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Robert Acosta violated FAR 19.202-2, 19.202-4, FAR 5.202, CICA, The \n\nSmall Business Act and failed to fill out the new DD form 2579 Small \n\nBusiness Coordination Record. The USAF and Department of Interior \n\nare harming SDVOSB Opportunities.\n - PowerPoint PPT Presentation
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9/26/2015 58DOI LMR Purchase Pursant to Class/Brand Name J&As USAFCENT_Al_Jaber_Turnkey Federal Business Opportunities: Opportunities
https://www.fbo.gov/index?s=opportunity&mode=form&id=714e0f20256ef81ad073a49184b51ed0&tab=core&_cview=0 1/2
Solicitation Number:USAFCENT_Al_Jaber_Turnkey
Notice Type:Award Notice
Welcome, Business Development Officer Accessibility User Guide Logout
Original SynopsisSep 25, 20153:07 pm
Return To Opportunities List
Contract Award Date:September 25, 2015
Contract Award Number:D15PC00212
Contract Award Dollar Amount:$3,429,230.09
Contractor Awarded DUNS:166665245
Contractor Awardee:TRIBALCO, LLC4915 SAINT ELMO AVE STE 501BETHESDAMD208146029US
Synopsis:Added: Sep 25, 2015 3:07 pmUSAFCENT has a requirement to procure brand name Land Mobile Radioequipment and support for AlJaber Air Base, Kuwait.
Contracting Office Address:DOI, Interior Business CenterAcq Services Directorate, Div 3354 S Highway 92Sierra VistaAZ85635US
Point of Contact(s):Acosta, Roberto
GENERAL INFORMATION
Notice Type:Award Notice
Posted Date:September 25, 2015
Response Date:
Archiving Policy:Automatic, 15 days after award date
Archive Date:October 10, 2015
Original Set Aside:N/A
Set Aside:N/A
Classification Code:58 Communication, detection, &coherent radiation equipment
NAICS Code:334 Computer and ElectronicProduct Manufacturing/334220 Radio and Television Broadcastingand Wireless CommunicationsEquipment Manufacturing
58DOI LMR Purchase Pursant to Class/Brand Name J&AsSolicitation Number: USAFCENT_Al_Jaber_TurnkeyAgency: Department of the InteriorOffice: Interior Business CenterLocation: AQD Washington D.C.
Notice Details Packages Interested Vendors List Print Link
9/26/2015 58DOI LMR Purchase Pursant to Class/Brand Name J&As USAFCENT_Al_Jaber_Turnkey Federal Business Opportunities: Opportunities
https://www.fbo.gov/index?s=opportunity&mode=form&id=714e0f20256ef81ad073a49184b51ed0&tab=core&_cview=0 2/2
User Guide For Help: Federal Service Desk Accessibility
Return To Opportunities List
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: ContractReserves (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
YesYes
Yes No
NoNo
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: ContractReserves (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 REVIEWa. 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
POST-AWARD PROTEST AGAINST DEPT OF INTERIOR and USAFCENT
USAFCENT_Al_Jaber_Turnkey
Latvian Connection LLC Shareefa Complex 5
th Floor
Kuwait City, Kuwait
Tel: 001 965 5144 2103
September 26, 2015
BY REGISTERED EMAIL
General Counsel
Government Accounting Office
441 G Street, NW
Washington DC 20548
Email: [email protected]
Attn: Procurement Law Control Group, Room 1139
RE: Post-Award Protest against the Department of the Interior RFQ USAFCENT_Al_Jaber_Turnkey
VIOLATING COMPETITION IN CONTRACTING ACT
VIOLATING SMALL BUSINESS ACT
VIOLATING FAR 19.202-2, 19.202-4, 5.202
VIOLATING DFARS 219.201 and DD Form 2579 Revised Aug 1, 2015
Dear Procurement Law Group:
Latvian Connection General Trading and Construction LLC, (― LC LLC‖), Shareefa Complex, 5th Floor, Kuwait City,
Kuwait, tel: [001 965 5012 2072].
Email: [[email protected]]¹ , a SAMS Registered company ( DUNS 830587791 and CAGE
5GLB3, with a LOCAL office in the Middle East in Kuwait, DUNS 534749622 and CAGE SGM59 submits this Post-
Award Protest against the Dept of Interior’s sole source contract award that circumvented the Competition in Contracting
Act and fails to have a subcontracting plan or give LOCAL to Kuwait, Latvian Connection LLC a chance to compete on
the solicitation and fails to allow Latvian Connection LLC to bid. This is a defective contract award as there is no
Justification and Approval to circumvent CICA for this $ 3.4 Million contract award. ( EXHIBIT 1 )
In enacting CICA, Congress explained: “Effective competition is predicated on advance procurement planning and an
understanding of the marketplace.” S. Rep. No. 50, 98th Cong., 2d Sess. 18 (1984), reprinted in 1984 U.S.C.C.A.N. 2191. The
Senate Report also quoted with approval the following testimony regarding the need for advance planning:
Opportunities for obtaining or improving competition have often been lost because of untimely, faulty, or the total lack of
advance procurement planning. Noncompetitive procurement or inadequate competition also has resulted many times from
the failure to develop specifications . . . . By requiring effective competition, Congress will serve notice on the agencies that
they will need to do more than the minimum to comply with the statute. S. Rep. No. 50, 98th Cong., 2d Sess. 19 (1984),
reprinted in 1984 U.S.C.C.A.N. 2192. Finally, in interpreting this statutory requirement, our Office has noted that contracting
officials have a duty to promote and provide for competition and to obtain the most advantageous contract for the
government. Precision Logistics, Inc., B-271429, July 18, 1996, 96-2 CPD ¶ 24 at 5; National Aerospace Group, Inc., B-282843,
Aug. 30, 1999, 99-2 CPD ¶ 43. In other words, contracting officials must act affirmatively to obtain and safeguard competition;
they cannot take a passive approach and remain in a sole-source situation when they could reasonably take steps to enhance
competition. Here, the Army's actions over the past several years fail to comply with CICA's statutory mandate for
reasonable advance planning. (HEROS, Inc., B-292043, June 9, 2003)
The DEPT OF INTERIOR and USAF have also violated FEDERAL ACQUISITION POLICY 219.201 regarding the
Newly revised DD Form 2579, Small Business Coordination Record. ( EXHIBIT 2 )
The DD Form Small Business Coordination Record has been revised to include the latest changes as a result of new
legislation and regulatory requirements. IAW DFARS 219.201 (c )(10)(B), Contracting Officers are to obtain Small
Business Specialist review and coordination on most procurements over $ 10,000.00 ( Ten Thousand Dollars ) and the
review is to be documented on the DD Form 2579. The form has undergone major changes in content and design making
it more comprehensive and useful tool to summarize small business considerations made in developing the procurement
stategy. Use of the new form is effective as of August 1, 2015.
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¹ In accordance with 4 C.F.R. § 21.1 (c ) (1), the relevant electronic mail address for this protest is
[email protected] ( Representative for the Protester Latvian Connection General Trading and Construction
LLC)
² The Contracting Officer for this procurement is Brandon Hill of the Department of the Interior, DOI, Interior Business
Center, Acq Services Directorate, Div 3, 354 S Highway 92, Sierra Vista, AZ, 85635 with Contracting Representative Roberto Acosta
whose FBO posting does not have his contact information.
Per FAR 33.103 Protests to the agency
(2) Latvian Connection LLC
Shareefa Complex
Kuwait City, Kuwait
Representative of Protester: Keven Barnes, CEO
Email – [email protected] The U.S. Government Accountability Office (―GAO‖) should sustain this protest, stay the performance of the
Contract, and direct the Department of the Interior to compete the solicitation in Full and Open Competition and to abide
by the Federal Acquisition Regulations as it pertains to Service Disable Veteran Owned Small Business, Latvian
Connection LLC.
INTERESTED PARTY STATUS
As discussed below LC LLC seeks to compete for the contract that the proposed RFQ (Exhibit 1). Latvian
Connection LLC incorporates all the below facts and (Exhibits) into this ―Interested Party Status‖ section. Further, if this
protest is sustained and Department of the Interior evaluates Latvian Connection’s proposal, then LC LLC, a SDVOSB,
responsible offeror – will have a reasonable chance of winning the Contract. Therefore, Latvian Connection LLC is an
actual offeror 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. This is a Pre-Award Protest.
TIMELINESS OF THIS PROTEST
The Post-Award protest against the Department of the Interior’s Interior Business Center, Acq Services
Directorate, Div 3, 354 S Highway 92, Sierra Vista, AZ, 85635 for RFQ USAFCENT_Al_Jaber_Turnkey, a solicitation
that was never posted; never had a pre-solicitation posted; never had solicitation documents poste, but did have a sole
source contract award, D15PC00212, dated September 25, 2015 www.fbo.gov and this protest is timely if:
§ 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. This is a post-award protest and this is filed within 10 days of constructive notice of
the contract award that circumvented CICA and the Small Business Act.
FACTUAL GROUNDS OF THE PROTEST
1. The RFQ
The Department of Interior failed to conduct a solicitation for RFQ USAFCENT_Al_Jaber_Turnkey. There
was no Pre-Solicitation posted; no solicitation was posted and there was no Justification and Approval posted.
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II. Latvian Connection LLC’s Proposal This is a post-award protest for failure to follow CICA
Latvian Connection LLC, a Small Business Administration registered company that is a Service Disabled
Veteran-Owned Business (SDVOSB), should be competing under the Competition in Contracting Act ( of the United
States GAO ) and in a Fair and Open Competition. The Dept of Interior have failed to follow Federal Law and statutes and
purposely ignored the requirements of the Competition in Contracting Act.
Request of a ruling by the Comptroller General of the United States
Latvian Connection LLC (SDVOSB) specifically requests that the GAO level Post-Award protest be referred to the Small
Business Administration for their review due to Latvian Connection LLC being a Small Business and an American Business
that is once again being prejudice from bidding by the Department of Defense’s failure to follow the Procurement Laws and
Regulations of the United States. Latvian Connection LLC also requests that the Comptroller General of the United States
ruling be made about the Post-Award protest of Solicitation RFQ USAFCENT_Al_Jaber_Turnkey and ask the
Department of the Interior and the USAF contingency operation take corrective action. Latvian Connection LLC is a
Service Disabled Veteran Owned U.S. Small Business and is LOCAL to Kuwait.
The Competition in Contracting Act states:
In enacting CICA, Congress explained: “Effective competition is predicated on advance procurement planning and an
understanding of the marketplace.” S. Rep. No. 50, 98th Cong., 2d Sess. 18 (1984), reprinted in 1984 U.S.C.C.A.N. 2191. The
Senate Report also quoted with approval the following testimony regarding the need for advance planning:
Opportunities for obtaining or improving competition have often been lost because of untimely, faulty, or the total lack of
advance procurement planning. Noncompetitive procurement or inadequate competition also has resulted many times from
the failure to develop specifications . . . . By requiring effective competition, Congress will serve notice on the agencies that
they will need to do more than the minimum to comply with the statute. S. Rep. No. 50, 98th Cong., 2d Sess. 19 (1984),
reprinted in 1984 U.S.C.C.A.N. 2192. Finally, in interpreting this statutory requirement, our Office has noted that contracting
officials have a duty to promote and provide for competition and to obtain the most advantageous contract for the
government. Precision Logistics, Inc., B-271429, July 18, 1996, 96-2 CPD ¶ 24 at 5; National Aerospace Group, Inc., B-282843,
Aug. 30, 1999, 99-2 CPD ¶ 43. In other words, contracting officials must act affirmatively to obtain and safeguard competition;
they cannot take a passive approach and remain in a sole-source situation when they could reasonably take steps to enhance
competition. Here, the Army's actions over the past several years fail to comply with CICA's statutory mandate for
reasonable advance planning. (HEROS, Inc., B-292043, June 9, 2003)
Under CICA, 41 U.S.C. sect. 253(a)(1)(A), contracting officers have a duty to promote and provide for
competition and to provide the most advantageous contract for the government. In their role of promoting
and providing for competition, contracting officials must act affirmatively to obtain and safeguard
competition; they cannot take a passive approach and remain in a noncompetitive position where they
could reasonably take steps to enhance competition. VSE Corp., Johnson Controls World Servs., Inc., B-
290452.3 et al., May 23, 2005, 2005 CPD para. 103 at 8; HEROS, Inc., B-292043, June 9, 2003, 2003
CPD para. 111 at 7; National Aerospace Group, Inc., B-282843, Aug. 30, 1999, 99-2 CPD para. 43 at 8.
See also S. Rep. No. 98-50, at 18 (1984), reprinted in 1984 U.S.C.C.A.N. 2174, 2191 (stating that CICA
requires agencies to “make an affirmative effort to obtain effective competition”). CICA further provides
that under no circumstance may noncompetitive procedures be used due to a lack of advance planning by
contracting officials. 41 U.S.C. sect. 253(f)(5)(A); Signals & Sys., Inc., B-288107, Sept. 21, 2001, 2001
CPD para. 168 at 9. Although the requirement for advance planning is not a requirement that such
planning be successful or error-free, see Abbott Prods., Inc., B-231131, Aug. 8, 1988, 88-2 CPD para.
119, at 8, the advance planning must be reasonable. Signals & Sys., Inc., supra, at 13. Here, we conclude
that the agency has failed to comply with the CICA mandate for reasonable advance planning.
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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). LC LLC does not request a protective
order.
LEGAL GROUNDS OF PROTEST
I. There is Overwhelming Evidence of Latvian Connection LLC that the Department of Interior and the United
States Air Force are VIOLATING THE COMPETITION IN CONTRACTING ACT and Small Business Act
The DEPT OF INTERIOR and USAF have also violated FEDERAL ACQUISITION POLICY 219.201 regarding the
Newly revised DD Form 2579, Small Business Coordination Record. ( EXHIBIT 2 )
The DD Form Small Business Coordination Record has been revised to include the latest changes as a result of new
legislation and regulatory requirements. IAW DFARS 219.201 (c )(10)(B), Contracting Officers are to obtain Small
Business Specialist review and coordination on most procurements over $ 10,000.00 ( Ten Thousand Dollars ) and the
review is to be documented on the DD Form 2579. The form has undergone major changes in content and design making
it more comprehensive and useful tool to summarize small business considerations made in developing the procurement
stategy. Use of the new form is effective as of August 1, 2015.
The Revised DD Form 2579 ( AUG 2015 ) has the following ( Exhibit 2 )
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II. Latvian Connection LLC has been Prejudiced
Prejudice requires a reasonable likelihood that Latvian Connection LLC would have been awarded the Contract if we
had been allowed the opportunity to bid had the solicitation been conducted under the Competition in Contracting Act
and the Small Business Act, then Latvian Connection LLC would have a reasonable chance of being awarded the
contract.
Such a determination is not susceptible to a precise mathematical calculation; rather, prejudice requires only that ―but
for the agency’s actions, the protestors would have had a reasonable chance of receiving the award. Anthem Alliance
for Health, Inc., TRICARE Management Activity – Reconsideration, B-278189.5, July 13, 1998, 98-2 CPD 66. A
reasonable possibility of prejudice therefore is sufficient to sustain the protest. United Int’l. Eng’g., Inc., B-245448.3,
Jan 29, 1992, 92-1 C.P.D. ¶ 122. Europe Displays, Inc., B-297099. The fact that 39 CONS of Incirlik Air Base have
not conducted the solicitation (Exhibit 1 ) under the Congressionally mandated Competition in Contracting Act –
Latvian Connection LLC has been prejudiced.
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REQUEST FOR DOCUMENTS
Latvian Connection LLC requests that the following materials be included in the agency report, pursuant to 4
C.F.R. § 21.1(d)(2008):
All Market Research regarding Local Small Businesses in Kuwait per FAR 19.202-2 and 19.202-4
The SAM.gov List of Small Businesses in the Middle East
Signed DD Form 2579, Small Business Coordination Record ( Revised AUG 2015 )
Bid Abstract and Evaluations
All emails, memo for record, regarding this solicitation
All documents that refer or relate to the efforts to obtain competition from U.S. Registered Small
Businesses in the Middle East and the United States.
All documents that refer or relate to the efforts to increase competition
All documents that refer or relate to the Contracting Officer’s Market Research
REQUEST FOR RELIEF AND CONCLUSION
SDVOSB Latvian Connection LLC requests that the Dept of Interior and USAF to conduct the RFQ in accordance with
the Competition in Contracting Act, the Small Business Act and the Federal Acquisition Regulations.
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.
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).
Current through Pub. L. 113-31. (See Public Laws for the current Congress.)
(a)
(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees
and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency
finds that the position of the agency was substantially justified or that special circumstances make an award unjust.
Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative
record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.
(2) A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary
adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive
an award under this section, and the amount sought, including an itemized statement from any attorney, agent, or expert
witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and
other expenses were computed. The party shall also allege that the position of the agency was not substantially justified.
When the United States appeals the underlying merits of an adversary adjudication, no decision on an application for fees
and other expenses in connection with that adversary adjudication shall be made under this section until a final and
unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally
determined pursuant to the appeal.
(3) The adjudicative officer of the agency may reduce the amount to be awarded, or deny an award, to the extent that the
party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final
resolution of the matter in controversy. The decision of the adjudicative officer of the agency under this section shall be
made a part of the record containing the final decision of the agency and shall include written findings and conclusions
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and the reason or basis therefor. The decision of the agency on the application for fees and other expenses shall be the
final administrative decision under this section.
(4) If, in an adversary adjudication arising from an agency action to enforce a party’s compliance with a statutory or
regulatory requirement, the demand by the agency is substantially in excess of the decision of the adjudicative officer and
is unreasonable when compared with such decision, under the facts and circumstances of the case, the adjudicative officer
shall award to the party the fees and other expenses related to defending against the excessive demand, unless the party
has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust.
Fees and expenses awarded under this paragraph shall be paid only as a consequence of appropriations provided in
advance.
(b)
(1) For the purposes of this section—
(A) ―fees and other expenses‖ includes 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 or agent fees (The amount of fees awarded under this section shall be based upon prevailing
market rates for the kind and quality of the services furnished, except that
(i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid
by the agency involved, and
(ii) attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that
an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the
proceedings involved, justifies a higher fee.);
(B) ―party‖ means a party, as defined in section 551 (3) of this title, who is
(i) an individual whose net worth did not exceed $2,000,000 at the time the adversary adjudication was initiated, or
(ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or
organization, the net worth of which did not exceed $7,000,000 at the time the adversary adjudication was initiated, and
which had not more than 500 employees at the time the adversary adjudication was initiated; except that an organization
described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501 (c)(3)) exempt from taxation under
section 501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act
(12 U.S.C. 1141j (a)), may be a party regardless of the net worth of such organization or cooperative association or for
purposes of subsection (a)(4), a small entity as defined in section 601;
(C) ―adversary adjudication‖ means
(i) an adjudication under section 554 of this title in which the position of the United States is represented by counsel or
otherwise, but excludes an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or
renewing a license,
(ii) any appeal of a decision made pursuant to section 7103 of title 41 before an agency board of contract appeals as
provided in section 7105 of title 41,
(iii) any hearing conducted under chapter 38 of title 31, and
(iv) the Religious Freedom Restoration Act of 1993;
(D) ―adjudicative officer‖ means the deciding official, without regard to whether the official is designated as an
administrative law judge, a hearing officer or examiner, or otherwise, who presided at the adversary adjudication;
(E) ―position of the agency‖ means, in addition to the position taken by the agency in the adversary adjudication, the
action or failure to act by the agency upon which the adversary adjudication is based; except that fees and other expenses
may not be awarded to a party for any portion of the adversary adjudication in which the party has unreasonably
protracted the proceedings; and
(F) ―demand‖ means the express demand of the agency which led to the adversary adjudication, but does not include a
recitation by the agency of the maximum statutory penalty
(i) in the administrative complaint, or
(ii) elsewhere when accompanied by an express demand for a lesser amount.
(2) Except as otherwise provided in paragraph (1), the definitions provided in section551 of this title apply to this section.
(c)
(1) After consultation with the Chairman of the Administrative Conference of the United States, each agency shall by rule
establish uniform procedures for the submission and consideration of applications for an award of fees and other
expenses. If a court reviews the underlying decision of the adversary adjudication, an award for fees and other expenses
may be made only pursuant to section 2412 (d)(3) of title 28, United States Code.
(2) If a party other than the United States is dissatisfied with a determination of fees and other expenses made under
subsection (a), that party may, within 30 days after the determination is made, appeal the determination to the court of the
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USAFCENT_Al_Jaber_Turnkey
United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication.
The court’s determination on any appeal heard under this paragraph shall be based solely on the factual record made
before the agency. The court may modify the determination of fees and other expenses only if the court finds that the
failure to make an award of fees and other expenses, or the calculation of the amount of the award, was unsupported by
substantial evidence.
(d) Fees and other expenses awarded under this subsection shall be paid by any agency over which the party prevails from
any funds made available to the agency by appropriation or otherwise.
(e) The Chairman of the Administrative Conference of the United States, after consultation with the Chief Counsel for
Advocacy of the Small Business Administration, shall report annually to the Congress on the amount of fees and other
expenses awarded during the preceding fiscal year pursuant to this section. The report shall describe the number, nature,
and amount of the awards, the claims involved in the controversy, and any other relevant information which may aid the
Congress in evaluating the scope and impact of such awards. Each agency shall provide the Chairman with such
information as is necessary for the Chairman to comply with the requirements of this subsection.
(f) No award may be made under this section for costs, fees, or other expenses which may be awarded under section 7430
of the Internal Revenue Code of 1986.
Respectfully submitted,
__________________________
Keven L. Barnes
CEO
Latvian Connection LLC
SDVOSB
