Blog 106 RESPONSE AGAINST USAF MOTION TO DISMISS B-411958 386 ECONS FA5703-15-A- 0001

1. Latvian Connection LLC 1083 Vine St No. 503 Healdsburg, CA 95448 Tel: 011 385 9344 August 28, 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: RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 Dear Ms. Riback; RESPONSE – LATVIAN The Air Force is trying to misstate the Federal Acquisition Regulations beyond what the Agency shall do under FAR 19.202-2 and 19.202-4. The FAR says that the Air Force MUST locate Veteran Owned Small Businesses to the Maximum Extent before issuing solicitations. 19.202-2 Locating small business sources. The contracting officer must, to the extent practicable, encourage maximum participation by small business, veteran- owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns in acquisitions by taking the following actions: (a) Before issuing solicitations, make every reasonable effort to find additional small business concerns, unless lists are already excessively long and only some of the concerns on the list will be solicited. This effort should include contacting the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)). (b) Publicize solicitations and contract awards through the Governmentwide point of entry (see Subparts 5.2 and 5.3). 19.202-4 Solicitation. The contracting officer must encourage maximum response to solicitations by small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns by taking the following actions: (a) Allow the maximum amount of time practicable for the submission of offers. (b) Furnish specifications, plans, and drawings with solicitations, or furnish information as to where they may be obtained or examined. (c) Provide to any small business concern, upon its request, a copy of bid sets and specifications with respect to any contract to be let, the name and telephone number of an agency contact to answer questions related to such prospective contract and adequate citations to each major Federal law or agency rule with which such business concern must comply in performing such contract other than laws or agency rules with which the small business must comply when doing business with other than the Government. RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015

2. 5.202 Exceptions. The contracting officer need not submit the notice required by 5.201 when-- (a) The contracting officer determines that-- (12) The contract action is by a Defense agency and the contract action will be made and performed outside the United States, its possessions, or Puerto Rico, and only local sources will be solicited. (b) The head of the agency determines in writing, after consultation with the Administrator for Federal Procurement Policy and the Administrator of the Small Business Administration, that advance notice is not appropriate or reasonable. What Ms. Marilyn Menjivar did was make a negative determination that U.S. Veteran Owned Small Business Latvian Connection LLC could not have an opportunity to bid. 386 ECONS made a negative determination and did not refer the matter to the Small Business Administration for a Certificate of Competency. Latvian is an interested party and we do have a teaming partner which is allowed under FAR 9.601, 9.602, and 9.603. We however cannot bid if we are not invited to bid. The Air Force has been facing protests against Latvian since 2010 and will continue to face them due to these illegal negative determinations are made. Under the Certificate of Competency, not even the GAO can state that Latvian is not an interested bidder. 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). FAR 19.202-2 and 19.202-4 don’t require we demonstrate that we can perform. They require that we be invited to bid and it will be our choice to seek a teaming partner to work with and our choice to bid or not bid. The Air Force have made an illegal negative determination to excluded Latvian Connection LLC. The GAO stated in the Decision of B-410947 regarding the exclusion of Latvian Connection LLC: 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. RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015

3. 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. The Air Force did not make any such referral in pandering to a foreign contractor and excluding this bidding opportunity from Latvian Connection LLC. The Air Force have violated the Small Business Act. B-410947 – LATVIAN CONNECTION LLC DECISION 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. 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 GAO stated in the Decision of B-410981 regarding the exclusion of Latvian Connection LLC 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. 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 RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015

4. 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 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. 9.601 Definition. “Contractor team arrangement,” as used in this subpart, means an arrangement in which— (1) Two or more companies form a partnership or joint venture to act as a potential prime contractor; or (2) A potential prime contractor agrees with one or more other companies to have them act as its subcontractors under a specified Government contract or acquisition program. 9.602 General. (a) Contractor team arrangements may be desirable from both a Government and industry standpoint in order to enable the companies involved to— (1) Complement each other’s unique capabilities; and (2) Offer the Government the best combination of performance, cost, and delivery for the system or product being acquired. (b) Contractor team arrangements may be particularly appropriate in complex research and development acquisitions, but may be used in other appropriate acquisitions, including production. (c) The companies involved normally form a contractor team arrangement before submitting an offer. However, they may enter into an arrangement later in the acquisition process, including after contract award. 9.603 Policy. The Government will recognize the integrity and validity of contractor team arrangements; provided, the arrangements are identified and company relationships are fully disclosed in an offer or, for arrangements entered into after submission of an offer, before the arrangement becomes effective. The Government will not normally require or encourage the dissolution of contractor team arrangements. Latvian Connection LLC is an interested bidder and we have teaming partners for construction projects. One of those teaming partners is Marafie Kuwaitia and Latvian just prevailed in another case of discrimination by a DoD Agency – the Army in B-411489. 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 RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015

5. 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. 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. 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). LATVIAN WAS PREJUDICED BY THE USAF’s EXCLUSION AND DEFACTO DEBARMENT. B-411489 DEMONSTRATES THAT LATVIAN WAS AN INTERESTED BIDDER IN A CONSTRUCTION PROJECT INVOLVING CONCRETE. B-411489 CONT. Since as set forth above, we find that the protester had less than 2 business days to respond to this amendment, we conclude that the protester was prejudiced by the brief response time here. We find that the agency’s actions here prejudiced the protester, and contributed to the late receipt of the protester’s proposal. 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 RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015

6. 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 ONGOING NEGATIVE DETERMINATIONS CITES SMALL BUSINESS ADMINISTRATION EXHIBIT 7 RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015

7. EXHIBIT 8 USAF FAILED TO CONSULT THE SMALL BUSINESS ADMINISTRATION RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015

8. USAF HAS MADE A PATENT FALSE STATEMENT RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015

9. There are clearly several companies in Kuwait other than Al – Musairi, but since the Air Force in Kuwait continually panders to foreign companies and exhibits these Organizational Conflicts of Interests, then the GAO will hear more of these fabricated lies of the USAF. The Air Force makes another statement that they will disregard Small Business Act requirements in their FAR 19.202-2 and FAR 19.202-4 and FAR 5.202 all direct the contracting officer to located U.S. Small Businesses and Latvian Connection LLC is LOCAL to Kuwait. We have a DUNS and CAGE for Kuwait RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015

10. And the USAF have faced numerous GAO protests from Latvian Connection LLC. 386 ECONS knows Latvian is local as we have visited Ali Al Salem Air Base. Exhibits 9 and 10 were to the very same contracting officer that made a statement about another 386 ECONS protest and so too did her contracting commander in the same protest. 386 ECONS is well aware that Latvian Connection LLC is a LOCAL business and a Veteran Owned Small Business. We have been prejudiced against by the Air Force and illegally excluded without being referred to the Small Business Administration. The 386 ECONS and the USAF are discriminating against Latvian and making an illegal negative determination to exclude us from bidding and violating our statutory right to bid on Federal Contracts. We look forward to the Agency Report and the GAO telling the USAF they may not discriminate against Veterans that are LOCAL and who the USAF should have invited to bid under FAR 19.202-2 and 19.202-4. The current contracting commander confirms the negative determination to exclude Local business and Veteran Owned Small Business Latvian Connection LLC from this competition and other pandering sole sources. RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015

11. REQUEST FOR RELIEF AND CONCLUSION The remedy is simple is that this solicitation needs to be cancelled and a competition be conducted where Latvian Connection LLC is invited to bid. We ask that the GAO refer this protest to the SBA for their comments. Respectfully submitted, Keven L. Barnes Digitally signed by Keven L. Barnes DN: cn=Keven L. Barnes, o=Kuwait Division, ou=Latvian Connection LLC, email=keven.barnes@latvianconne ctionllc, c=KW Date: 2015.08.28 23:35:09 +03'00' __________________________ Keven L. Barnes CEO Latvian Connection LLC RESPONSE TO MTD B-411958 386 ECONS FA5703-15-A-0001 28 AUG 2015