400 Bad Request 400 Bad Request nginx/1.2.9

1

Latvian Connection LLC Shareefa Complex 5th Floor Kuwait City, Kuwait Tel: 001 965 950 50 775 May 16, 2013

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: Pre-Award Protest against the Department of Information Systems Agency ( DITCO) against the following

solicitations: WS01APR1345451 – 15MB KUWAIT CITY TO CONTRACTOR CLOUD WS01APR1345450 – 15MB KUWAIT EMBASSY KUWAIT TO CONTRACTOR CLOUD WS01APR135448 – 25MB KUWAIT NAVAL BASE TO CONTRACTOR CLOUD WS01APR135448 – 25MB KUWAIT NAVAL BASE TO CONTRACTOR CLOUD WS01APR135449 – 25MB VPLS LSA SPEARHEAD KUWAIT TO CONTRACTOR CLOUD WS05APR135487 – W6G1 VPLS CLOUD KUWAIT LISTING VARIOUS SITES TO CONTRACTOR CLOUD

KUWAIT ( LOGICAL W6G1) WS01APR135446 – 155.52 VPLS ARIFJAN KUWAIT TO CONTRACTOR CLOUD KUWAIT 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 Kuwait, DUNS 534749622 and CAGE SGM59 submits this Pre- Award Protest against Department of the Army’s -purchase that is in excess of $ 3,000 in value ( Exhibit 1) and under the Simplified Acquisition Threshold of $150,000 inside the United States and $1,000,000 outside the United States ( FAR 2.101 – Exhibit 3) The Department of Information Systems Agency’s solicitation has a value far in excess of $ 3,000.00, but less than $ 150,000.00 ( Exhibit 1 ), yet will not set-aside the solicitation for Small Business. Since both the office of DITCO ( Bahrain) is located overseas, and the performance is in Kuwait, they are in contingency operations, then FAR 2.101 applies for Small Businesses. ( Exhibit 3 ) b. Increased simplified acquisition threshold. Once a contingency operation has been declared, an agency head may increase the SAT from $150,000 to $300,000 for purchases inside the United States and $1 million for purchases outside the United States, when those supplies or services are used to support the contingency operation. Increasing this threshold will also raise the small business set-aside thresholds. (See FAR 2.101 Exhibit 3) This GAO Pre-Award protest will address the recently approved and enacted 112th Congress’ SMALL BUSINESS CONTRACTING ACT of 2012 and the fact that there are no exclusions or restrictions to the Act. FAR 19.601 (e) specifically states: (e) Contracting officers, including those located overseas, are required to comply with this subpart for U.S. small business concerns. This Pre-Award protest will show the legal opinions already given by Small Business Administration lawyer, Mrs. Laura Mann Eyester B-407391( Exhibit 20 ) where the SBA Senior Attorney Mrs. Mann Eyester and SBA Associate General Counsel John W. Klein have stated: 48 C.F.R. § 2.101 The Small Business Act states that small business set-asides are mandatory for the acquistition of supplies and services valued from $ 2,500 to $ 100,000. 15 U.S.C. § 644 (j)(1). However 41 U.S.C. § 431a(a) (1) states that the “Federal Acquisition Regulatory[FAR] Council shall adjust each acquisition-related dollar threshold provided by law, as described in subsection (c) of this section to the baseline constant dollar value of that threshold.” The FAR Council published a final rule on August 30, 2012, which implemented these inflationary adjustments. 75 Fed. Reg. 53129. As a result of 41 U.S.C. § 431a and the final rule, the FAR now states:

2 | P a g e (a) Before setting aside an acquisition under this paragraph, refer to 19.203(b). Each acquisition of

supplies or services that has an anticipated dollar value exceeding $ 3,000 ($15,000 for acquisitions as described in 13.201(g)(1), but not over $ 150,000 ( $ 300,000 for acquisitions described in paragraph (1) of the Simplified Acquisition Threshold definition at 2.101), is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery. If the contracting officer does not proceed with a small business set-aside and purchases on an unrestricted basis, the contracting officer shall include in the contract file the reason for this unrestricted purchase. If the contracting officer receives only one acceptable offer from a responsible small business concern in response to a set-aside, the contracting officer should exclusively for the small business concerns unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with market prices and are competitive with regard to quality and delivery of the goods and services being purchased. (Exhibit 20 pg 2-3)

Public Law 95-907, Federal Acquisition Regulations, Memos from the President; the Office of the Under Secretary of Defense; 112th Congress; and the legal opinion of the Small Business Administration’s lawyer all support that there is a mandatory set-aside for all solicitations with a value between $ 3,000 and $ 150,000 that does apply to DITCO and these 7 solicitations and their performance in Kuwait. ( Exhibit 1) These solicitations have only been in FEDBIZOPPS since May 11, 2013 and the contracting officer, who has not listed an email address and only a DSN number that cannot be dialed by Commerial lines, had to be researched on the internet and written to for copies of the solicitations, which was refused and making it necessary to file this Pre-Award protest. On July 11, 2012,(Exhibit 15) the Director of Defense Procurement and Acquisition Policy, USD(AT&L), and the Office of Small Business Programs issued a memo to remind the Department Heads of DoD Agencies, and other Defense Agency heads of the statutory requirement to automatically set aside contracts for small business when the anticipated contract value is at or below the simplified acquisition threshold (SAT) but exceeds the micro-purchase threshold unless the “rule” of 2 is not met, and also requested efforts be taken to ensure this requirement is consistently followed ( Attachment 1) Latvian Connection LLC believes also that an Agency overseas does not have the option to not set-aside solicitations when there is set-aside competition in the area of the Middle East. Because Latvian Connection LLC is a Veteran Owned Small Business ( VOSB ) it specifically requests that this GAO Pre-Award protest be referred to the Small Business Administration for their review and comment. ___________________________________________________________________________________________________________ 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 Paul Heard ( CIV ) and Contracting Branch Chief, Lori Walker, Department of Information Systems Agency ( DITCO) address is listed in FBO as PSC 851, Box 130 FPO AE, and the email address for Mr. Heard is [email protected] and the phone number for Ms. Walker is 00 973 1785 6228 ( BAHRAIN COUNTRY CODE )

3 | P a g e The General Counsel U.S. Government Accountability Office May 16, 2013 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 against these 7 concealed solicitation documents and stay the performance of these Contracts, and direct the Department of Information Systems Agency’s (DITCO) to release this solicitations and to set-aside this solicitation exclusively for U.S. Small Business since this has a value between $ 3,000 and under the overseas contingency operations threshold of $ 1 million according to Federal Acquisition Regulations 2.101, 19.601, 19.502-1, 19.502-2, 19.502-4, 19.502-5, PUBLIC LAW 95-907, and the Small Business Contracting Act of 2012. Latvian Connection LLC is allowed under FAR 9.601 to form teaming agreements and to locate companies that are not SAM.gov registered to perform this contract. SAM.gov is the replacement system of CCR registration and is a work in progress. Mr. Heard would be aware if he looked, that Latvian Connection LLC is SAM.gov registered Veteran Owned company both in California and Kuwait.

INTERESTED PARTY STATUS

As discussed below LC LLC seeks to compete for these contracts that the proposed RFQ, but the solicitation documents withheld (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 Information Systems Agency’s (DITCO) evaluates Latvian Connection’s proposal that is exclusively limited to Small Business Set-Asides, then LC LLC, a VOSB, 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.

TIMELINESS OF THIS PROTEST

The Pre-Award protest against the Department of Information Systems Agency’s (DITCO)’s RFQs are:

WS01APR1345451 – 15MB KUWAIT CITY TO CONTRACTOR CLOUD WS01APR1345450 – 15MB KUWAIT EMBASSY KUWAIT TO CONTRACTOR CLOUD WS01APR135448 – 25MB KUWAIT NAVAL BASE TO CONTRACTOR CLOUD WS01APR135448 – 25MB KUWAIT NAVAL BASE TO CONTRACTOR CLOUD WS01APR135449 – 25MB VPLS LSA SPEARHEAD KUWAIT TO CONTRACTOR CLOUD WS05APR135487 – W6G1 VPLS CLOUD KUWAIT LISTING VARIOUS SITES TO CONTRACTOR CLOUD

KUWAIT ( LOGICAL W6G1) WS01APR135446 – 155.52 VPLS ARIFJAN KUWAIT TO CONTRACTOR CLOUD KUWAIT These solicitations state they are dated April 27, 2013, which is inaccurate as they have only been on since May 11, and this Pre-Award 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 pre-award protest and the bid is due in May 16, 2013 and does not give a time that the bid is due in on FBO. ( Exhibits 1 )

4 | P a g e The General Counsel U.S. Government Accountability Office May 16, 2013

FACTUAL GROUNDS OF THE PROTEST

1. The RFQ

The Department of Information Systems Agency’s (DITCO) issued the RFQs on April 27, 2013. (Exhibit 1), but the solicitations did not appear in FBO under Kuwait until May 11, 2013. It is not known if this solicitation is conducted under FAR Part 12, Commercial Items, or under FAR Part 13, 14, or 15. This is a solicitation that falls in the Small Business Set-Aside range of $ 3,000 to the overseas SAT threshold according to teaming partners I have discussed this with. The documents are being unfairly withheld and not being released upon request of a U.S. Small Business. SAM.gov cannot be accessed to update the NAICS and to show how ineffective SAM.gov is for responsiveness, Latvian Connection LLC made a technical request in FEBRUARY 2013 about another solicitations and Latvian Connection LLC has been addressing this problem of not being able to add on NAICS codes with the Small Business Administration, SAM.GOVs help desk ( FDS ) and FBO ( Exhibit 2 ). II.

Latvian Connection LLC’s Proposal

Latvian Connection LLC, a Small Business Administration registered company that is a Veteran-Owned Business (VOSB), would like to compete only against other set-aside businesses and see that businesses that are not set-aside excluded from the competition. Further, this solicitation unfairly requires that a commodity that can be purchased by any vendor have past performance of delivering this item over the past 3 years. Latvian Connection LLC believes that if it is competing in a set-aside restricted competition, that it would prevail. Instead, Latvian Connection LLC is experiencing a defacto debarment from this agency.

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

Latvian Connection LLC (VOSB) specifically requests that the GAO level Pre-Award protest be referred to the Small Business Administration for their review.

Latvian Connection LLC also requests that the Comptroller General of the United States ruling be made about the Pre-Award protest of each of these 7 related solicitations:

WS01APR1345451 – 15MB KUWAIT CITY TO CONTRACTOR CLOUD WS01APR1345450 – 15MB KUWAIT EMBASSY KUWAIT TO CONTRACTOR CLOUD WS01APR135448 – 25MB KUWAIT NAVAL BASE TO CONTRACTOR CLOUD WS01APR135448 – 25MB KUWAIT NAVAL BASE TO CONTRACTOR CLOUD WS01APR135449 – 25MB VPLS LSA SPEARHEAD KUWAIT TO CONTRACTOR CLOUD WS05APR135487 – W6G1 VPLS CLOUD KUWAIT LISTING VARIOUS SITES TO CONTRACTOR CLOUD

KUWAIT ( LOGICAL W6G1) WS01APR135446 – 155.52 VPLS ARIFJAN KUWAIT TO CONTRACTOR CLOUD KUWAIT And ask the Department of Information Systems Agency’s (DITCO) to take corrective action and set-aside this solicitation for U.S. Registered Small Business of which Latvian Connection LLC is one of and has an office located in Kuwait and in California. DITCO is unfairly restricting competition and using the UNDER CONSTRUCTION SAM.gov whose inefficiencies in the Migration of Latvian Connection LLC has caused Latvian Connection LLC to spend over 4 months, and 600 hours trying to first get my original DUNS and CAGE codes that worked perfectly fine under CCR and ORCA, but now, there is still a problem with adding NAICS. Latvian Connection LLC is also a consultant in Kuwait and aside from having many teaming partners available to work with under FAR 9.601, Latvian Connection LLC has been assisting many companies whose information has been lost by both SAM.gov and DUNS International. This is a long and ongoing process. It is patently unfair to U.S. Small business that cannot get SAM.gov to function and it is unfair that the United States Government experiment on releasing SAM.gov before it was fully and effectively functional. The GAO themselves have a report about the failures of SAM.gov and its effectiveness to merge 8 different Government Programs into one functioning system. Latvian Connection LLC is a Small Business and has been tortured by the sloth-like responses of FDS to correct its technical problems. ( Exhibit 2 )

5 | P a g e The General Counsel U.S. Government Accountability Office May 16, 2013 President Obama’s Executive Office of the President, Office of Management and Budget issued a Memorandum on the subject of a April 25, 2012 meeting of the Small Business Procurement Group ( Exhibit 16) and this memo from Joseph G. Jordan, Administrator for Federal Procurement Policy, and Karen G. Mills, Administrator of the Small Business Administration state that there were “immediate steps to ensure small businesses are utilized to the maximum extent possible.” Maximizing Opportunities for Small Businesses under the Simplified Acquisition Threshold “

Pursuant to longstanding statutory requirements in the Small Business Administration Act, agencies are required to automatically set aside work for small businesses that is equal to or less that the value of the Simplified Acquisition Threshold (SAT) (generally $ 150,000) unless the contracting officer determines the “rule of two” cannot be met – ie. There is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery. SMI – USA and Trade Links USA are both companies that are in Kuwait and have telecom experience. There are more than enough Small Businesses in Kuwait to effectively solicit these RFQs. There are also countless Small Businesses in the United States that can team with Kuwait companies and legally perform these contracts in Kuwait under Agent Agreements and teaming agreements under FAR 9.601.

Mr. Jordan and Ms Mills go on to say that a third-party analysis of the Federal Procurement Data System suggest that a significant amount of work under the SAT is not going to small businesses, including for products and services in industries where small businesses are typically well represented. This suggests that opportunities for small businesses are being lost, and that agencies must take additional steps to consistently apply set-asides in the manner prescribed by law and regulation .

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 Camp Arifjan’s 408 are not automatically setting aside solicitations under SAT for small business and have not done for years. The legal grounds that support this Pre-Award Protest are:

FAR 2.101 ( Exhibit 3) b. Increased simplified acquisition threshold. Once a contingency operation has been declared, an agency head may increase the SAT from $150,000 to $300,000 for purchases inside the United States and $1 million for purchases outside the United States, when those supplies or services are used to support the contingency operation

. Increasing this threshold will also raise the small business set-aside thresholds. (See FAR 2.101.)

Public Law 95-507, The Small Business Act (Exhibit 6) On October 24, 1978, President Carter signed Public Law 95-507 amending the Small Business Act and the Small Business Investment Act of 1958, making federal procurement contracting more readily accessible to all small businesses. PL 95-507 stipulates that it is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small businesses, small disadvantaged businesses and women-owned businesses. This stipulation also extends to having the The head of each agency is responsible for effectively implementing the small business programs within his agency, including setting and achieving yearly procurement opportunity program (POP) goals for small and small disadvantaged business contracting. FAR 6.203-206 & 19.5/219.5 (Exhibit 4 pg 3) From the Defense Procurement Acquisition and Policy Defense Pricing DOMESTIC PREFERENCE RESTRICTIONS AFFECTING PURCHASES BY, OR ON BEHALF OF, DoD table,

6 | P a g e The General Counsel U.S. Government Accountability Office May 16, 2013

Competitive procedures, but excluding other than small business, small disadvantaged business concerns, historically Black colleges, and universities, and minority institutions, HUBZone small business concerns, and/or service disabled veteran owned small business concerns. Mr. Heard did not exclude local foreign business from this solicitation ( Exhibits 1) and did not do as another contracting officer did when I first encountered this defacto debarment where I wrote to the contracting officer, USAF MSgt Jan P. Malboeuf at DISA, another division of DITCO ( Exhibit 33, 34, 35 ) and he gave Latvian Connection LLC the solicitation upon request. When I wrote to Mr. Heard ( Exhibit 30 ), he simply referred me back to FBO which is unresponsive and ineffective. Mr. Heard is using this feature of FBO to effectively debar Latvian Connection LLC from bidding on the solicitation. Because the SBA have been involved since February with the problems of SAM.gov and the systems inability to modify NAICS, this is another reason that this solicitation should be referred to the Small Business Administration so they can ask SAM.gov and FBO why it is that U.S. Small Businesses are wasting such valuable time with SAM.gov’s technical difficulties. FAR 19.601 (Exhibit 5) (e) Contracting officers, including those located overseas, are required to comply with this subpart for U.S. small business concerns. DoD Compliance Inspection Checklist (Exhibit 7 slide 2) The Air Force have a checklist that is used in their procurements and DITCO also must comply with FAR Part 19 and DFARS 219

Latvian Connection LLC is one U.S. Small Business in Kuwait and there other others. Trade Links USA, SMI, American General Trading, to name but a few Small Businesses in Kuwait, and as the Senior Attorney from the Small Business Administration stated in her review comments to the GAO for B-407391, Protest of Latvian Connection LLC, Request for Reconsideration, Dec 12, 2012, § 15(j) of the Small Business Act, § 19.502-2 of the Federal Acquisition Regulations (FAR), and GAO rulings on small business set-asides, all of which state that small business set-asides below the S The Simplified Acquisition Threshold (SAT) are automatic; in other words, a contracting officer must set-aside the acquisition for small business unless he/she can demonstrate that the agency will not receive at least two competitive offers from small businesses. First, the Small Business Act provides for an automatic set-aside, or reservation, for small businesses for acquisitions valued below SAT as follows: (j)Small business reservation

7 | P a g e The General Counsel U.S. Government Accountability Office May 16, 2013 (1) Each contract for the purchase of goods and services that has an anticipated value of greater than $ 2,500 but not greater than $ 100,000 shall be reserved exclusively for small business concerns unless the contracting officer is unable to obtain offers from two or more small business concerns that are competitive with the market prices and are competitive with regard to the quality and delivery of the goods or services being purchased. 15 U.S.C. § 644 ( emphasis added). In other words, every acquisition under the SAT is reserved for small businesses unless

the contracting officer will be unable to obtain offers from two or more small businesses. Moreover, the statute states that it is up to the contracting officer – not a specific small business advocating for a small business set-aside, not SBA, and not any other entity – to perform adequate market research to be able to make a determination that there are not at least two small businesses capable of performing the requirement.

19.502-1 Requirements for setting aside acquisitions. (a) The contracting officer shall set aside an individual acquisition or class of acquisitions for competition among small businesses when— (1) It is determined to be in the interest of maintaining or mobilizing the Nation’s full productive capacity, war or national defense programs; or (2) Assuring that a fair proportion of Government contracts in each industry category is placed with small business concerns; and the circumstances described in 19.502-2 or 19.502-3

(a) exist.

19.502-2 Total small business set-asides. (a) Each acquisition of supplies or services that has an anticipated dollar value exceeding $3,000 ($15,000 for acquisitions as described in 13.201(g)(1)), but not over $100,000 ($250,000 for acquisitions described in paragraph (1) of the Simplified Acquisition Threshold definition at 2.101), is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery. If the contracting officer does not proceed with the small business set-aside and purchases on an unrestricted basis, the contracting officer shall include in the contract file the reason for this unrestricted purchase. If the contracting officer receives only one acceptable offer from a responsible small business concern in response to a set-aside, the contracting officer should make an award to that firm. If the contracting officer receives no acceptable offers from responsible small business concerns, the set-aside shall be withdrawn and the requirement, if still valid, shall be resolicited on an unrestricted basis. The small business reservation does not preclude the award of a contract with a value not greater than $100,000 under Subpart 19.8, Contracting with the Small Business Administration, under 19.1007(c), Solicitations equal to or less than the ESB reserve amount, or under 19.1305(b) The contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns (but see paragraph (c) of this subsection); and (2) award will be made at fair market prices. Total small business set-asides shall not be made unless such a reasonable expectation exists

, HUBZone set-aside procedures.

The Contracting Officer did not follow this Federal Acquisition Regulation, and instead solicited companies that were not qualified as small businesses. The contracting officer did not set-aside the original RFQ for small business. 19.502-5 Insufficient causes for not setting aside an acquisition. None of the following is, in itself, sufficient cause for not setting aside an acquisition: (a) A large percentage of previous contracts for the required item(s) has been placed with small business concerns. (b) The item is on an established planning list under the Industrial Readiness Planning Program. However, a total small business set-aside shall not be made when the list contains a large business Planned Emergency Producer of the item(s) who has conveyed a desire to supply some or all of the required items. (c) The item is on a Qualified Products List. However, a total small business set-aside shall not be made if the list contains the products of large businesses unless none of the large businesses desire to participate in the acquisition. (d) A period of less than 30 days is available for receipt of offers.

8 | P a g e The General Counsel U.S. Government Accountability Office May 16, 2013 (e) The acquisition is classified. (f) Small business concerns are already receiving a fair proportion of the agency’s contracts for supplies and services. (g) A class small business set-aside of the item or service has been made by another contracting activity. (h) A “brand name or equal” product description will be used in the solicitation. To date, there has not been a legal reason given by the DITCO as to why this contracting office refuses to set-aside solicitations under SAT as directed by: President Obama’s Executive Office – Office of Management and Budget Office of the Under Secretary of Defense Army Senior Procurement Executives Army Small Business Directors Federal Acquisition Regulations Defense Federal Acquisition Regulations The Small Business Act and Small Business Act of 2012 19.502-4 Methods of conducting set-asides. (a) Total small business set-asides may be conducted by using simplified acquisition procedures (see Part 13), sealed bids (see Part 14), or competitive proposals (see Part 15). Partial small business set-asides may be conducted using sealed bids (see Part 14), or competitive proposals (see Part 15

).

Department of Information Systems Agency’s (DITCO) Contracting Officer did not exclude local foreign businesses or large businesses and Corporations from this solicitation ( Exhibit 1) 15 U.S.C. §644(j): “Each contract for the purchase of goods and services that has an anticipated value greater than $2,500 but not greater than $100,000 (recently raised to $3,000 and $150,000) shall be reserved exclusively for small business concernsThe interim rule issued by DoD, GSA and NASA provides for the use of small business set-asides on GSA Schedule contracts but only at the discretion of the federal agency. This is unacceptable in particular because when federal regulators originally passed a rule at section 8.4 of the FAR exempting GSA Schedule contracts from FAR 19, they exceeded the scope of their authority and went against the original congressional intent of the Small Business Act. The interim rule is nothing more than an egregious attempt on the part of federal regulators to grant federal agencies the authority to decide whether or not to recognize the constitutional rights of small business concerns.

.”

Moreover, in 2007 the Small Business Administration offered a legal opinion to the GAO, which stated that, “according to statute and regulations, small business set asides are mandatory for acquisitions valued from $3,000 to $100,000 (upgraded to $150,000 in 2011) and take priority over GSA Schedule contracts. This interpretation is consistent with the declared and unambiguous intent of Congress as it relates to Federal procurement and small Businesses.” In other words, agencies do not have any latitude on the matter. FAR Part 19 also recognizes VOSBs, see FAR § 19.201(a) (“It is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns.”) (emphasis added), although no separate VOSB program like the set-aside program for SDVOSBs is found in FAR Part 19. Latvian Connection LLC is a VOSB Veteran Owned Small Business as applicable to FAR Part 19 and the Small Business Act. FAR 2.101 (Exhibit 3) b. Increased simplified acquisition threshold. Once a contingency operation has been declared, an agency head may

9 | P a g e The General Counsel U.S. Government Accountability Office May 16, 2013 increase the SAT from $150,000 to $300,000 for purchases inside the United States and $1 million for purchases outside the United States, when those supplies or services are used to support the contingency operation. Increasing this threshold will also raise the small business set-aside thresholds. (See FAR 2.101.) Memo from Office of Under Secretary of Defense, July 12, 2012 (Exhibit 15) From Richard Ginman, Director of Defense Acquisition and Procurement Policy Andre’ J. Grudger, Director of Small Business Programs Subject: Increasing Opportunities for Small Business through Small Business Set-Asides under the Simplified Acquisition Threshold.

Nowhere in the memo is there a mention that there is exclusion overseas. (Exhibit 20) In the legal opinion and analysis of B-407391, SBA’s Senior Attorney stated that the GAO gave deference to the SBA’s interpretation of its statute, citing Chevron, U.S.A., Inc. v Natural Resources Defense Council Inc.The General Counsel

, 467 U.S. 837(1984)

U.S. Government Accountability Office April 16, 2013 and the GAO state that wen a statute under consideration creates a program to be administered by the SBA” it is the views of the SBA, rather than [another agency], to which our Office will afford deference.” General Service Administration – Reconsideration

, B-406040.2, Oct 4, 2012. In this case, we are interpreting 15 U.S.C. §§ 644(a) & 644(j), which are set forth in § 15 of the Small Business Act. The Small Business Act specifically provides that: “ Small Business Administration’ ( herein referred to as the Administration)…” 15 U.S.C. § 633. Congress granted SBA the authority to administer the Act. As a result, GAO must afford SBA deference over the FAR in creating policy and interpreting the Small Business Act, especially when the two conflict. SBA’s regulations on this issue state the following:

(f) Contracting Among Small Business Programs (1) Acquisitions Valued At or Below the Simplified Acquisition Threshold. The contracting officer shall set aside acquisition with an anticipated dollar value exceeding the Micro-Purchase Threshold but not exceeding the Simplified Acquisition Threshold (defined in the FAR at 48 CFR 2.101) for small business concerns when there is reasonable expectation that offers will be obtained from at least two small business concerns that are competitive terms of quality, and delivery and award will be made at fair market prices.

10 | P a g e The General Counsel U.S. Government Accountability Office May 16, 2013 The SBA Senior attorney went on to state that 13 C.F.R. § 125.2 (f); 13 C.F.R. §§ 124.503(j), 125.19(b), 126.607(b), 127.503(d), SBA’s regulations require a contracting officer to set-aside all acquisitions valued above or below the simplified acquisition threshold for small businesses, including those awarded and/or performed overseas, if market research indicates that the “rule of two” may be met. As a result, we believe that the FAR is inconsistent with SBA’s regulations and the SBA’s regulations should control. See C & G Excavating, Inc., v U.S, 32 Fed.C1. 231, 239 (1994) (Where there is a conflict between SBA’s regulations on the COC program and the FAR “the SBA’s procedures generally should control, especially considering that the SBA is the agency charged with issuing COC’s, not DoD, GAO, or NASA.”) Hawpe Const., Inc., v U.S.

46 Fed.C1. 571, 582 (2000) (Conflicts between FAR and SBA regulations should be resolved by looking to the SBA’s latest intent on the issue and by relying on the SBA to determine which provision best implements the policies of the agency itself.”)

Finally, we note that GAO has addressed this issue already, with respect to the SBA’s COC Program. In Discount Machinery & Equipment. Inc., the Panama Canal Commission believed that FAR § 19.000(b) precluded the SBA’s review of any Federal procurement if the procuring agency is located outside the United States. The GAO stated that: Based on our review of the Small Business Act and the applicable regulations, we find that the location of the Contracting agency has no bearing on the applicability of SBA’s COC program. Nothing in the Small Business Act imposes any geographic limitation regarding a contracting agency’s location which would exempt procurements from the Act’s coverage. Rather the factor which determines whether a small business concern qualifies for SBA’s COC proceedings is the nationality of the business. The SBA Senior attorney went on to cite one more case to show that the Small Business Act does apply overseas. Discount Machinery & Equipment, Inc.,

70 Comp. Gen. 108, B-240525, 90-2 CPD ¶ 420 (1990) (Emphasis added ) Interestingly, the GAO further states that it believes the Small Business Administration Act applies to agencies located outside the United States.

This legal analysis was given by SBA Senior Attorny Laura Mann Eyester and John Klien, Associate General Counsel for Procurement Law for the SBA. (Exhibit 20) The Air Force is conducting a current solicitation that is a Section 8a Set-Aside with performance in Kuwait and ONLY overseas locations.( Exhibit 18) Air Force Combat Command Postal Operations Service - FA4889-13-R-0005 – FBO and this too is being conducted on www.fbo.gov . “The locations will be Transit Center Manas, Kyrgyzstan, Ali Al Salem Air Base, Kuwait, and Al Dhafra Air Base, UAE, Non-U.S.” Section 8a solicitations are set-asides and monthly they appear from various agencies in Kuwait and the Middle East, yet, Shaw Air Force Base’s 386 ECONS will not set-aside solicitations according to another part of the same Small Business Act that Section 8a is derived from.

II. Contracting officers generally are required to set aside for small business all procurements exceeding $150,000 if there is a reasonable expectation of receiving fair market price offers from at least two responsible small business concerns. Federal Acquisition Regulation (FAR) § 19.502-2(b). A partial set-aside must be made if a total set-aside is not appropriate, the requirement is severable into two or more economic production runs or reasonable lots, and one or more small business concerns are expected to have the technical competence and productive capacity to satisfy the set-aside portion at a reasonable price. FAR § 19.502-3(a). FAR § 19.202-2 generally requires contracting officers, before issuing solicitations, to make “every reasonable effort to find additional small business concerns” and to maximize small business participation. Department of Information Systems Agency’s (DITCO) has made no effort at all to locate small business concerns in Kuwait. This solicitation exceeds $ 3,000 in value.

11 | P a g e The General Counsel U.S. Government Accountability Office May 16, 2013

III.

The Department of Information Systems Agency’s (DITCO) Contracting Office is Unreasonable

By Contracting Officers Paul Heard and Contracting Branch Chief, Lori Walker not conducting a set-aside solicitation as required by the FAR and the Small Business Act, the contracting officer acted unreasonably. This Pre-Award protest clearly demonstrates that this solicitation should first be conducted exclusively for small business set-asides and apply the “rule of two.” By these 2 contracting officer not releasing the solicitation to Latvian Connection LLC knowing the problems of SAM.gov from their agency’s contracting officer USAF MSgt Jan P. Malboeuf is a defacto debarment that is prohibited

According to the GAO’s own CONGRESSIONAL RESEARCH PAPER FOR GAO ON PAST PERFORMANCE R41562 ( Exhibit 20) Because the focus of a responsibility determination is upon the contractor’s ability to satisfy the needs of the government under a particular proposed contract, the responsibility determination process is not designed to exclude contractors with allegedly deficient past performance, or other problems, from future dealings with the government. To the contrary, any use of it to this effect could potentially be found to constitute de facto debarment. The federal courts developed the concept of de facto debarment as a way of ensuring that agencies do not deprive contractors of the due process to which they are entitled in formal exclusion proceedings (i.e., debarment and suspension) by effectively excluding contractors by other means.124 Repeated determinations of nonresponsibility based on the same alleged conduct by the contractor have been found to constitute de facto debarment,125 as have statements or other conduct evidencing an intent to exclude a contractor from future government contracts.126 For example, in Old Dominion Dairy Products, Inc. v. Secretary of Defense, the Air Force was found to have de facto debarred a contractor when the contracting officer determined that the contractor lacked integrity and was nonresponsible after another contracting officer had determined that the contractor was nonresponsible due to billing irregularities.127 Similarly, in Art-Metal-USA, Inc. v. Solomon, the General Services Administration was found to have de facto debarred a contractor when it determined that the contractor was unresponsible for a new contract and suspended its existing contracts in response to concerns that it had supplied “inferior products.”128 In both cases, the courts noted that the challenged agency conduct effectively excluded the contractor without providing the contractor with the notice or opportunity for a hearing that the contractor would have received had they been formally debarred or suspended. The courts thus enjoined the agency conduct that resulted in de facto debarment or granted other relief to the contractor.

5.102 Availability of solicitations required Department of Information Systems Agency’s (DITCO) to utilize the Federal Government’s only FAR recognized GPE for posting the solicitation and for announcing the awards and DITCO failed post its solicitation notice where the FAR requires – on www.fbo.gov (a)(1) Except as provided in paragraph (a)(5) of this section, the contracting officer must make available through the GPE solicitations synopsized through the GPE, including specifications, technical data, and other pertinent information determined necessary by the contracting officer. Transmissions to the GPE must be in accordance with the interface description available via the Internet at http://www.fedbizopps.gov. There is nothing in FAR 5.102 that discusses restricting the release of solicitations to Small Business using a defacto debarment.

IV.

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 had been conducted as a Small Business Set-Aside that fell into the U.S. Dollar value range of $ 3,000 to $ 150,000. 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

12 | P a g e The General Counsel U.S. Government Accountability Office May 16, 2013

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.

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):

• Latvian Connection LLC request copies of all 7 Solicitations • All Market Research regarding Set-Aside Businesses in Kuwait • Signed DD Form 2579, Small Business Coordination Record • Bid Abstract and Evaluations • All emails, memo for record, regarding this solicitation • All that refer or relate to the efforts to obtain competition from U.S. Registered Small Businesses in

Kuwait and the United States that could perform these 7 contracts. • 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

Latvian Connection LLC requests that Department of Information Systems Agency’s (DITCO) conduct the RFQ in accordance with the Small Business Act and the Federal Acquisition Regulations and set-aside this, and all future solicitations under SAT for exclusively Small Business. Solicitations with a value exceeding $ 25,000 to be placed on www.fbo.gov and set-aside exclusively for the authorized small businesses. The GAO should refer this GAO Pre-Award protest to the Small Business Administration. The solicitation should be restricted to U.S. Small Businesses exclusively. The solicitations should be released to Latvian Connection LLC and the solicitation bid due in date should be extended. The GAO should reprimand FDS at their technical failures at why SAM.gov has been destroying CCR registered company’s data and investigate why DUNS Domestic and International have lost thousands of DUNS records. The GAO should inform all Agencies

that the use of Explicit Access as a defacto debarment mechanism is unacceptable and until SAM.gov has been proven to have their NAICS updates repaired without torturous and exasperating and an absolutely abysmal HELP DESK that is the complete opposite of what a HELP DESK is to do. ( Exhibit 2 )

The SBA Senior Lawyer has stated that set-aside are

mandatory exclusively for Small Business and the FAR and SBA rules do apply overseas.

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).

Respectfully submitted,

__________________________ Keven L. Barnes

CEO Latvian Connection LLC