duty at the time for receipt of proposals, and was therefore not aware that Latvian Connection had submitted a proposal. AR at 2. The contract specialist did not receive the proposal because of the error in the email address used by the protester. Id. Shortly before proposals were due, the record shows that on April 11, the agency assigned a new contracting officer to the procurement; the agency, however, did not update the solicitation to reflect the identity of the new contracting officer until April 28. Id. at 3 n.1. On April 28, the agency issued RFP amendment No. 4, which set forth the revised dimensions of the sunshades, provided revised instructions for the submission of proposals, provided contact information for the new contracting officer, and established a new deadline for the submission of proposals of 3 p.m. Kuwait Local Time on May 4. AR, Tab 11, RFP amend. No. 4 (Apr. 28, 2015). The agency states that although it provided copies of amendment No. 4 to the offerors that submitted initial proposals, the agency did not provide a copy to Latvian Connection. AR at 4. The agency explains that it did not provide a copy of the

1 While the agency states that it issued the original solicitation and amendments using Federal Acquisition Regulation (FAR) part 13 simplified acquisition procedures, and that its actions were consistent with such procedures, the agency acknowledges that the solicitation was silent as to whether it followed FAR part 13 or part 15 procedures. Agency Report (AR) at 8.

2 The error was a second period in the email address, which resulted in an address similar to the following: John..A.Doe.civ@mail.mil.

Page 3 B-411489

amendment to Latvian Connection because it was not aware that the protester had submitted a proposal. The agency explains it was not aware because Latvian Connection’s initial proposal was sent to the incorrect address for the contract specialist, and because the original contracting officer was away on temporary duty at the time the proposal was submitted and was not aware that he had received it. AR at 4. The agency also posted RFP amendment No. 4 on the Army Single Face to Industry (ASFI) website on April 28. AR, Tab 13, Affidavit of Contract Specialist (May 28, 2015). The protester states that it became aware of amendment No. 4 on May 2 (Saturday)--two days before proposals were due on Monday, May 4--from the posting on the ASFI website. Protester’s Email to GAO (July 5, 2015) at 3; Protester’s Email to GAO (Aug. 3, 2014). On Sunday, May 3, Latvian Connection submitted its protest to our Office, complaining that the Army had failed to advise it of the change to the solicitation, and failed to provide sufficient time for a response. The protest was docketed by our Office on Monday, May 4, at 8:30 a.m., Eastern Time--which was 30 minutes after the specified closing time of 3:00 p.m., local Kuwait time.3

On Monday, May 4, the protester submitted its revised proposal to the original contracting officer (rather than the new contracting officer) and to the contract specialist, using the same incorrect email address for this individual that had been used to submit the protester’s initial proposal. AR, Tab 15, Email from Latvian Connection to Army of Revised Proposal (May 4, 2015). The previous contracting officer received Latvian Connection’s proposal at 3:02 p.m., Kuwait local time. The Army requested that our Office dismiss the protest on the grounds that Latvian Connection was not an interested party because it had not submitted a proposal in response to the solicitation. Army Request for Dismissal (May 13, 2015). Latvian Connection responded that it submitted its initial proposal on April 20, and provided documentation reflecting its submission. Latvian Connection Response to Request for Summary Dismissal (May 15, 2015). Our Office denied the agency’s request for dismissal and asked the agency to submit a report that addressed the merits of the protest. GAO Denial of Agency Request for Summary Dismissal (May 19, 2015).

3 Kuwait is located in the Arabia time zone, which is 7 hours ahead of the Eastern Time zone. AR at 8.

Page 4 B-411489

DISCUSSION Latvian Connection argues that it was not afforded sufficient time in which to respond to amendment No. 4, specifically the requirement to submit a new proposal addressing the revised sunshade canopy dimensions. Protest at 2; Protester’s Comments at 12. Latvian Connection argues that its protest is timely because it learned of amendment No. 4 on May 2, and filed a protest with our Office within less than one business day. The protester also argues that the issuance of amendment No. 4 was improper because the Army failed to restrict the procurement to the offerors that submitted initial proposals, as required by FAR § 15.206. For the reasons discussed below, we conclude that the protester was not provided a reasonable amount of time to respond to RFP amendment No. 4, and we sustain the protest on this basis. The Army first argues that the protest is untimely because it was not filed prior to the revised closing time of May 4 at 3:00 p.m., Kuwait local time--which was 8:00 a.m., Eastern Time. AR at 8. The Army notes that Latvian Connection’s protest was time/date stamped by our Office on May 4 at 8:30 a.m., Eastern Time, which was 30 minutes after the specified closing time of 3:00 p.m., local Kuwait time. Id. For the reasons discussed below, we conclude that the protest is timely. The Army is correct that our Bid Protest Regulations require that a protest based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of initial proposals must be filed before that time. 4 C.F.R. § 21.2(a)(1). This rule includes protests that challenge alleged improprieties that did not exist in the initial solicitation but which are subsequently incorporated into it; in such cases, the solicitation must be protested not later than the next closing time for receipt of proposals following the incorporation. Id.; see Cessna Aircraft Co., B-261953.5, Feb. 5, 1996, 96-1 CPD ¶ 132 at 16. In this respect, our timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without unduly disrupting or delaying the procurement process. Dominion Aviation, Inc.--Recon., B-275419.4, Feb. 24, 1998, 98-1 CPD ¶ 62 at 3. The Army is also correct that our Regulations provide that a document, including a protest, is considered filed “on a particular day when it is received by GAO by 5:30 p.m., Eastern Time, on that day.” 4 C.F.R. § 21.0(f). Further, our Office has explained that a document filed after 5:30 p.m. Eastern Time, on a particular day, is considered filed at 8:30 a.m., Eastern Time, the next day our Office is open. Guam Shipyard, B-294287, Sept. 16, 2004, 2004 CPD ¶ 181 at 3. For this reason, Latvian Connection’s protest, which was submitted to our Office via email on Sunday, May 3, was considered filed at 8:30 a.m., Eastern Time, on Monday, May 4. We nonetheless conclude that the protest was timely filed. The Army does not dispute the protester’s representation that it received actual knowledge of the

Page 5 B-411489

amendment after our Office closed on Friday, May 1 (at 5:30 p.m., Eastern Time). Because our Office was closed when Latvian Connection learned of amendment No. 4, and because the solicitation’s closing date was prior to our Office reopening on the following Monday (May 4, 8:30 a.m., Eastern Time), it was impossible for the protester to file its protest prior to the time for receipt of revised proposals. Under these circumstances, where the agency’s actions preclude the possibility of filing a timely challenge to the terms of a solicitation, our Office has held that the timeliness rule of 4 C.F.R. § 21.2(a)(1), which requires protests to be filed prior to the time for receipt of proposals, does not apply; instead, the 10-day rule of 4 C.F.R. § 21.2(a)(2) applies. Immediate Systems Resources, Inc., B-292856, Dec. 9, 2003, 2003 CPD ¶ 227 at 4; Morrison Knudsen Corp., B-247160, Jan. 7, 1992, 92-1 CPD ¶ 35 at 2. Since Latvian Connection’s protest was filed 2 days after it became aware of its basis of protest, in this case the short response time allowed by amendment No. 4, we find that the protest is timely. For the record, we also disagree with the Army’s argument that the protester had constructive knowledge of amendment No. 4 as of April 28, the date the agency posted amendment No. 4 on the AFSI website. The AFSI website is not a government-wide point of entry (GPE) designated for the publication of solicitations. Instead, FedBizOpps has been designated as the GPE--that is, the single point where government business opportunities greater than $25,000 (such as the solicitation here), including synopses of proposed contract actions, solicitations, and associated information, can be accessed electronically by the public. FAR §§ 5.101, 5.101(a)(1), 5.102.4

While offerors are charged with constructive notice of procurement actions published on the GPE, Latvian Connection did not have constructive notice in this instance because AFSI is not the GPE. See DBI Waste Sys., Inc., B-400687, B-400687.2, Jan. 12, 2009, 2009 CPD ¶ 15 at 2.

We next consider whether Latvian Connection was afforded sufficient time in which to prepare a proposal in response to amendment No. 4. The Competition in Contracting Act of 1984 generally requires contracting agencies to obtain full and open competition through the use of competitive procedures, 10 U.S.C. § 2304(a)(1)(A), the dual purpose of which is to ensure that a procurement is open to all responsible sources and to provide the government with the opportunity to receive fair and reasonable prices. Kendall Healthcare Prods. Co., B-289381, Feb. 19, 2002, 2002 CPD ¶ 42 at 6. In pursuit of these goals, a contracting agency must use reasonable methods to publicize its procurement needs and to timely disseminate solicitation documents to those entitled to receive them. Id. Additionally, agencies must provide potential offerors a reasonable opportunity to respond. FAR §§ 5.203(b), 13.003(h)(2); see Sabreliner Corp., B-288030, B-288030.2, Sept. 13, 2001, 2001 CPD ¶ 170 at 6-7. What constitutes a 4 The Army does not argue in response to the protest that this solicitation was exempt from publication on the GPE.

Page 6 B-411489

reasonable opportunity to respond will depend on “the circumstances of the individual acquisition, such as complexity, commerciality, availability, and urgency.” FAR § 5.203(b). As stated above, we find that the protester first became aware of amendment No. 4 on Saturday, May 2, when it spotted the amendment on the AFSI website. The protester states that Friday and Saturday are considered non-business days in Kuwait (where the protester’s representative was located), and that Sunday is considered a business day. Protester’s Email to GAO (Aug. 3, 2014). This means that the protester had less than 2 business days in which to respond to amendment No. 4, specifically to prepare a revised proposal addressing the new sunshade canopy dimensions.5 Under these circumstances, we find that Latvian Connection was not provided sufficient time in which to submit a response to the amendment.6

See Information Ventures, Inc., B-293541, Apr. 9, 2004, 2004 CPD ¶ 81 at 4 (where a December 31, 2003, announcement of the intended award established a response period from potential sources of one-and-a-half business days (until January 5, 2004), we held that the agency did not provide a sufficient time in which to respond).

We next discuss whether Latvian Connection was prejudiced by the Army’s actions.7

5 The Army itself characterizes these revisions as “substantial.” AR at 3 n.2 (“Because of substantial changes to some required canopy dimensions in Amendment 0004, offerors that did not submit revised quotes in response to Amendment 0004 risked having their original quotes deemed nonresponsive . . . .”)

In this regard, the Army acknowledges that it did not notify Latvian Connection when it sent out an email containing a courtesy copy of amendment No. 4 to the original offerors on April 28. AR at 5. The agency argues, however, that Latvian Connection had constructive knowledge of amendment No. 4 by virtue of the fact that the agency posted it on the ASFI website that same day. AR at 5-6. Therefore, the agency contends that Latvian Connection was not prejudiced by the failure of the agency to send it the email that was sent to the original offerors. Id. at 9. Since as set forth above, we find that the protester had less than 2 business

6 The Army’s response to the protest did not specifically address whether the amount of time available to the protester, based on its actual knowledge of the amendment, was adequate to respond to RFP amendment. No. 4. 7 Our Office will not sustain a protest unless the protester demonstrates a reasonable possibility that it was prejudiced by the agency’s actions, that is, unless the protester demonstrates that, but for the agency’s actions, it would have had a substantial chance of receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see Statistica, Inc., v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).

Page 7 B-411489

days to respond to this amendment, we conclude that the protester was prejudiced by the brief response time here. The agency also argues that the protester “contributed” to its non-receipt of amendment No. 4 by incorrectly typing the contract specialist’s email address when it submitted its initial proposal. Id. at 5. As stated above, the Army failed to meet its obligation to publicize the issuance of RFP amendment No. 4 through the GPE. Thus, even if the protester contributed to the agency’s mistaken belief that the protester had not submitted an initial proposal, the protester could have received notice of the amendment through the GPE. For this reason, we conclude that any errors on the part of the protester concerning the email addresses used to transmit its initial proposal were superseded by the agency’s failure to properly publicize RFP amendment No. 4.8

Finally, Latvian Connection argues that the issuance of RFP amendment No. 4 was improper because the Army failed to restrict the procurement to the offerors that submitted initial proposals, as required by FAR § 15.206. Protest at 1. As stated above the solicitation did not specifically address whether the competition would follow FAR part 13 or part 15 procedures. AR at 8. To the extent the protester argues that the agency should have specified that FAR part 15 procedures applied, this was an apparent solicitation impropriety that, to be timely, should have been challenged before initial proposals were due, on April 20. See 4 C.F.R. § 21.2(a)(1). In any event the Army states that it did not receive proposals from any offerors that had not already submitted a proposal in response to the original solicitation. AR at 9; Declaration of Contract Specialist (May 28, 2015) at 2. We therefore find no merit to this aspect of the protest. CONCLUSION AND RECOMMENDATION We find that the Army did not provide Latvian Connection a reasonable time in which to respond to RFP amendment No. 4. We find that the agency’s actions here prejudiced the protester, and contributed to the late receipt of the protester’s proposal. We recommend that the agency reissue amendment No. 4, with sufficient time for offerors to respond, and that the agency evaluate all timely proposals. We

8 Although the protester submitted a proposal in response to RFP amendment No. 4, this proposal was not timely received by the Army. Here too, the agency’s failure to provide Latvian Connection with a copy of the amendment, or to publicize the amendment on the GPE, resulted in the protester lacking an adequate amount of time to prepare its proposal. For this reason, the fact that Latvian Connection submitted a late proposal in response to RFP amendment No. 4 does not affect our conclusion that the Army’s actions here were improper, and that they prejudiced the protester.

Page 8 B-411489

also recommend that the agency reimburse Latvian Connection its costs associated with filing and pursuing the protest. Bid Protest Regulations, 4 C.F.R. § 21.8(d). The protester’s certified claims for costs, detailing the time expended and costs incurred, must be submitted to the agency within 60 days after the receipt of this decision. Id. at § 21.8(f). The protest is sustained Susan A. Poling General Counsel

United States Government Accountability Office Washington, DC 20548

Comptroller General of the United States

Decision Matter of: AeroSage LLC File: B-409627 Date: July 2, 2014 David M. Snyder, for the protester. William D. Robinson, Esq., and Sarah Bloom, Esq., Department of Justice, Bureau of Prisons, for the agency. Frank Maguire, Esq., Paul E. Jordan, Esq., and David A. Ashen, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest is sustained where an agency requested quotations for fuel, with next-day delivery required, via the FedBid reverse auction website, and the protester, the lowest-priced technically acceptable vendor, responded timely and affirmatively to a FedBid “Bid Validation” request, but did not timely respond to the contracting officer’s concurrent shorter-deadline, telephonic request for confirmation, leading the contracting officer to make the award to second lowest-priced vendor. DECISION AeroSage LLC, of Tampa, Florida, protests the Department of Justice, Bureau of Prison’s (BOP) placement of an order with W.G. Pitts Company, Inc., of Jacksonville, Florida, under request for quotations (RFQ) No. DJBP0302NP210047, FedBid Buy No. 594154_02, for next-day delivery of 6,000 gallons of unleaded fuel for the FCC Coleman Federal Prison, Coleman, Florida. The protester asserts that, although it was the lowest-priced, technically acceptable vendor, it was improperly denied award. We sustain the protest. BACKGROUND The RFQ, a small business set-aside, was posted on the FedBid website as a reverse auction on March 11, 2014, with a closing time of 12:00 Noon on March 12, and a delivery time of 9:00 a.m., on March 13. The contracting officer (CO) states:

Page 2 B-409627

It was posted on FedBid because the contract with [the incumbent] had expired and I did not have any sources. The reason the RFQ was open for 1 day is because the Facilities Department informed me that their unleaded fuel status was dangerously low and that they need[ed] to have fuel delivered not later than 3/13/2014. Any later could have jeopardized the [prison’s] daily operation. During my market research of past acquisitions for fuel, I discovered that the delivery of bulk fuel would require at least 24 hours’ notice because of previously scheduled deliveries.

Agency Report (AR), Tab 2, CO’s Statement (COS). AeroSage submitted quotations on March 11 and early on March12, both of which were determined by FedBid to be “lag” quotations, i.e., not the lowest-submitted quotation or not in the acceptable price range. Protest at 1; see FedBid Terms of Use at 2. A short time prior to the 12:00 Noon closing time on March 12, AeroSage submitted a third, lower “auto rebid.” Protest at 1. Shortly after closing, AeroSage received the FedBid system’s email “Bid Validation” request, with a response deadline of 5:00 p.m.1

Protest Exh., FedBid Email, Mar. 12, 2014, 12:03 p.m. Pertinent here, the Bid Validation request directed AeroSage to confirm, by 5:00 p.m. that day, that it could deliver the fuel by March 13, at 9:00 a.m. Id. At 4:36 p.m., AeroSage replied affirmatively to the Validation request via email. Protest Exh., AeroSage Email, March 12, 2014, 4:36 p.m.

During the time after the FedBid Validation request was sent, but before the response was due, the CO advises that “due to the short turn-around time,” he “determined that it was appropriate to contact AeroSage, make an offer, and request acceptance prior to delivery.” COS at 1-2. The record indicates that, after the Noon closing time on March 12, the CO made two telephone calls to AeroSage’s office, at 12:44 p.m. and at approximately 1:45 p.m. Comments at 5. In the second call, the CO directed AeroSage to call back by 2:30 p.m., i.e., within 45 minutes, to confirm delivery and accept the offer. COS at 1-2; Comments at 5. The CO further states that, when AeroSage did not return his call, he “considered that to be a rejection of the Government’s offer” and was “concerned that the Government’s needs would not be met.” COS at 2. He therefore decided to award to the next lowest-priced, technically acceptable vendor, W.G. Pitts, at approximately 3:00 p.m. Id. AeroSage advises that, during the work day on March 12, its office was unattended due to other commitments, but, as indicated above, AeroSage nonetheless 1 A Bid Validation request is “the effort of FedBid to verify and/or confirm Seller’s compliance with Specifications.” FedBid Terms of Use at 1-2.

Page 3 B-409627

retrieved and responded to the FedBid email message. Protest at 1. AeroSage asserts that when its personnel “returned to the office on the evening of March 12, 2014, there were two unclear phone messages saying to call [the CO] for award of the contract. The second message said to call by 2:30 PM ET.” Id. AeroSage called back at approximately 6:30 p.m. on March 12, id. at 2, and left a voice message, again confirming that it would supply the fuel, consistent with all RFQ requirements. COS at 2; Protest at 1-2. The CO notes that AeroSage’s voicemail was left “well after duty hours,” but acknowledges ultimately receiving it at approximately 7:45 a.m. on March 13. COS at 2. W.G. Pitts delivered the fuel by 9:00 a.m. on March 13. Id. at 2. This protest followed. DISCUSSION AeroSage argues that the agency acted improperly in awarding to another vendor after AeroSage submitted the lowest-priced quotation, and committed to meeting all the RFQ requirements, including delivery time. In addition, AeroSage notes that it confirmed its quotation, including its commitment to the delivery terms, within the timeframe established by FedBid in its Bid Validation request. AeroSage argues that the agency acted improperly when it imposed a shorter requirement on AeroSage’s response time after the solicitation closed, and contends that the need for a “short notice” response to a voicemail message was the result of “lack of planning” by the agency. Comments at 2. The agency does not dispute that AeroSage submitted the lowest-priced quotation, or that the company timely responded to the FedBid Bid Validation request by the 5:00 p.m. deadline established in FedBid’s email to AeroSage. Instead, the agency argues that it “attempted to award” to AeroSage, but that AeroSage did not accept the agency’s offer. AR at 3. Specifically, the agency notes that the FAR provides that “[w]hen appropriate, the Contracting Officer may ask the supplier to indicate acceptance of an order by notification to the Government, preferably in writing, as defined in 2.101.” AR at 3, citing FAR § 13.004(b). The agency explains:

Here, due to the extremely small time window during which the BOP required delivery, the CO determined it was in the BOP’s best interest to contact the prospective awardee, confirm their intent to deliver the next morning, and ask that they indicate acceptance by notification of the Government. [citation omitted]. [The CO] determined that, due to the urgency of the requirement, this was a better option than sending

Page 4 B-409627

a purchase order and hoping the contractor would receive it and mobilize in time to render the fuel. [citation omitted].

AR at 4. The agency further maintains that when the CO was unable to contact a representative of the company by telephone, it reasonably interpreted AeroSage’s non-response as a rejection of the BOP’s offer, and issued the order to the next-lowest-priced vendor. Id. at 5. As a preliminary matter, AeroSage and the agency disagree about both the type of procurement that is being conducted here, and how to characterize the two exchanges that took place on March 12--one between AeroSage and FedBid via an email, and the second between AeroSage and the agency via voicemail messages. The agency contends that, although it made use of the FedBid website, its procurement was a request for quotations, and that AeroSage provided a quote, not a bid. The agency, citing Federal Acquisition Regulation (FAR) § 13.004(a), notes in this regard that a quotation is not a submission for acceptance by the government and does not constitute an offer. See Computer Assocs. Int’l, Inc., B-292077.3 et al., Jan. 22, 2004, 2004 CPD ¶163 at 3, aff’d., Computer Assocs. Int’l, Inc.--Recon., B-292077.6, May 5, 2004, 2004 CPD ¶ 110 (quotations submitted in response to an RFQ for issuance of order under Federal Supply Schedule are not offers that may be accepted to form a binding contract). Thus, in the agency’s view, it was appropriately seeking to expedite the vendor’s commitment to deliver, and complete the process of offer and acceptance. While the record reflects that the agency was soliciting quotes and not bids, RFQ at 3; see Kingdomware Technologies, B-405242, Sept. 30, 2011, 2011 CPD ¶ 199 at 2, n.1, the resolution of this issue is immaterial to our analysis. Instead, we simply conclude that the agency unreasonably imposed an additional requirement on this procurement after the solicitation closed. In hosting this reverse auction on its website, FedBid was acting as an agent for the BOP, and it conducted the auction as described in its Terms of Use. Under the FedBid Terms of Use, a request for “Bid Validation” occurs after a solicitation closes, and represents an attempt to seek affirmative confirmation from the vendor (or seller, or “bidder”) that it will honor its commitment.2

Terms of Use at 2-3. Of particular importance here, FedBid’s Validation request in this matter expressly sought a confirmation from AeroSage that the fuel delivery required by this solicitation would take place by 9:00 a.m. the next day, or March 13. AeroSage provided that commitment, and did so within the timeframe established by the FedBid Validation request.

2 In addition, the FedBid terms of use provide that a “Buyer is NEVER obligated to complete the transaction, regardless of the status of the Buy.” Terms of Use at 8.

Page 5 B-409627

While the process established by the BOP’s agent (FedBid) was underway, the CO here imposed a second requirement--in our view, an overlay to the actions underway by FedBid--in which the CO, via voicemail, sought to complete the steps of offer and acceptance (and confirmation of the delivery requirement) during the course of 45 minutes. Thus, the agency’s actions here are analogous to a decision to accelerate the closing time for final revised proposals on the date those proposals are due. This additional requirement for telephonic confirmation was not only unstated in the RFQ, but was inconsistent with the instructions set forth in FedBid’s previously-issued Bid Validation request. AeroSage responded to the Validation request as asked and confirmed its commitment to deliver the fuel the next day; the company had no reason to expect that, separate and apart from this inquiry, there was a later-sent voicemail message waiting that imposed a different requirement (a return telephone call) with a shorter response time. These actions violate a fundamental premise of government procurements: that offerors must be advised of the bases upon which their proposals will be evaluated. H.J. Group Ventures, Inc., B-246139, Feb. 19, 1992, 92-1 CPD ¶ 203 at 4. Specifically, it was unreasonable for the CO to provide AeroSage approximately 45 minutes to respond to a voicemail message, when nothing in the RFQ alerted AeroSage that such a request would be forthcoming and, in fact, AeroSage received (and affirmatively replied to) FedBid’s emailed Bid Validation request with a later deadline. Further, there is nothing in the record suggesting that AeroSage would fail to deliver the fuel as promised: AeroSage submitted a quotation in which it certified that it would comply with all requirements of the RFQ, and the agency points to nothing to cast doubt on AeroSage’s ability or intention to perform.3

In short, the agency here chose the method of, and its agent for, meeting this requirement, and FedBid sought confirmation of the very issue (ability to make timely delivery) that the CO sought to confirm via voicemail messages. Given that

3 To the extent that the CO’s decision not to award to AeroSage was based on a concern that AeroSage would be unable to timely deliver the fuel, see COS at 2, this would appear to be a negative responsibility determination. See FAR § 9.104-1(b). In such case, the CO’s action would have deprived AeroSage, a small business, of its statutory right to have a negative responsibility determination reviewed by the Small Business Administration (SBA) under the Certificate of Competency process. See FAR § 9.104-3(d)(1); see, e.g., Fabritech, Inc., B-298247, B-298247.2, July 27, 2006, 2006 CPD ¶ 112 at 3-6; F & F Pizano Trucking Co., Inc., B-212769, Nov. 30, 1983, 83-2 CPD ¶ 629 at 1-2 (notwithstanding finding of urgency, contacting officer acted improperly in rejecting a small business as nonresponsible without referring the matter to SBA).

Page 6 B-409627

AeroSage responded as requested by FedBid, we think the CO’s actions improperly imposed an additional unstated requirement in this procurement.4

RECOMMENDATION Given that the purchase order here has been fully performed, COS at 2, and other substantive relief is not possible, we recommend that the agency reimburse the protester its quotation preparation costs. 4 C.F.R. § 21.8(d)(2) (2014). We also recommend that the agency reimburse the protester the costs of filing and pursuing its protest. 4 C.F.R. § 21.8(d)(1). The protester should submit its certified claim for costs, detailing the time expended and costs incurred, directly to the contracting agency within 60 days after the receipt of this decision. 4 C.F.R. § 21.8(f)(1). The protest is sustained. Susan A. Poling General Counsel

4 The protester also challenges the agency’s use of FedBid generally; asserts that the RFQ failed to state an appropriate NAICS category size standard; and argues that the awardee would not be eligible under the appropriate size standard. Protest at 1-2. These first two arguments are, essentially, challenges to the terms of the solicitation, filed after closing, and thus are untimely. 4 C.F.R. § 21.2(a)(1). The third argument, AeroSage’s contention that the awardee is ineligible for award as a small business, is a matter within the jurisdiction of the Small Business Administration. 4 C.F.R. § 21.5(b). Finally, the protester asserts that its protest should be sustained since the agency report was submitted one day later than the 30-day due date set for the report by our Office. Comments at 1. There is no provision in our Regulations, however, for sustaining a protest based on a late agency report. Thus, this protest ground does not set forth a basis on which we may grant relief. 4 C.F.R. § 21.1(c)(4).

United States Government Accountability Office Washington, DC 20548

Comptroller General of the United States

Decision Matter of: Latvian Connection, LLC File: B-410947 Date: March 31, 2015 Keven L. Barnes, for the protester. Dennis Gallagher, Esq., Department of State, and Laura Mann Eyester, Esq., Small Business Administration, for the agencies. Cherie J. Owen, Esq., and David A. Ashen, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest is sustained where FedBid, acting as the agent for the contracting agency, excluded the protester, a small business, from the competition based on a perceived lack of business integrity, in effect making a negative responsibility determination, without referring the matter to the Small Business Administration under the Certificate of Competency procedures. DECISION Latvian Connection, LLC, of Kuwait City, Kuwait, challenges its exclusion from the competition under solicitation No. FY15RR0024 (also identified as FedBid Buy No. 693101), issued by the Department of State (DOS) for first aid kits and related medical supplies. Latvian Connection argues that it has been improperly excluded from competing for this procurement, which is being conducted on behalf of the agency by FedBid, Inc. We sustain the protest. BACKGROUND The solicitation, issued on December 19, 2014, and set aside for small businesses, sought a contractor to provide first aid kits and related medical supplies to be used in a training exercise, to be conducted from May 10 to May 28, 2015, with the Jordanian Police Force at the Jordanian International Police Training Center in Jordan. The procurement was conducted through FedBid, a commercial online procurement services provider that operates a website at www.FedBid.com which,

Page 2 B-410947

among other things, hosts reverse auctions. The estimated value of the procurement was approximately $5,000. Agency Report (AR), Tab 1, FedBid Buy Details. The procurement here was being conducted using FedBid’s reverse auction platform. In order to respond to solicitations posted on FedBid, prospective vendors or offerors must have a valid FedBid account. FedBid’s terms of use provide that “FedBid may refuse the Services to any person or any entity at any time, in FedBid’s sole discretion.” http://www.fedbid.com/terms. FedBid suspended the protester’s account on July 8, 2014. Protest, Attach. 9, FedBid Suspension E-mail, July 8, 2014, at 1. In this regard, FedBid provided the protester with the following explanation of the decision to suspend it:

System and Business Integrity: Latvian Connection has taken actions to repeatedly and purposely interfere with FedBid’s business relationships. Right to Terminate: Latvian Connection’s use of the FedBid marketplace demonstrates that Latvian Connection has not used (and does not intend to use) the FedBid marketplace as required in the FedBid Terms of Use.

Id. Since Latvian Connection’s FedBid account was suspended, the firm was unable to compete for the procurement. Latvian Connection filed this bid protest prior to the January 2, 2015 closing date, challenging its inability to compete for this requirement. DISCUSSION Latvian Connection argues that its exclusion from the competition constitutes either a negative responsibility determination, which should have been referred to the Small Business Administration (SBA), or an improper de facto debarment. Interested Party Status As a preliminary matter, DOS contends that Latvian Connection is not an interested party to protest this procurement, arguing that the protester’s mere assertion that it would submit an offer, if permitted to do so, lacks credibility given the firm’s lack of experience in federal government contracting and history of protesting a wide array of procurements. AR at 7. The agency also argues that Latvian Connection’s protest makes no representations to demonstrate that it had the actual capacity or intention to submit an offer. Id.

Page 3 B-410947

Under our Bid Protest Regulations, we will only consider protests filed by an “interested party,” that is, an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. 4 C.F.R. § 21.0(a). Determining whether a party is interested involves consideration of a variety of factors, including the nature of the issues raised, the benefit or relief sought by the protester, and the party’s status in relation to the procurement. Advanced Concept Enterprises, Inc., B-410069.3, B-410069.4 Jan. 22, 2015, 2015 CPD ¶ 53 at 2. Here, we find that Latvian Connection has sufficiently established its status as an interested party. The protester indicates that it has relationships with two medical suppliers and two shipping companies with whom it will team to fulfill the solicitation’s requirements.1

Protester’s E-mail Response to GAO, Jan. 21, 2015. These requirements, again, were estimated to total only approximately $5,000. FedBid Buy Details. In these circumstances, we find that, for this procurement, Latvian Connection has sufficiently established its status as an interested party.

Responsibility Determination Latvian Connection argues that its exclusion from the competition constituted a negative responsibility determination with respect to a small business, which therefore should have been referred to the SBA under its Certificate of Competency (COC) procedures. Protest at 14. The SBA, which submitted comments to our Office in response to the protest, likewise asserts that the actions of DOS and FedBid constituted a de facto nonresponsibility determination, which should have been referred to the SBA under its COC procedures. SBA Comments, Feb. 26, 2015, at 2-5. DOS, however, responds that there was no responsibility determination by the agency here since Latvian Connection never submitted a response to the solicitation and, in any case, FedBid acted to suspend Latvian Connection without direction or encouragement from DOS. AR at 9; Agency Response to SBA’s Comments at 2. Under the Small Business Act, agencies may not find a small business nonresponsible without referring the matter to the SBA, which has the ultimate authority to determine the responsibility of small businesses under its COC

1 According to the agency, Latvian Connection was awarded a purchase order for medical and surgical equipment or supplies in the amount of $113,000 in 2011, but the funds for this contract were later deobligated. AR at 6. The record does not demonstrate the basis for the later deobligation.

Page 4 B-410947

procedures. 15 U.S.C. § 637(b)(7); FAR subpart 19.6; FitNet Purchasing Alliance, B-410263, Nov. 26, 2014, 2014 CPD ¶ 344 at 6-7. In this regard, the Small Business Act provides that it is the SBA’s duty:

To certify to Government procurement officers . . . with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract.

15 U.S.C. § 637(b)(7)(A) (emphasis added). Importantly, this section of the Act also provides that a “Government procurement officer . . . may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration.” Id. Here, Latvian Connection was suspended from use of FedBid. Under FedBid’s rules, therefore, Latvian Connection was ineligible to respond to DOS’s solicitation, and thereby precluded from competing or being awarded a contract. The basis of Latvian’s suspension was the firm’s lack of “System and Business Integrity.” FedBid Suspension E-mail, July 8, 2014, at 1. Although FedBid, a private company, was the entity that precluded Latvian’s ability to compete for the contract, we have previously held that when FedBid hosts a reverse auction on its website, it acts as an agent for the agency conducting the procurement. AeroSage LLC, B-409627, July 2, 2014, 2014 CPD ¶ 192 at 4. As a result, we conclude that the DOS, through its agent, FedBid, precluded Latvian Connection, a small business, from competing for, and potentially being awarded, a contract on the basis of the firm’s integrity, without referring the matter to the SBA. This amounted to a determination of nonresponsibility, which the agency should have referred to the SBA for a COC determination. Therefore, we sustain the protest on this basis. De Facto Debarment Latvian Connection also contends that its suspension constitutes a de facto debarment. Protest at 2. In response, the agency states that

Protester comes closer to the truth than does SBA in characterizing its situation as a [FedBid] de facto debarment . . . . FEDBID has certainly excluded Protester from doing business on the FEDBID reverse auction platform and has indicated its intent to continue this exclusion indefinitely. The impact of this exclusion is plainly similar to a debarment.

Agency Response to SBA’s Comments at 2-3.

Page 5 B-410947

However, as the agency notes, our Office no longer reviews protests that an agency improperly suspended or debarred a contractor from receiving government contracts. Logan, LLC, B-294974.6, Dec. 1, 2006, 2006 CPD ¶ 188 at 7; 4 C.F.R. § 21.5(i). We have instead determined that suspension and debarment matters are properly for review by the contracting agency in accordance with the applicable provisions of the FAR. Logan, LLC, supra; Triton Elec. Enters., Inc., B-294221 et al., July 9, 2004, 2004 CPD ¶ 139 at 2; Shinwha Elecs., B-290603 et al., Sept. 3, 2002, 2002 CPD ¶ 154 at 5. Therefore, we have no jurisdiction to address Latvian’s allegation that its suspension constitutes a de facto debarment. RECOMMENDATION In its comments, the SBA states that if Latvian Connection is denied the opportunity to submit a response to the solicitation, the matter should be referred to the SBA for a COC determination. The record, however, indicates that during the pendency of the protest, the agency elected to override the automatic stay of performance based on urgent and compelling circumstances. Performance Stay Override, January 20, 2015, at 1. Further, the solicitation required delivery of the supplies within 60 days of award. Id. Since performance of the contract is concluded and the protester was not permitted to submit an offer, there is no opportunity to refer Latvian to the SBA for a COC determination here. In these circumstances, we recommend that DOS reimburse the protester the costs of filing and pursuing its protest. 4 C.F.R. § 21.8(d)(1). The protester should submit its certified claim for costs, detailing the time expended and costs incurred, directly to the contracting agency within 60 days after the receipt of this decision. 4 C.F.R. § 21.8(f)(1). The protest is sustained. Susan A. Poling General Counsel

United States Government Accountability Office Washington, DC 20548

Comptroller General of the United States

Decision Matter of: Latvian Connection, LLC File: B-410981 Date: April 6, 2015 Keven Barnes, Latvian Connection, LLC, for the protester. Paul Batlan, Esq., Department of the Interior, for the agency. Cherie J. Owen, Esq., and David A. Ashen, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest is sustained where FedBid, acting as the agent for the contracting agency, excluded the protester, a small business, from the competition based on a perceived lack of business integrity, in effect making a negative responsibility determination, without referring the matter to the Small Business Administration under the Certificate of Competency procedures. DECISION Latvian Connection, LLC, of Kuwait City, Kuwait, protests its exclusion from competition under request for quotations (RFQ) No. 691713, issued by the Department of the Interior, U.S. Geological Survey, for fabrication and installation of mechanical assist mobile shelving system components. Latvian Connection argues that it has been improperly excluded from competing for this procurement, which is being conducted on behalf of the agency by FedBid, Inc. We sustain the protest. BACKGROUND The solicitation, issued on December 11, 2014, and set aside for small businesses, sought a contractor to provide fabrication and installation of a high-density mobile shelving system to replace the current steel cantilever shelving at the U.S. Geological Survey’s library in Denver, Colorado. Agency Report (AR), Tab 5, RFQ, at 1; see Contracting Officer’s Statement (COS) at 1. The estimated value of the procurement was $95,159. COS at 1. The procurement was conducted through

Page 2 B-410981

FedBid, a commercial online procurement services provider that operates a website at www.FedBid.com which, among other things, hosts reverse auctions. The procurement here was being conducted using FedBid’s reverse auction platform. In order to respond to solicitations posted on FedBid, prospective vendors or offerors must have a valid FedBid account. FedBid’s terms of use provide that “FedBid may refuse the Services to any person or any entity at any time, in FedBid’s sole discretion.” http://www.fedbid.com/terms; see also AR at 5 (quoting AR, Tab 3, FedBid Suspension and Reinstatement Policy, at 1). FedBid suspended the protester’s account on July 8, 2014. FedBid Suspension E-mail, July 8, 2014, at 1. In this regard, FedBid provided the protester with the following explanation of the decision to suspend it:

System and Business Integrity: Latvian Connection has taken actions to repeatedly and purposely interfere with FedBid’s business relationships. Right to Terminate: Latvian Connection’s use of the FedBid marketplace demonstrates that Latvian Connection has not used (and does not use) the FedBid marketplace as required in the FedBid Terms of Use.

Protest, Attach. 9, FedBid Suspension E-mail, July 8, 2014, at 1. Since Latvian Connection’s FedBid account was suspended, the firm was unable to compete for the procurement. Latvian Connection filed this bid protest prior to the January 2, 2015 closing date, challenging its inability to compete for this requirement. DISCUSSION Latvian Connection argues that its exclusion from the competition constitutes either a negative responsibility determination, which should have been referred to the Small Business Administration (SBA), or an improper de facto debarment. Interested Party Status As a preliminary matter, DOI contends that Latvian Connection is not an interested party to protest this procurement because Latvian Connection is currently

Page 3 B-410981

suspended by FedBid and has received no awards in procurements conducted using FedBid since its registration with FedBid.1

Under our Bid Protest Regulations, we will only consider protests filed by an “interested party,” that is, an actual or prospective offeror whose direct economic interest would be affected by the award of a contract or the failure to award a contract. 4 C.F.R. §21.0(a). Determining whether a party is interested involves consideration of a variety of factors, including the nature of the issues raised, the benefit or relief sought by the protester, and the party’s status in relation to the procurement. Advanced Concept Enterprises, Inc., B-410069.3, B-410069.4 Jan. 22, 2015, 2015 CPD ¶ 53 at 2. Here, we find that Latvian Connection has sufficiently established its status as an interested party. First, Latvian Connection’s suspension from FedBid cannot provide the basis for concluding that it is not an interested party, since the agency’s use of FedBid to conduct this procurement is the very action that Latvian Connection is challenging. Thus, if the protest were sustained, Latvian Connection could be a potential vendor for this contract. In addition, the protester indicates that if it is permitted to submit a response to the solicitation, it plans to team with two specific small businesses and with a service-disabled veteran-owned small business construction company to fulfill the solicitation’s requirements. Protest at 3. In these circumstances, we find that, for this procurement, Latvian Connection has sufficiently established its status as an interested party. Responsibility Determination Latvian Connection argues that its exclusion from the competition here constituted a negative responsibility determination with respect to a small business, which therefore should have been referred to the SBA under its Certificate of Competency (COC) procedures. Protest at 14. In a recent decision, our Office sustained Latvian Connection’s protest against FedBid’s exclusion of the protester from the competition under a Department of State procurement. In that case, in response to our request for its comments, SBA stated that the actions of FedBid, acting as the agent for the contracting activity, in excluding a potential vendor based on a perceived lack of business integrity, constituted a de facto nonresponsibility determination, which should have been referred to the SBA under its COC 1 The agency further suggests that Latvian Connection is not an interested party here because it did not pursue the matter of its FedBid suspension with either the agency or FedBid. However, Latvian Connection timely raised its concerns regarding the FedBid suspension when it filed this protest on December 30, 2014, prior to the January 2, 2015 due date for receipt of quotations, thereby affording the agency (and FedBid) the opportunity to take timely corrective action as contemplated by our Bid Protest Regulations. See 4 C.F.R § 21.2(a)(1).

Page 4 B-410981

procedures. Latvian Connection, LLC, B-410947, March 31, 2015, 2015 CPD ¶ __ (citing SBA Comments, Feb. 26, 2015, at 2-5). As we noted in our prior decision, under the Small Business Act, agencies may not find a small business nonresponsible without referring the matter to the SBA, which has the ultimate authority to determine the responsibility of small businesses under its COC procedures. 15 U.S.C. § 637(b)(7); FAR subpart 19.6; Latvian Connection, LLC, supra; FitNet Purchasing Alliance, B-410263, Nov, 26, 2014, 2014 CPD ¶ 344 at 6-7. In this regard, the Small Business Act provides that it is the SBA’s duty:

To certify to Government procurement officers . . . with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract.

15 U.S.C. § 637(b)(7)(A) (emphasis added). Importantly, this section of the Act also provides that a “Government procurement officer . . . may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration.” Id. Here, Latvian Connection was suspended from use of FedBid. Under FedBid’s rules, therefore, Latvian Connection was ineligible to respond to DOI’s solicitation, and thereby precluded from competing or being awarded a contract. The basis of Latvian’s suspension was the firm’s lack of “System and Business Integrity.” FedBid Suspension E-mail, July 8, 2014, at 1. Although FedBid, a private company, was the entity that precluded Latvian’s ability to compete for the contract, we have previously held that when FedBid hosts a reverse auction on its website, it acts as an agent for the agency conducting the procurement. AeroSage LLC, B-409627, July 2, 2014, 2014 CPD ¶ 192 at 4. As a result, we conclude that the DOI, through its agent, FedBid, precluded Latvian Connection, a small business, from competing for, and potentially being awarded, a contract on the basis of the firm’s integrity, without referring the matter to the SBA. This amounted to a determination of nonresponsibility, which the agency should have referred to the SBA for a COC determination. Latvian Connection, LLC, supra. Therefore, we sustain the protest on this basis. De Facto Debarment Latvian Connection also contends that its suspension constitutes a de facto debarment. Protest at 4. However, our Office no longer reviews protests that an agency improperly suspended or debarred a contractor from receiving government contracts. Latvian Connection, LLC, supra, at 5; Logan, LLC, B-294974.6, Dec. 1, 2006, 2006 CPD ¶ 188 at 7; 4 C.F.R. § 21.5(i). We have instead determined that

Page 5 B-410981

suspension and debarment matters are properly for review by the contracting agency in accordance with the applicable provisions of the FAR. Logan, LLC, supra; Triton Elec. Enters., Inc., B-294221 et al., July 9, 2004, 2004 CPD ¶ 139 at 2; Shinwha Elecs., B-290603 et al., Sept. 3, 2002, 2002 CPD ¶ 154 at 5. Therefore, we have no jurisdiction to address Latvian’s allegation that its suspension constitutes a de facto debarment. RECOMMENDATION We recommend that the agency revise the ground rules of the procurement to conduct the competition in a manner consistent with the Small Business Act and other procurement laws and regulations. We also recommend that DOI reimburse the protester the costs of filing and pursuing its protest. 4 C.F.R. § 21.8(d)(1). The protester should submit its certified claim for costs, detailing the time expended and costs incurred, directly to the contracting agency within 60 days after the receipt of this decision. 4 C.F.R. § 21.8(f)(1). The protest is sustained. Susan A. Poling General Counsel

9/24/2015 View Details - Assertions | System for Award Management

https://www.sam.gov/portal/SAM/?navigationalstate=JBPNS_rO0ABXdcACJqYXZheC5mYWNlcy5wb3J0bGV0YnJpZGdlLlNUQVRFX0lEAAAAAQApdmlldzp… 1/2

EntityDashboardEntity Overview

Entity Record

Core Data

Assertions

Reps & Certs

POCs

Reports

Service Contract Report

BioPreferred Report

Exclusions

Active Exclusions

Inactive Exclusions

Excluded Family Members 

 

USER NAME 

PASSWORD 

Forgot Username? Forgot Password?

Create an Account

MARAFIE KUWAITIA  GEN. TRADING &  CONT. CO. W  L L

DUNS:  534714688      NCAGE Code:  SAW58    

Status: Act ive

NASER  ABDEL MOHSIN BLDG 7,FLOOR  1,AL SHUHADA  ST,BLOCK  1

MURGAB , 15255  

Expirat ion Date: 02/ 22/ 2016

Purpose  of Regist rat ion: A ll Awards

Review Assertions

 

Current Record

Goods  &  Services:

[Expand All] | [Collapse All]

 NAICS Codes  Selected: 

Primary NAICS

Code

Descript ion

221112 FOSSIL FUEL ELECTRIC POWER GENERATION221121 ELECTRIC BULK POWER TRANSMISSION AND CONTROL221122 ELECTRIC POWER DISTRIBUTION221310 WATER SUPPLY AND IRRIGATION SYSTEMS221320 SEWAGE TREATMENT FACILITIES221330 STEAM AND AIR-CONDITIONING SUPPLY236115 NEW SINGLE-FAMILY HOUSING CONSTRUCTION (EXCEPT FOR-

SALE BUILDERS)236116 NEW MULTIFAMILY HOUSING CONSTRUCTION (EXCEPT FOR-

SALE BUILDERS)236117 NEW HOUSING FOR-SALE BUILDERS236118 RESIDENTIAL REMODELERS236210 INDUSTRIAL BUILDING CONSTRUCTION236220 COMMERCIAL AND INSTITUTIONAL BUILDING CONSTRUCTION237110 WATER AND SEWER LINE AND RELATED STRUCTURES

CONSTRUCTION237120 OIL AND GAS PIPELINE AND RELATED STRUCTURES

CONSTRUCTION237130 POWER AND COMMUNICATION LINE AND RELATED

STRUCTURES CONSTRUCTION237210 LAND SUBDIVISION237310 HIGHWAY, STREET, AND BRIDGE CONSTRUCTION237990 OTHER HEAVY AND CIVIL ENGINEERING CONSTRUCTION238110 POURED CONCRETE FOUNDATION AND STRUCTURE

CONTRACTORS238120 STRUCTURAL STEEL AND PRECAST CONCRETE CONTRACTORS238130 FRAMING CONTRACTORS238140 MASONRY CONTRACTORS238150 GLASS AND GLAZING CONTRACTORS238170 SIDING CONTRACTORS238190 OTHER FOUNDATION, STRUCTURE, AND BUILDING EXTERIOR

CONTRACTORS238210 ELECTRICAL CONTRACTORS AND OTHER WIRING

INSTALLATION CONTRACTORS238220 PLUMBING, HEATING, AND AIR-CONDITIONING CONTRACTORS238290 OTHER BUILDING EQUIPMENT CONTRACTORS238310 DRYWALL AND INSULATION CONTRACTORS238320 PAINTING AND WALL COVERING CONTRACTORS238330 FLOORING CONTRACTORS238340 TILE AND TERRAZZO CONTRACTORS238350 FINISH CARPENTRY CONTRACTORS238390 OTHER BUILDING FINISHING CONTRACTORS238910 SITE PREPARATION CONTRACTORS238990 ALL OTHER SPECIALTY TRADE CONTRACTORS493110 GENERAL WAREHOUSING AND STORAGE532120 TRUCK, UTILITY TRAILER, AND RV (RECREATIONAL VEHICLE)

RENTAL AND LEASING541410 INTERIOR DESIGN SERVICES

9/24/2015 View Details - Assertions | System for Award Management

https://www.sam.gov/portal/SAM/?navigationalstate=JBPNS_rO0ABXdcACJqYXZheC5mYWNlcy5wb3J0bGV0YnJpZGdlLlNUQVRFX0lEAAAAAQApdmlldzp… 2/2

Size  Metrics

EDI Informat ion

Disaster  Response  Informat ion

561110 OFFICE ADMINISTRATIVE SERVICES561210 FACILITIES SUPPORT SERVICES561510 TRAVEL AGENCIES561520 TOUR OPERATORS561612 SECURITY GUARDS AND PATROL SERVICES561621 SECURITY SYSTEMS SERVICES (EXCEPT LOCKSMITHS)

Yes 561720 JANITORIAL SERVICES561730 LANDSCAPING SERVICES561990 ALL OTHER SUPPORT SERVICES562119 OTHER WASTE COLLECTION811111 GENERAL AUTOMOTIVE REPAIR811198 ALL OTHER AUTOMOTIVE REPAIR AND MAINTENANCE

 PSC Codes  Selected: 

PSC Code Descript ion

  

 World Wide: 

 Locat ion (Opt ional): 

 Indust ry-Specific Size  Metrics: 

 Do you wish to enter EDI Information for your non-government entity?    - 

 Do you wish to be included in the Disaster Response Registry? NoGeographic Area  Served:

SAM  |  System  for Award  Management  1.0

Note  to  all Users: This is a Federal Government computer system. Use of thissystem constitutes consent to monitoring at all times.

IBM v1.P.34.20150710-1415

WWW9

9/24/2015 View Details ­ Assertions | System for Award Management

https://www.sam.gov/portal/SAM/?navigationalstate=JBPNS_rO0ABXdcACJqYXZheC5mYWNlcy5wb3J0bGV0YnJpZGdlLlNUQVRFX0lEAAAAAQApdmlldzp… 1/2

EntityDashboardEntity Overview

Entity Record

Core Data

Assertions

Reps & Certs

POCs

Reports

Service Contract Report

BioPreferred Report

Exclusions

Active Exclusions

Inactive Exclusions

Excluded Family Members 

 

USER NAME 

keven95448

PASSWORD 

••••••••••

Forgot Username? Forgot Password?

Create an Account

AL ZOBA CO.

DUNS:  534721803     NCAGE Code:  SW502   

Status: Active

2000 Near Fire Brigade

Shuwaikh,  , 

KUWAIT

Expiration Date: 02/23/2016

Purpose of Registration: All Awards

Review Assertions

 

Current Record

Goods & Services:

Size Metrics

[Expand All] | [Collapse All]

 NAICS Codes Selected: 

Primary NAICS

Code

Description

Yes 236210 INDUSTRIAL BUILDING CONSTRUCTION237110 WATER AND SEWER LINE AND RELATED STRUCTURES

CONSTRUCTION237120 OIL AND GAS PIPELINE AND RELATED STRUCTURES

CONSTRUCTION237130 POWER AND COMMUNICATION LINE AND RELATED

STRUCTURES CONSTRUCTION237990 OTHER HEAVY AND CIVIL ENGINEERING CONSTRUCTION238120 STRUCTURAL STEEL AND PRECAST CONCRETE CONTRACTORS238210 ELECTRICAL CONTRACTORS AND OTHER WIRING

INSTALLATION CONTRACTORS238220 PLUMBING, HEATING, AND AIR­CONDITIONING CONTRACTORS238990 ALL OTHER SPECIALTY TRADE CONTRACTORS423210 FURNITURE MERCHANT WHOLESALERS423310 LUMBER, PLYWOOD, MILLWORK, AND WOOD PANEL

MERCHANT WHOLESALERS423610 ELECTRICAL APPARATUS AND EQUIPMENT, WIRING SUPPLIES,

AND RELATED EQUIPMENT MERCHANT WHOLESALERS423710 HARDWARE MERCHANT WHOLESALERS423930 RECYCLABLE MATERIAL MERCHANT WHOLESALERS424460 FISH AND SEAFOOD MERCHANT WHOLESALERS424480 FRESH FRUIT AND VEGETABLE MERCHANT WHOLESALERS424490 OTHER GROCERY AND RELATED PRODUCTS MERCHANT

WHOLESALERS425120 WHOLESALE TRADE AGENTS AND BROKERS442110 FURNITURE STORES532112 PASSENGER CAR LEASING562910 REMEDIATION SERVICES812320 DRYCLEANING AND LAUNDRY SERVICES (EXCEPT COIN­

OPERATED) 

PSC Codes Selected: 

PSC Code Description

4010 CHAIN AND WIRE ROPE4020 FIBER ROPE, CORDAGE, AND TWINE5630 PIPE AND CONDUIT, NONMETALLIC5680 MISCELLANEOUS CONSTRUCTION MATERIALS3990 MISCELLANEOUS MATERIALS HANDLING EQUIPMENT6850 MISCELLANEOUS CHEMICAL SPECIALTIES5620 TILE, BRICK AND BLOCK4030 FITTINGS FOR ROPE, CABLE, AND CHAIN  

9/24/2015 View Details ­ Assertions | System for Award Management

https://www.sam.gov/portal/SAM/?navigationalstate=JBPNS_rO0ABXdcACJqYXZheC5mYWNlcy5wb3J0bGV0YnJpZGdlLlNUQVRFX0lEAAAAAQApdmlldzp… 2/2

EDI Information

Disaster Response Information

 World Wide: 

 Location (Optional): 

  

 Do you wish to enter EDI Information for your non­government entity?    ­ 

 Do you wish to be included in the Disaster Response Registry? NoGeographic Area Served:

SAM | System for Award Management 1.0

Note to all Users: This is a Federal Government computer system. Use of thissystem constitutes consent to monitoring at all times.

IBM v1.P.34.20150710­1415

WWW9

Tab 3

9/24/2015 FormInfo_new

http://www.dtic.mil/whs/directives/forms/forminfo/forminfopage1959.html 1/1

Form InformationFor assistance see FAQs and Downloading Instructions­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

FORM NUMBER: DD2579TITLE: SMALL BUSINESS COORDINATION RECORD

EDITION DATE: 20150801CANCELLATION DATE:

FORMATS: PLEASE BE ADVISED:DOWNLOAD FORM No link under "FORMATS:" indicates no electronic format is available.

To obtain copies of forms, contact YOUR Military Service or ComponentForms Manager click here.Cancelled forms are not available.

REMARKS:ISSUANCES: DFARS PGI 253­219.70

SPONSOR / POC: AT&LSUB­SPONSOR: DPAP/DARS

NUMBER OF PAGES: 1USERS*: A N AF DCMA

PRESCRIBED OR ADOPTED?: PDISPOSITION: O

SUBJECT GROUP: 4205FORM CONTROLLED: N

MANDATORY PRINT SPECIFICATIONS: NRCS:IRCN:OMB:

PRIVACY ACT IMPLICATIONS: N­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

* All revisions and/or cancellations must be coordinated through these USERS.DISPOSITION: O = Do NOT use previous edition. U = Use previous edition until supply is depleted.

SMALL BUSINESS COORDINATION RECORD

(See DFARS PGI 253.219-70 for form completion instructions.)

1. CONTROL NO. (Optional)

6a. CONTRACTING OFFICER NAME (Last, First, Middle Initial)

d. EMAIL ADDRESS e. TELEPHONE NUMBER (Include Area Code)

4a. PIID

c. OFFICE SYMBOLb. DODAAC

5. SUPPLEMENTARY PIID

b. PIID 2 (If applicable)

3. TOTAL ESTIMATED VALUE (With options)

2. PURCHASE REQUEST/ REQUISITION NO.

7a. ITEM AND/OR SERVICE DESCRIPTION

8. PERIOD OF PERFORMANCE/DELIVERY DATES (Including options)

10. RECOMMENDATION (X all that apply)

11a. MARKET RESEARCH/ACQUISITION PLAN

12. CONSOLIDATED OR BUNDLED (X as applicable)

13. SUBCONTRACTING PLAN REQUIRED (X one)

9. PURPOSE OF COORDINATION (X one)

b. PRODUCT OR SERVICE CODE d. SIZE STANDARDc. NAICS CODE

Initial Coordination Withdrawal Change

100% Partial Competitive

Sole SourceCompetitive Competitive Sole Source

Sole Source%

b. SECTION 8(a) (X one)

c. HISTORICALLY UNDERUTILIZED BUSINESS ZONE (HUBZone) SMALL BUSINESS (X one)

d. SERVICE-DISABLED VETERAN-OWNED SMALL BUSINESS (SDVOSB) (X one)

e. ECONOMICALLY DISADVANTAGED WOMEN-OWNED SMALL

BUSINESS (EDWOSB) SET-ASIDE

f. WOMEN-OWNED SMALL BUSINESS (WOSB) ELIGIBLE

UNDER WOSB PROGRAM SET-ASIDE

h. OTHER THAN FULL AND OPEN COMPETITION NOT

PREVIOUSLY ADDRESSED

c. SMALL BUSINESS PROGRESS PAYMENTS (X one)

i. FULL AND OPEN COMPETITION (Complete block 13)

HUBZONE PRICE EVALUATION PREFERENCE (Ref. FAR 19.1307)

j. MULTIPLE AWARD: Contract

Reserves (FAR 19.5) (List type(s) of small business, e.g., WOSB, SDVOSB)

Delivery/Task Order

g. OTHER SET-ASIDE (Cite authority, e.g., FAR 26.202-1 or 6.208; or DFARS 226.71)

a. SMALL BUSINESS SET-ASIDE (X one)

b. SYNOPSIS REQUIRED (X one)

a. CONSOLIDATED REQUIREMENT (Attach required documentation per DFARS 207.170.)

b. BUNDLED REQUIREMENT (Attach required documentation per FAR 7.107 including benefit analysis.)

Yes

(NOTE: Synopsis not required if <$25,000; see FAR 5.101(a)(1).)

No (Provide FAR 5.202 exception)

Yes

Yes

Yes

Yes No

No

No

No

DD FORM 2579, AUG 2015 Adobe Designer 9.0PREVIOUS EDITION IS OBSOLETE.

14. ACQUISITION HISTORY

a. IS THIS A NEW REQUIREMENT? (X one)

b. PREVIOUSLY CONSOLIDATED OR BUNDLED? (X one)

c. DETAILS OF PREVIOUS AWARD(S) (List details requested in instructions. Attach additional page(s) if necessary.)

Yes (Proceed to Block 15) No (Continue to Blocks a(1) through (10), marking all that apply for the immediately preceding acquisition.)

100% Partial Competitive Sole Source%

(2) SECTION 8(a) (X one)(1) SMALL BUSINESS SET-ASIDE (X one)

Sole SourceCompetitive Competitive Sole Source

(3) HISTORICALLY UNDERUTILIZED BUSINESS ZONE (HUBZone) SMALL BUSINESS (X one)

(4) SERVICE-DISABLED VETERAN-OWNED SMALL BUSINESS (SDVOSB) (X one)

(5) ECONOMICALLY DISADVANTAGED WOMEN-OWNED SMALL

BUSINESS (EDWOSB) SET-ASIDE

(6) WOMEN-OWNED SMALL BUSINESS (WOSB) ELIGIBLE

UNDER WOSB PROGRAM SET-ASIDE

(8) OTHER THAN FULL AND OPEN COMPETITION NOT

PREVIOUSLY ADDRESSED

(9) FULL AND OPEN COMPETITION (Complete block 13)

HUBZONE PRICE EVALUATION PREFERENCE (Ref. FAR 19.1307)

(10) MULTIPLE AWARD: Contract

Reserves (FAR 19.5) (List type(s) of small business, e.g., WOSB, SDVOSB)

Delivery/Task Order

(7) OTHER SET-ASIDE (Cite authority, e.g., FAR 26.202-1 or 6.208; or DFARS 226.71)

NoYes(2) BUNDLED NoYes(1) CONSOLIDATED

15. CONTRACTING OFFICER

a. NAME (Last, First, Middle Initial)

c. SIGNATURE

f. SMALL BUSINESS PROFESSIONAL/SMALL BUSINESS DIRECTOR REMARKS

b. EMAIL ADDRESS

d. DATE SIGNED (YYYYMMDD)

c. SIGNATURE d. DATE SIGNED (YYYYMMDD)

16. SMALL BUSINESS PROFESSIONAL/SMALL BUSINESS DIRECTOR REVIEW

a. NAME (Last, First, Middle Initial)

c. SIGNATURE

b. DATE SIGNED (YYYYMMDD)a. SIGNATURE

b. EMAIL ADDRESS

d. DATE SIGNED (YYYYMMDD) e. DATE ACQUISITION PACKAGE PROVIDED TO SBA (FAR 19.202-1(e)) (YYYYMMDD)

e. SBA PROCUREMENT CENTER REPRESENTATIVE REMARKS

c. CONTRACTING OFFICER REMARKS

Concur

Non-concur

17. SBA PROCUREMENT CENTER REPRESENTATIVE REVIEW

18. CONTRACTING OFFICER REVIEW

a. NAME (Last, First, Middle Initial) b. EMAIL ADDRESSConcur

Non-concur

Concur with PCR recommendation

Reject PCR recommendation

DD FORM 2579 (BACK), AUG 2015

8/14/2015 81­­CONTAINER,REFRIGERA ­ SPE8ED15Q0573 ­ Federal Business Opportunities: Opportunities

https://www.fbo.gov/index?s=opportunity&mode=form&id=39104bd924b781daec30d45c9a26bfba&tab=core&_cview=0 1/2

Solicitation Number:SPE8ED15Q0573

Notice Type:Combined Synopsis/Solicitation

Welcome, Business Development Officer   Accessibility   User Guide   Logout

Original SynopsisAug 13, 201510:05 am

Return To Opportunities List   Watch This Opportunity  

Add Me To Interested Vendors

Synopsis:Added: Aug 13, 2015 10:05 amProposed procurement for NSN 8145015305463 CONTAINER,REFRIGERA:

Line 0001 Qty 1.000 UI EA Deliver To: 0000 HQ HQ ASG KUWAIT By: 0100DAYS ADOApproved source is 1CVY3 6610R500.

The solicitation is an RFQ and will be available at the link provided in this notice.Hard copies of this solicitation are not available. Specifications, plans, ordrawings are not available.

All responsible sources may submit a quote which, if timely received, shall beconsidered.

Quotes may be submitted electronically.

Additional Info:DLA TROOP SUPPORT

Contracting Office Address:332439

Point of Contact(s):Questions regarding this solicitation should be emailed to the buyer listed inblock 5 of the solicitation document which can be found under the AdditionalInformation link.If the Additional Information link does not work, please go tohttps://www.dibbs.bsm.dla.mil/Solicitations/ and type the solicitation number inthe Global Search box.

Return To Opportunities List   Watch This Opportunity  

Add Me To Interested Vendors

GENERAL INFORMATION

Notice Type:Combined Synopsis/Solicitation

Posted Date:August 13, 2015

Response Date:August 20, 2015

Archiving Policy:Automatic, on specified date

Archive Date:September 19, 2015

Original Set Aside:N/A

Set Aside:N/A

Classification Code:81 ­­ Containers, packaging, &packing supplies

NAICS Code:332 ­­ Fabricated Metal ProductManufacturing/332439 ­­ OtherMetal Container Manufacturing

81­­CONTAINER,REFRIGERASolicitation Number: SPE8ED15Q0573Agency: Defense Logistics AgencyOffice: DLA Acquisition LocationsLocation: DLA Troop Support ­ Medical ­ BSM

Notice Details Packages Interested Vendors List Print   Link

8/14/2015 81­­CONTAINER,REFRIGERA ­ SPE8ED15Q0573 ­ Federal Business Opportunities: Opportunities

https://www.fbo.gov/index?s=opportunity&mode=form&id=39104bd924b781daec30d45c9a26bfba&tab=core&_cview=0 2/2

User Guide For Help: Federal Service Desk Accessibility

GAO PRE - AWARD PROTEST DEFENSE LOGISTICS AGENCY

Latvian Connection LLC Al Shareefa Complex – 5

th FL

Kuwait City, Kuwait

Tel: 707 385 9344

August 14, 2015

BY REGISTERED EMAIL

General Counsel

Government Accounting Office

441 G Street, NW

Washington DC 20548

Email: Protests@gao.gov

Attn: Procurement Law Control Group, Room 1139

RE: Pre Award Protest against the Defense Logistics Agency

SOLICITATION No SPE8ED15Q0573

FAILING TO SET ASIDE SOLICITATION WITH VALUE OF $ 3,000 - $ 150,000

FAILING TO PROVIDE SOLE BRAND JUSTIFICATION AND APPROVAL

Dear Procurement Law Group: Latvian Connection LLC, (“ LC LLC”) A U.S. SMALL BUSINESS SAM REGISTERED with

DUNS 534749622CAGE SGM59, submits this PRE- AWARD Protest against the:

Defense Logistics Agency for not setting aside solicitation for U.S. Small Businesses exclusively and violating the Small

Business Act.

State argues that the GAO decision of Latvian Connection General Trading and Construction LLC, B-408633,

Sept. 18, 2013 CPD ¶ 224, applies here. In that case, GAO ruled that FAR 19.000(b) limits the application of FAR

part 19 (dealing with SBA’s small business programs) to acquisitions conducted in the United States (and its

outlying areas). We believe the basis for the GAO’s ruling was that SBA’s regulation were silent on this issue and

therefore, the more specific far regulations controlled.

Heeding this advice, the SBA recently promulgated regulations to address this issue. Specifically, SBA made

wholesale changes to 13 CFR § 125.2 on October 2, 2013. As a result, SBA issued a final rule stating that: “Small

business concerns must receive any award ( including orders, and orders placed against Multiple Award Contracts)

or contract, part of any such award or contract, and any contract for the sale of Government property, regardless of

the place of performance, which the SBA and the procuring or disposal agency determine to be in the interest of:”

13 C.F.R. § 125.2(a)(emphasis added). Likewise, the rule also states that: “Small Business Act requires each

Federal agency to foster the participation of small business concerns as prime contractors and subcontractors in the

contracting opportunities of the Government regardless of the place of performance of the contract.” Id. 125.2

(c)(emphasis added).

Therefore, SBA’s policy and legal interpretation of the Small Business has been incorporated into the regulations. In sum,

according to statute and regulations, small business set asides, regardless of place of performance, are mandatory for

acquisitions valued from $ 3,000 to $ 150,000 We request you invite the SBA to comment please.

Additionally, there is no Justification and Approval for a Sole Brand or Sole Source

¹ ¹In accordance with 4 C.F.R. § 21.1 (c ) (1), the relevant electronic mail address for this protest is

keven.barnes@LatvianConnectionLLC.com ( Representative for the Protester Latvian Connection General Trading and Construction LLC)

CALIFORNIA DUNS 830587791 CAGE 5GLB3

² The Contracting Office for this procurement is DLA TROOP SUPPORT CONSTRUCTION & EQUIPMENT CONTAINERS 700

ROBBINS AVENUE PHILADELPHIA PA 19111-5096 USA Buyer: Joseph Persaud PEPCDBB Tel: 215-737-7133 Email: joseph.persaud@dla.mil

email: Joseph.Persaud@dla.mil

2 | P a g e

GAO PRE - AWARD PROTEST DEFENSE LOGISTICS AGENCY

Per FAR 33.103 Protests to the agency

INTERESTED PARTY STATUS

Our company is a U.S. Small Business and we will have a reasonable chance of winning the Contract if we are

competing against ONLY other U.S. Small Businesses. Therefore, LATVIAN CONNECTION LLC is an actual offeror

that is LOCAL in Kuwait and whose direct economic interest is affected by the award of the Contract and hence, an

interested party. 31 U.S.C. § 3551 (2000); FAR 33.101; 4 C.F.R. § 21.0(a)(2006); Designer Assoc. , Inc.,B-293226, FEB

12, 2004 C.P.D. ¶ 114 at 2.

TIMELINESS OF THIS PROTEST

This is a PRE-Award Protest filed before the bid due in date of Aug 20, 2015. (Exhibits 1)

§ 21.2 Time for filing:

(a)(1) Protests based upon alleged improprieties in a solicitation which are apparent prior to bid opening or the time set for

receipt of initial proposals shall be filed prior to bid opening or the time set for receipt of initial proposals. In

procurements where proposals are requested, alleged improprieties which do not exist in the initial solicitation but which

are subsequently incorporated into the solicitation must be protested not later than the next closing time for receipt of

proposals following the incorporation.

(2) Protests other than those covered by paragraph (a)(1) of this section shall be filed not later than 10 days after the basis

of protest is known or should have been known (whichever is earlier), with the exception of protests challenging a

procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested,

is required. In such cases, with respect to any protest basis which is known or should have been known either before or as

a result of the debriefing, the initial protest shall not be filed before the debriefing date offered to the protester, but shall

be filed not later than 10 days after the date on which the debriefing is held. This pre award protest is filed before bid due

in date of 20 AUG 2015.

FACTUAL GROUNDS OF THE PROTEST

The solicitation SPE8ED15Q0573 was posted on 14 AUG 2015 with a bid due in date of 20 AUG 2015 and was

not set aside for U.S. Small Businesses exclusively. ( Exhibit 1 ) and this solicitation has a value of between $ 3,000 and

$ 150,000. There is no Brand Name or Equal and there is no salient characteristics, characteristics or specifications. This

is a Sole Source and Sole Brand without a Justification and Approval being posted. This is a defective solicitation that

does not have a justification and approval for sole source.

Request of a ruling by the Comptroller General of the United States

LATVIAN CONNECTION LLC specifically requests that the GAO recommend that the solicitation

SPE8ED15Q0573 be conducted as a Lowest Priced, Technically Acceptable solicitation on www.fbo.gov and be

reserved for U.S. Small Businesses exclusively. We also request that drawings, technical specifications, and salient

3 | P a g e

GAO PRE - AWARD PROTEST DEFENSE LOGISTICS AGENCY

characteristics are posted. This should be brand name or equal or DLA should post a J & A as to why this one company

should be awarded this contract without competition. This solicitation is defective and violates the Competition in

Contracting Act, the Small Business Act and the Federal Acquisition Regulations regarding elements of a solicitation and

the salient characteristics and this solicitation lacks specifications.

REQUEST FOR HEARING OR CONFERENCE AND PROTECTIVE ORDER

If the issues in this case cannot be resolved on the basis of the documents requested, then LATVIAN

CONNECTION LLC requests a hearing on all of the matters set forth above. 4 C.F.R. § 21.1 (d)(2008). Latvian

Connection LLC does not request a protective order. GAO - WE EXPRESSLY REQUEST THAT THIS PROTEST NOT

BE EXPIDITED.

LEGAL GROUNDS OF PROTEST

State argues that the GAO decision of Latvian Connection General Trading and Construction LLC, B-408633, Sept.

18, 2013 CPD ¶ 224, applies here. In that case, GAO ruled that FAR 19.000(b) limits the application of FAR part 19

(dealing with SBA’s small business programs) to acquisitions conducted in the United States (and its outlying areas). We

believe the basis for the GAO’s ruling was that SBA’s regulation were silent on this issue and therefore, the more specific

far regulations controlled.

Heeding this advice, the SBA recently promulgated regulations to address this issue. Specifically, SBA made wholesale

changes to 13 CFR § 125.2 on October 2, 2013. As a result, SBA issued a final rule stating that: “Small business concerns

must receive any award ( including orders, and orders placed against Multiple Award Contracts) or contract, part of any

such award or contract, and any contract for the sale of Government property, regardless of the place of performance,

which the SBA and the procuring or disposal agency determine to be in the interest of:” 13 C.F.R. § 125.2(a)(emphasis

added). Likewise, the rule also states that: “Small Business Act requires each Federal agency to foster the participation of

small business concerns as prime contractors and subcontractors in the contracting opportunities of the Government

regardless of the place of performance of the contract.” Id. 125.2 (c)(emphasis added).

Therefore, SBA’s policy and legal interpretation of the Small Business has been incorporated into the regulations. In sum,

according to statute and regulations, small business set asides, regardless of place of performance, are mandatory for

acquisitions valued from $ 3,000 to $ 150,000

REQUEST FOR DOCUMENTS

LATVIAN CONNECTION LLC LLC requests that the following materials be included in the agency

report, pursuant to 4 C.F.R. § 21.1(d)(2008):

Copy of Pre-Solicitation Notice

Copy of Small Business Coordination Record DD FORM 2579

Copy of the Bid Abstract

Copy of the Amendment Amending the solicitation for any reason

REQUEST FOR RELIEF AND CONCLUSION

LATVIAN CONNECTION LLC requests that the Agency take corrective action and issue an Amendment, that

is posted on www.fbo.gov and that this solicitation as a Lowest Priced, Technically Acceptable solicitation that is

reserved for U.S. Small Business concerns exclusively.

4 | P a g e

GAO PRE - AWARD PROTEST DEFENSE LOGISTICS AGENCY

We also request that Latvian Connection LLC be reimbursed the costs of filing and pursuing its protest,

including reasonable protest preparation fees. Bid Protest Regulations 4 C.F.R. § 21.8(d)(1) (2010).

Under the Competition in Contracting Act of 1984, the GAO may recommend that protest costs be reimbursed where

they find that an agency’s action violated a procurement statute or regulation. 31 U.S.C. § 3554(c)(1) (2010). The

GAO’s Bid Protest Regulations provide that, where the contracting agency decides to take corrective action in response to

a protest, the GAO may recommend that the protester be reimbursed the costs of filing and pursuing its protest, including

reasonable attorneys’ fees. 4 C.F.R. § 21.8(e) (2010). The GAO has stated that it “does not mean that costs should be

reimbursed in every case in which an agency decides to take corrective action; rather, a protester should be reimbursed its

costs where an agency unduly delayed its decision to take corrective action in the face of a clearly meritorious protest.

Griner’s-A-One Pipeline Servs., Inc.--Costs, B-255078.3, July 22, 1994, 94-2 CPD ¶ 41 at 5.

The Equal Access to Justice Act (EAJA)[i] provides for the award of attorney fees and other expenses to eligible

individuals and small entities who are parties to certain adversary adjudications in administrative proceedings. An eligible

party may receive an award when the party prevails over the government, unless the government’s position was

substantially justified or special circumstances make an award unjust. Fee provided under the EAJA is limited to $125

per hour. The EAJA applies to adversary adjudications pending or commenced on or after August 5, 1985.

To recover fee under the EAJA, a claimant must show that s/he is a prevailing party. Prevailing party is one who achieves

the benefits s/he sought. To obtain fee under the EAJA a party must also show that:

the lawsuit was a material factor in bringing about the desired result;

the outcome was required by law; and

decision was not a gratuitous act by the government.

If, in adversary adjudication arising from an agency action the demand by the agency is found substantially in excess of

the decision of the adjudicative officer and is unreasonable when compared with the decision, the adjudicative officer

shall award to the party the fees and other expenses against the excessive demand. To claim award under the EAJA party

need not have committed a willful violation of law or otherwise acted in bad faith. Award granted should not be unjust in

any circumstances. Fees and expenses awarded shall be paid only as a consequence of appropriations provided in

advance.[ii]

Fees and other expenses under the EAJA include:

the reasonable expenses of expert witnesses:

the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be

necessary for the preparation of the party’s case; and

reasonable attorney’s or agent fees.[iii]

Every party other than an agency who participated in adversary adjudication can recover attorney’s fee and agent

fee. Party represented by a non attorney is also permitted under the EAJA to recover fee. Award provided under the

5 | P a g e

GAO PRE - AWARD PROTEST DEFENSE LOGISTICS AGENCY

EAJA is mandatory and the agency has no discretion to deny attorney fee provided s/he complies all the requirements

under the EAJA.

However certain state laws also authorizes the recovery of reasonable attorney fees. N.D. Cent. Code § 28-32-50(1)

requires an award of reasonable attorney fees and costs to a prevailing claimant if an administrative agency has acted

without substantial justification. N.D. Cent. Code § 28-32-50(1) sets forth a two-part test which must be met in order to

properly award attorney fees: first, the non administrative party must prevail, and second, the agency must have acted

without substantial justification.[iv]

[i] 5 U.S.C. § 504; 28 U.S.C. § 2412; [ii] 5 U.S.C.A. § 504(a)(4) ; [iii] 5 U.S.C.A. § 504(b)(1)(A); [iv] 5 U.S.C.A. §

504(b)(1)(A), Tedford v. Workforce Safety & Ins., 2007 ND 142 (N.D. 2007).

Respectfully submitted,

__________________________

KEVEN L. BARNES

CEO

LATVIAN CONNECTION LLC